WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. ET AL., Plaintiffs, Appellants/Cross-Appellees,
MUNICIPALITY OF SAN JUAN ET AL., Defendants, Appellees/Cross-Appellants, ALEJANDRO GARCÍA PADILLA, IN HIS OFFICIAL CAPACITY AS GOVERNOR, ET AL., Defendants, Appellees
Petition for certiorari filed at, 02/18/2015
[Copyrighted Material Omitted]
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Gustavo A. Gelpí, U.S. District Judge.
Paul D. Polidoro, with whom Gregory Allen and Nora Vargas Acosta were on brief, for plaintiffs.
Rosa Marí a Cruz-Niemiec, with whom Cruz Niemiec & Vázquez was on brief, for defendant Municipality of San Juan.
Michael C. McCall, with whom Luis Pabón Roca, Clarisa Solá Gómez, Claudio Aliff-Ortiz, Ivan Pasarell-Jove, Rafael E. Rivera-Sánchez, Pedro R. Vázquez, III, Edgar Hernández Sánchez, Robert Millá n, The Law Offices of Michael Craig McCall, Faccio & Pabón Roca, Aldarondo & Lopez Bras, P.S.C., Pedro R. Vázquez Law Office, Cancio, Nadal, Rivera & Dí az, P.S.C., and Millan Law Offices were on various briefs, for remaining seven municipal defendants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General, Department of Justice, with whom Margarita L. Mercado-Echegaray, Solicitor General, was on brief, for Commonwealth defendants.
Before Lynch, Chief Judge, Ripple[*] and Selya, Circuit Judges.
SELYA, Circuit Judge.
Unlike other jurisdictions, Puerto Rico allows private citizens to maintain gated residential communities that incorporate public streets. This unorthodox configuration produces an awkward amalgam of the public and private sectors, which makes
the task of applying traditional First Amendment jurisprudence something of an adventure. A predictable result is the sort of dissonance that is apparent here.
This ten-year-old litigation is no stranger to this court. See
Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Sagardí a De Jesús (Watchtower I), 634 F.3d 3 (1st Cir.), reh'g denied, 638 F.3d 81 (1st Cir. 2011); Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Colombani (Watchtower II), 712 F.3d 6 (1st Cir. 2013). It traces its roots to the desire of the Jehovah's Witnesses to access public streets within gated communities in order to spread their religious message. This desire puts their legitimate First Amendment rights on a collision course with Puerto Rico's decision to allow residents to protect themselves against violent crimes by establishing gated communities that incorporate public streets. Seeking to avoid this collision and paying heed to our prior opinions in this litigation, the court below carefully balanced competing concerns and devised a practical solution. That solution satisfied no one, and both the Jehovah's Witnesses and the affected municipalities appeal. After careful consideration, we uphold the district court's solution but modify it in some aspects and remand the case for further proceedings consistent with this opinion.
This case has a twisted procedural history. We assume the reader's familiarity with our earlier opinions and rehearse here only those events necessary to place the pending appeals into perspective.
In response to an epidemic of violent crimes, the Commonwealth enacted the Controlled Access Law (CAL), P.R. Laws Ann. tit. 23, § § 64-64h, which allows municipalities to authorize neighborhood associations to erect gates enclosing public streets. See
Watchtower I, 634 F.3d at 6-7; see also P.R. Laws Ann. tit. 23, § 64. These gated communities are called " urbanizations."
Even though the CAL and its regulations set a framework for administration of the controlled access scheme, the permitting process is in the hands of the municipalities. They may adopt rules " needed to carry out the purposes of" the CAL. P.R. Laws Ann. tit. 23, § 64e; see Asoc. Pro Control de Acceso Calle Maracaibo, Inc. v. Cardona Rodriguez (Maracaibo), 144 D.P.R. 1, 26, 1997 Juris P.R. 127 (P.R. 1997) (explaining that municipalities have " the authority to define the system to be used and to establish the pertinent and appropriate requisites" for each proposed urbanization). A permit may not be revoked once it is recorded, but a municipality may impose sanctions for violations of applicable rules and regulations. See P.R. Laws Ann. tit. 23, § 64d.
In 2004, two corporations operated by the governing body of the Jehovah's Witnesses brought suit against the Commonwealth defendants under 42 U.S.C. § 1983. Their complaint alleged that the CAL, on its face and as administered, unconstitutionally infringed the Jehovah's Witnesses' right to engage in door-to-door ministry. In support, they asserted that access to certain urbanizations was routinely denied by security guards and that unmanned gates, accessible solely by resident-controlled keys or buzzers, were effectively impenetrable to nonresidents.
The Commonwealth defendants moved to dismiss the complaint. The district court granted the motion as to the plaintiffs' facial challenge to the CAL but declined to address the as-applied challenge in the absence of a developed record.
Shortly thereafter, the court directed the plaintiffs to file an amended complaint " includ[ing] as defendants the specific communities which will be affected by any decision of this Court." The plaintiffs elected to sue only a " representative" sampling of municipalities.
After discovery, the parties cross-moved for summary judgment on the as-applied claims. The district court granted the defendants' motions, see
Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Sánchez-Ramos, 647 F.Supp.2d 103, 125-26 (D.P.R. 2009), and the plaintiffs appealed. We affirmed the dismissal of the plaintiffs' facial challenge but vacated the judgment on the as-applied claims and remanded for further proceedings. See
Watchtower I, 634 F.3d at 17.
With respect to manned urbanizations, we exhorted the district court to " take prompt action" to ensure that guards provide access to Jehovah's Witnesses who identify themselves and state their purpose. Id. We noted that unmanned urbanizations by their very nature gave " residents a veto right over access," and stated:
A regime of locked, unmanned gates completely barring access to public streets will preclude all direct communicative activity by nonresidents in traditional public forums, and, absent a more specific showing, cannot be deemed " narrowly tailored." Thus, a manned guard gate for each urbanization is required, unless the urbanization carries a burden of special justification.
Id. at 13. While recognizing that remediation could not be accomplished overnight, we assumed that some unmanned urbanizations might hire and train guards, whereas others that sought " to justify more limited access arrangements (for example, manned gates for limited periods on designated days) or an exemption because of small size" would " need a chance to propose and defend such a request." Id. at 17. In denying rehearing, we clarified that we had made no finding of liability on the part of any of the defendants and explained that " any municipality or urbanization is free on remand to urge that it did not improperly bar access or discriminate." Watchtower Bible & Tract Soc'y, 638 F.3d at 83.
The district court conducted a further hearing and, on February 1, 2012, issued an order responding to our decision. It directed each municipal defendant to certify within two months that all manned urbanizations within its borders had been instructed to provide immediate access to Jehovah's Witnesses who disclose their purpose and identity. In addition, it gave the municipalities time to prepare and submit action plans tailored to the unmanned urbanizations in their respective jurisdictions. Finally, the court ordered that, going forward, municipalities should not issue permits for new unmanned urbanizations absent some special justification.
At the same time, the court dismissed the Commonwealth defendants sua sponte. When objections ensued, the district court requested briefing on the issue. After considering the parties' submissions, the court reaffirmed the dismissal of the Commonwealth defendants. The plaintiffs attempted to take an immediate appeal from this ruling. We ...