United States Court of Appeals For the First Circuit
No. 09-2273
WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC.; CONGREGACIÓN CRISTIANA DE LOS TESTIGOS DE JEHOVÁ DE PUERTO RICO, INC.,
Plaintiffs, Appellants,
v.
ANTONIO M. SEGARDÍA DE JESÚS, in his official capacity as Secretary of Justice; LUIS G. FORTUÑO, in his official capacity as Governor; HÉCTOR MORALES VARGAS, in his official capacity as Commissioner of the Planning Board of Puerto Rico; HUMBERTO MARRERO RECIO, in his official capacity as Administrator of Regulations and Permits; MUNICIPALITY OF BAYAMÓN; MUNICIPALITY OF CAGUAS; MUNICIPALITY OF DORADO; MUNICIPALITY OF GURABO; MUNICIPALITY OF GUAYNABO; MUNICIPALITY OF PONCE; MUNICIPALITY OF SAN JUAN; MUNICIPALITY OF TRUJILLO ALTO; PACIFICA HOMEOWNERS ASSOCIATION, INC., d/b/a Pacifica; VILLA PAS, d/b/a/ Villa Paz, a/k/a Asociación de Residentes de Villa Paz,
Defendants, Appellees. __________
MUNICIPALITY OF SANTA ISABEL; MUNICIPALITY OF VEGA BAJA; MUNICIPALITY OF YAUCO; CIUDAD INTERAMERICANA DE BAYAMÓN, INC., a/k/a Residentes Urbanización Ciudad Interamericana de Bayamón, Inc.; CIUDAD INTERAMERICANA, INC., d/b/a Ciudad Interamericana, a/k/a Asociación de Residentes Ciudad; EL MONTE DE PONCE, P.R., INC., d/b/a El Monte, a/k/a Asociación de Residentes de la Urbanización El Monte de Ponce, P.R., Inc.; ESTANCIAS DE GRAN VISTA HOMEOWNERS ASSOCIATION, INC., d/b/a Estancias de Gran Vista; ESTANCIAS DE TORTUGUERO, INC., d/b/a Estancias de Tortuguero, a/k/a Asociación Residentes Estancias de Tortuguero, Inc.; ESTANCIAS DE YAUCO, INC., d/b/a Estancias de Yauco, a/k/a Asociación de Residentes Urbanización Estancias de Yauco, Inc.; ESTANCIAS DEL TURABO, INC., d/b/a Estancias del Turabo, a/k/a Asociación de Residentes del Turabo, Inc.; G.H.S. INC., Garden Hills Sur; BAIROA GOLDEN GATE #2, INC., d/b/a Golden Gage II, a/k/a Asociación de Residentes de Bairoa Golden Gate #2; HACIENDA BORINQUEN, INC., d/b/a Hacienda Borinquen, a/k/a Asociación de Residentes Hacienda Concordia, Inc.; HACIENDA CONCORDIA, INC., d/b/a Hacienda Concordia; LOS PRADOS DE DORADO, INC., d/b/a Los Prados Sur, a/k/a Asociación de Propietarios de la Urbanización Los Prados de Dorado, Inc.; MANSIÓN DEL SUR, INC., d/b/a Mansión del sur, a/k/a Asociación de Propietarios de Mansión del Sur, Inc.; PANORAMA HOMEOWNERS ASSOCIATION, INC., d/b/a Panorama State; PARQUE FORESTAL, INC., d/b/a Parque Forestal, a/k/a Asociación de Propietarios de Parque Forestal, Inc.; PASEO MAYOR HOMEOWNERS ASSOCIATION, INC., d/b/a Paseo Mayor; PRADO ALTO EN TORRIMAR, INC., d/b/a Prado Alto, a/k/a Asociación de Propietarios de Prado Alto en Torrimar, Inc.; SANTA CLARA, INC., d/b/a Santa Clara, a/k/a Consejo de Residentes de Santa Clara, Inc.; UNDARE, INC., d/b/a Santa Maria; VALLES DEL LAGO, INC., d/b/a Valles del Lago, a/k/a Asociación Comunidad Valles del Lago, Inc.; VEREDA DEL RÍO, INC., d/b/a Vereda del Río; DEL TURABO, INC., d/b/a Estancias del Turabo, a/k/a Asociación Comunitaria del Turabo, Inc.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before Boudin, Ripple* and Selya, Circuit Judges.
Paul D. Polidoro, with whom Gregory Allen, Associate General Counsel, Legal Department, was on brief for appellants. Daniel M. Gossett, Mayer Brown LLP, Daniel Mach, ACLU Foundation, Program on Freedom of Religion and Belief, William Ramirez, American Civil Liberties Union, Puerto Rico National Chapter, John Reinstein, ACLU of Massachusetts, Zachary L. Heiden, Maine Civil Liberties Union Foundation, and John W. Dineen, Rhode Island Affiliate, ACLU, on brief for the American Civil Liberties Union, the ACLU of Puerto Rico National Chapter, the Maine Civil Liberties Union, the American Civil Liberties Union of Massachusetts, the New Hampshire Civil Liberties Union, and the Rhode Island Affiliate, American Civil Liberties Union, on brief Amici Curiae. Susan I. Peñagaricano-Brown, Assistant Solicitor General, Department of Justice, with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia Casalduc-Rabell, Acting Deputy Solicitor General, and Zaira Z. Girón-Anadón, Acting Deputy Solicitor General, were on
* Of the Seventh Circuit, sitting by designation. brief for appellees Luis G. Fortuño, in his official capacity as Governor, Antonio Sagardía De Jesús, in his official capacity as Secretary of Justice, Héctor Morales Vargas, in his official capacity as Commissioner of the Planning Board of Puerto Rico, and Humberto Marrero Recio, in his official capacity as Administrator of Regulations and Permits. Michael C. McCall with whom Eliezer Aldarondo-Ortiz, Claudio Aliff-Ortiz, Simone Cataldi Malpica and Aldarondo & López Bras were on brief for Municipalities. Luis E. Pabón-Roca, Clarisa Sola Gomez and Faccio & Pabón Roca on brief for the Municipality of Caguas. Pedro R. Vázquez on brief for appellee Municipality of Gurabo. Víctor R. Rodríguez, Jean G. Vidal Font and Cancio, Nadal, Rivera & Diaz, P.S.C. on brief for appellee Municipality of Ponce. Robert Milan and Alejandro Carrasco-Castillo on brief for appellee Municipality of Trujillo Alto. Carlos R. Rodriguez-Garcia and Rodriguez-Garcia, PSC on brief for appellee Pacifica Homeowner's Association, Inc.
February 7, 2011 BOUDIN, Circuit Judge. To abate crime, Puerto Rico
adopted a Controlled Access Law, P.R. Laws Ann. tit. 23, §§ 64-64h
(2008), allowing local entities (called "urbanizations"), organized
by the community but approved by the municipality, to control
street access to areas within towns that have voted in favor of
such plans. Appellants are two corporations operated by the
Governing Body of Jehovah's Witnesses1 that challenged in federal
district court both the statute and its application. Apart from
default or consent judgments against some of the defendants, the
district court denied relief. The background is as follows.
Jehovah's Witnesses accept a religious duty to share the
Bible's message publicly and to proselytize from house to house.
Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton,
536 U.S. 150, 160-61 (2002) (discussing Murdock v. Pennsylvania,
319 U.S. 105, 108 (1943)). They engage in door-to-door ministry,
communicate about the Bible with people on public streets, and
offer religious literature to anyone interested in reading it.
They say that their activities in Puerto Rico have been constrained
by urbanizations acting pursuant to the Controlled Access Law that
is the subject of this appeal.
1 Watchtower Bible and Tract Society of New York, Inc. coordinates the preaching activities of Jehovah's Witnesses throughout the United States and publishes widely distributed religious literature. Congregación Cristiana de los Testigos de Jehová de Puerto Rico, Inc. oversees the 318 congregations of Jehovah's Witnesses in Puerto Rico, which have about 25,000 members.
-4- The Controlled Access Law--adopted in 1987 and amended in
1988, 1992, 1997, and 1998--was prompted by and adopted against a
background of endemic violent crime. Puerto Rico, with a median
household income only about one-third of the U.S. national average
and less than half of every other state, has a homicide rate
quadruple the U.S. national rate and more than double that of
virtually every state.2 It is a major drug transit point, and drug
dealing has led in a number of cases to corruption among local
police.3
The statute, as currently amended, authorizes
municipalities to grant permits to neighborhood homeowners'
associations called urbanizations to control vehicular and
pedestrian access to the public residential streets within the
urbanization (the term referring either to the association or to
the controlled area). In such cases, the area is enclosed with
fencing or other barriers and with one or more entry and exit gates
for pedestrians and vehicles. P.R. Laws Ann. tit. 23, § 64. Some
of the gates are manned by security guards paid by the association;
2 U.S. Census Bureau, Median Household Income for States 4 (Sept. 2009), http://www.census.gov/prod/2009pubs/acsbr08-2.pdf; Fed. Bureau of Investigation, U.S. Dep't of Justice, Crime in the United States, 2009 at tbl.4 (2010), available at http://www2.fbi.gov/ucr/cius2009/data/table_04.html. 3 Nat'l Drug Intelligence Ctr., U.S. Dep't of Justice, Puerto Rico/U.S. Virgin Islands High Intensity Drug Trafficking Area Drug Market Analysis 2, 8 (2009), available at http://www.justice.gov/ndic/pubs32/32788/32788p.pdf.
-5- others are unmanned and opened by a key or by an electric signal
operated by a buzzer linked to the residences within the
urbanization.
In some respects, the controlled access regime is a
counterpart to the private "gated" residential communities that
have developed elsewhere; but in Puerto Rico the streets within the
area were and remain public property, and the municipality is
closely involved in authorizing the urbanization. To obtain a
permit, the residential community must create a residents'
association; propose a plan describing the permanent barriers and
access arrangements; file a petition supported by at least three-
quarters of the residential homeowners; and assume the costs of
installing and operating the plan. P.R. Laws Ann. tit. 23, § 64a.
The statute has various provisions directed to assuring
access, P.R. Laws Ann. tit. 23, §§ 64, 64c, 64g, but the most
important provision here specifies that the controlled access plan
"shall not prevent or hinder residents from outside the community
to use and enjoy sports, recreational and other community
installations, nor from obtaining the services of private
institutions such as schools, churches, hospitals, civic clubs and
others, located in the community," id. § 64b(e). Although the
Commonwealth superintends the permit process,4 each municipality
4 The Puerto Rico Planning Board issues rules for granting controlled access permits, P.R. Laws Ann. tit. 23, §§ 64, 64e, and the Commonwealth Administration of Regulation and Permits
-6- after a public hearing makes the decision whether to approve a
permit application, id. § 64b.
The Puerto Rico Supreme Court has upheld the
constitutionality of the Controlled Access Law, Asociación Pro
Control de Acceso Calle Maracaibo, Inc. v. Cardona-Rodriguez
(Maracaibo), 144 D.P.R. 1 (1997), stressing that the enclosed areas
remain public property, id. at 28-29, 32, and that "if any
regulation approved by any [urbanization] violates constitutionally
protected rights, the same will be considered null and void," id.
at 27-28. Administration of an approved regime is left to the
individual municipality and urbanization. Id. at 26.
Dozens of municipalities have issued permits to hundreds
of urbanizations that encompass in total tens of thousands of
residences. According to the Jehovah's Witnesses' unrebutted data,
urbanizations range in size from a dozen residences to 300 or so,
but the average urbanization encompasses about 125 residences,
which may be houses, apartments, or a mixture of both. The data is
not definitive, but it appears as if about half employ guards and
the balance--likely the smaller ones--are accessible only by keys
or buzzers.
The Jehovah's Witnesses have claimed from the outset that
they have often been prevented from entering urbanizations to
administers the Board's permitting regulations but does not direct the municipalities or urbanizations in their implementation of permits.
-7- engage in constitutionally protected activity, including door-to-
door religious proselytizing. Some controlled access areas, they
say, can be entered only through unmanned, locked gates, and
residents may choose not to admit visitors; others have security
guards who deny entry to proselytizers or who reject all visitors
unless a resident or the association grants them specific approval.
In still others, it is claimed that guards intermittently deny
access to Jehovah's Witnesses.
The Jehovah's Witnesses say that they made various
efforts to achieve some accommodation but without success. On May
18, 2004, appellants brought suit in federal district court in
Puerto Rico seeking declaratory and injunctive relief under 42
U.S.C. § 1983 (2006) against the Governor and three other
Commonwealth-level officials. They alleged that the Controlled
Access Law, facially and as applied, abridged their right to be
secure from unreasonable seizures and their rights to the freedoms
of speech, press, association, religion, and travel.
On August 9, 2005, the district court dismissed the
facial constitutional challenges to the Controlled Access Law but
declined to dismiss the as-applied challenges. Watchtower Bible &
Tract Soc'y of N.Y. v. Sanchez Ramos, 389 F. Supp. 2d 171, 188-89
(D.P.R. 2005). Thereafter the court required the appellants to
include as defendants municipalities and urbanizations that would
be affected by relief. After a survey, the Jehovah's Witnesses
-8- reported that of the 770 controlled-access areas in 59
municipalities covering 96,884 residences, they were unable to
access freely 587 urbanizations in 57 municipalities covering
67,095 residences, either because a security guard denied them
access to a manned gate or because they did not have means to enter
an unmanned gate.
An amended complaint then added as representative
defendants eleven of the municipalities and twenty-two of the
urbanizations and also alleged equal protection and due process
claims. In 2008, eight urbanization defendants agreed to grant
Jehovah's Witnesses "unfettered access," and the district court
entered default judgment against three municipalities and twelve
urbanizations, ordering them to grant Jehovah's Witnesses
unfettered access. Appellants allege that Jehovah's Witnesses
remain unable to gain access to the three defaulting municipalities
and to nine of the defaulting urbanizations.
On August 10, 2009, the district court granted the
remaining defendants' motions for summary judgment, dismissing the
complaint with prejudice and awarding the defendants attorneys'
fees. Watchtower Bible Tract Soc'y of N.Y., Inc. v. Sánchez-Ramos,
647 F. Supp. 2d 103, 125-26 (D.P.R. 2009). The court agreed that
some urbanizations have security guards who deny access to
Jehovah's Witnesses absent permission of an urbanization resident,
id. at 113, 118, and that some have locked gates, which Jehovah's
-9- Witnesses are unable to enter without a resident's permission, id.
at 118 & n.11. But the court concluded that these plans were
acceptable because they all allowed Jehovah's Witnesses to enter if
they coordinated entry with an urbanization resident. Id. at 118-
19.
The Jehovah's Witnesses now appeal from the district
court orders refusing declaratory and injunctive relief and
awarding attorneys' fees to the defendants. They say that the
statute is facially unconstitutional but, if not, that they were
entitled to injunctive relief to address "as-applied" restrictions
on access. The primary challenges pressed on appeal are based upon
the First and Fourth Amendments; but other issues are also before
us including the district court's grant of attorneys' fees to the
Threshold Issues. At the outset, various of the
defending municipalities or urbanizations offer threshold or
related objections to the lawsuit, all of which are without merit
and most of which require little discussion. Several challenge the
standing of the plaintiff organizations to represent the interests
of their Jehovah's Witnesses' members, but the appellants patently
satisfy the usual tests for association standing: the members have
standing; the interests at stake are germane to the organization's
purposes; and participation of individual members is not necessary
-10- to the suit. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S.
333, 343 (1977).
Some municipalities and urbanizations say that claims
against them are moot because they have already been ordered to
grant "unfettered access" to Jehovah's Witnesses. But this at best
can mean that Jehovah's Witnesses are granted access if they
identify themselves and state their purpose; and among the claims
pressed by appellants are colorable contentions that the underlying
statute is unconstitutional, that the permits granted to
urbanizations are all unlawful, and that no one is entitled to ask
them any questions at all. Right or wrong, claims of this breadth
can hardly be moot.
Some appellees say that the appellants' claims are
premature and others say that the claims are belated, being barred
by laches or by the statutes of limitations; some also say that the
claims are barred by the requirements imposed by Monell v.
Department of Social Services, 436 U.S. 658 (1978), on liability
for municipalities or barred by state-action doctrine. The
prematurity defense rings hollow: the appellees apart from the
Commonwealth are municipalities and urbanizations where access
regimes have allegedly been put in place; the record contains
colorable claims that various Jehovah's Witnesses have been denied
access by defendants; and, where the challenge is to the existence
of the regime itself, it can hardly be premature.
-11- Considering next the laches objection, nothing indicates
that the appellants slept on their rights to the prejudice of the
appellees. Vaquería Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464,
480 (1st Cir. 2009). The appellants seemingly made extensive
efforts to resolve the dispute through legislative, administrative,
and judicial avenues; they eventually secured consent or default
judgments against some of the defendants and say that most of these
have not been honored. Nor have appellees shown injury or
prejudice from any delay.
The statute of limitations defense is not properly before
us. This appeal is from a blanket decision that bars declaratory
and injunctive relief by holding the access regime constitutional
as against facial and as-applied challenges. If it is later
determined in light of this decision that unconstitutional actions
have occurred, there will be the time enough to consider defenses
relevant to damages--if particularized damages are ever sought.
As for municipal liability under Monell, any bar to
damage claims is beside the point because damages have not been
sought. Although the Supreme Court recently held that even
plaintiffs who seek only prospective relief under section 1983 must
satisfy Monell's "policy" or "custom" requirement, L.A. Cnty. v.
Humphries, 131 S. Ct. 447, 453-54 (2010), the appellants plainly
allege that their injuries result from the municipalities' policies
or customs. Authorization of controlled access is on its face an
-12- implementation of municipal policy. See Pembaur v. City of
Cincinnati, 475 U.S. 469, 480 (1986).5
Monell aside, some of the municipal appellees seek to
shift responsibility to the urbanizations, who in turn say that
they are private actors immune from the limits imposed on
governments by the First and Fourth Amendments. But the municipal
permits constitute state action. As for the urbanizations, Burton
v. Wilmington Parking Authority, 365 U.S. 715 (1961), and other
decisions hold "that actions of private entities can sometimes be
regarded as governmental action for constitutional purposes."
Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 378 (1995).
The case law in this circuit, consistent with Supreme
Court precedent, is that the "state actor" label can apply where
the nominally private actor is performing an inherently public
function, where the nominally private conduct is inextricably
entangled with official public action, or where the nominally
private conduct is compelled by state law or state actors.6 Here,
5 Whether under Humphries ultimate injunctive relief as to as- applied challenges could run against the municipalities as well as the urbanizations--for example, on a delegated authority theory, Pembaur, 475 U.S. at 481-84--need hardly be determined now. 6 Sanchez v. Pereira-Castillo, 590 F.3d 31, 51-52 (1st Cir. 2009); Alberto San, Inc. v. Consejo de Titulares del Condominio San Alberto, 522 F.3d 1, 4 (1st Cir. 2008); Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4-5 (1st Cir. 2005); see also Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 302 (2001) (entanglement); West v. Atkins, 487 U.S. 42, 56 (1988) (public function); Adickes v. S.H. Kress & Co., 398 U.S. 144, 170 (1970) (compulsion).
-13- we need go no further than the public function test, which is
primarily based on history, see S.F. Arts & Athletics, Inc. v. U.S.
Olympic Comm., 483 U.S. 522, 545 (1987), although other factors are
sometimes in the equation, Brentwood Acad., 531 U.S. at 295.
The Puerto Rico Supreme Court has ruled that the public
streets within the urbanization remain public property despite
their enclosure.7 Regulating access to and controlling behavior on
public streets and property is a classic government function.
Marsh v. Alabama, 326 U.S. 501, 506-09 (1946) (access to streets in
company town); see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
163 (1978) (police protection); Evans v. Newton, 382 U.S. 296, 301-
02 (1966) (park management). Thus, under governing precedent, the
regulation of access to the public streets is a public function.
The constitutional claims. Turning to the merits, we
begin with the First Amendment, which is binding in Puerto Rico.
Ramírez v. Sánchez Ramos, 438 F.3d 92, 94 n.1 (1st Cir. 2006). In
general, our review of claims in the present procedural setting is
de novo. Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport
7 Maracaibo, 144 D.P.R. at 28 ("[T]he permit that the municipality grants must be interpreted and enforced according to the public nature of those roads." (quoting Caquías v. Asociación de Residentes de Mansiones de Río Piedras, 134 D.P.R. 181, 207-08 (1993))); id. at 29 ("In this context, the streets are goods of public use and domain irrespective of the jurisdiction under which they may be, whether municipal or state."); id. at 32 ("[T]he concept of access control implies that the public nature of residential streets is preserved." (quoting Caquías, 134 D.P.R. at 186)).
-14- Comm'n, 610 F.3d 8, 11 (1st Cir. 2010). The facial and as-applied
challenges present different issues--the former is more far-
reaching--but certain of the constitutional principles and
precedents are common to both and with them we begin.
Access to public streets and property for purposes of
expression, including door-to-door religious proselytizing, has
long been protected by the First Amendment. Vill. of Stratton, 536
U.S. at 160-62; see also Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 44 (1983).8 But virtually every
constitutional principle or protection, including the First
Amendment, is limited by others, Vill. of Stratton, 536 U.S. at
162; Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17 (1976), and a
balancing of competing rights and interests is generally inherent,
Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 100 F.3d
175, 182 (1st Cir. 1996); see also Denver Area Educ. Telecomm.
Consortium, Inc. v. FCC, 518 U.S. 727, 740-41 (1996) (plurality
opinion).
Public streets and sidewalks are presumptively
traditional public forums, New Eng. Reg'l Council of Carpenters v.
Kinton, 284 F.3d 9, 20 (1st Cir. 2002), and the Supreme Court has
8 While freedom of speech is the paradigm interest asserted, appellants invoke as well freedom of press, religion, association, and travel. We do not see how our analysis would be altered by stressing that the speech is for religious purposes, sometimes through the press, and that travel is the means by which the proselytizing occurs.
-15- repeatedly reaffirmed their status as places for expressive
activity, e.g., Christian Legal Soc'y Chapter of the Univ. of Cal.,
Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2986 n.14
(2010). The public streets and sidewalks within the urbanizations
remain public property for public use, see Maracaibo, 144 D.P.R. at
28-29, 32, and so are traditional public forums.
The case would be different if the Commonwealth sought to
alter the physical character, principal uses, or public ownership
of the streets within the urbanizations to negate their status as
public forums. The government can dispose of its property, see
Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,
699-700 (1992) (Kennedy, J., concurring in judgment); Hawkins v.
City of Denver, 170 F.3d 1281, 1287 (10th Cir.), cert. denied, 528
U.S. 871 (1999), although just how is an open question, see United
States v. Grace, 461 U.S. 171, 179-80 (1983); U.S. Postal Serv. v.
Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 133 (1981). But
the question does not arise here.
However, even in traditional public forums circumstances
may justify restrictions.9 In public forums, viewpoint-based
restrictions are prohibited, and any content-based restriction must
satisfy strict scrutiny, but reasonable time, place, and manner
9 E.g., Hill v. Colorado, 530 U.S. 703 (2000) (picketing of abortion clinic); Burson v. Freeman, 504 U.S. 191 (1992) (electioneering activity near polling place); Frisby v. Schultz, 487 U.S. 474 (1988) (picketing of individual residence).
-16- limitations are permissible, Pleasant Grove City v. Summum, 129 S.
Ct. 1125, 1132 (2009), that is, those "justified without reference
to the content of the regulated speech," "narrowly tailored to
serve a significant governmental interest," and "leav[ing] open
ample alternative channels for communication of the information,"
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
(1984)). Judicial review invites "intermediate scrutiny" by the
reviewing court. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8,
12 (1st Cir. 2004).
Admittedly, the limited access regime is not confined to
those who propose to speak; and in some cases, such as a general
tax that happens to affect newspapers, nothing beyond due process
rationality is required, see Minneapolis Star & Tribune Co. v.
Minn. Comm'r of Revenue, 460 U.S. 575, 581 (1983). But here the
blanket restriction on unapproved entry has a foreseeable,
significant, and direct impact on public speech in the
urbanization; and the lens of the public forum doctrine is
appropriate.
Public forum doctrine recognizes that, by denying speakers access to those areas in which potential listeners are most likely to concentrate, even a law not directed at speech can amount to an infringement of the right to free speech . . . .
Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev.
1175, 1208-09 (1996).
-17- So, while the purpose of the regime is relevant,
intermediate scrutiny remains appropriate--but only intermediate
scrutiny, for no one claims that the statute aims at suppressing
content. Nor do the Jehovah's Witnesses deny that crime control is
a serious governmental interest; a "primary concern" of government
is "a concern for the safety and indeed the lives of its citizens,"
United States v. Salerno, 481 U.S. 739, 755 (1987).10 However, the
Jehovah's Witnesses and amicus ACLU say that the regime does not
serve this interest, asserting that crime rates have increased
since the statute's adoption.
The question is whether the legislature could reasonably
deem the access control measure effective and more so than other,
less intrusive alternatives. See Vill. of Stratton, 536 U.S. at
169; id. at 170-71 (Breyer, J., concurring). Indisputably, the
Puerto Rico legislature supposed that such a regime would help
protect residential neighborhoods. See 1987 P.R. Laws 63 (Act
No. 21 Statement of Motives); see also Maracaibo, 144 D.P.R. at 28,
37 (discussing the Controlled Access Law's purpose). We cannot
deem that view unreasonable, for it is easy to suppose that some
10 The crime control rationale makes this case different from many traditional public forum cases in which public safety was not seriously in issue or was not a plausible rationale. E.g., Vill. of Stratton, 536 U.S. at 169; id. at 170-71 (Breyer, J., concurring); Grace, 461 U.S. at 182; Martin v. City of Struthers, 319 U.S. 141, 144-47 (1943); Schneider v. State (Town of Irvington), 308 U.S. 147, 162 (1939); Lovell v. City of Griffin, 303 U.S. 444, 451 (1938).
-18- criminals would be deterred by the need to pass by guards who can
ask questions and remember faces.11
Accordingly, we agree with the district court that the
statute is not unconstitutional on its face. Such a challenge
ordinarily requires that the statute be invalid in every possible
application or, in some First Amendment contexts, that it be
clearly overbroad in some applications that cannot or should not be
severed. Members of the City Council of L.A. v. Taxpayers for
Vincent, 466 U.S. 789, 796 (1984); McGuire v. Reilly, 260 F.3d 36,
47 (1st Cir. 2001). "Some applications" refers to applications
embedded in the statute.
Here, the statute explicitly confirms that innocent
visits are permitted, P.R. Laws Ann. tit. 23, §§ 64b(e), 64c, and
it has been so interpreted by the Puerto Rico Supreme Court,
Maracaibo, 144 D.P.R. at 38 & n.14. Nothing in the statute
endorses the principal inhibitions of which appellants complain.
The statute says nothing of unmanned locked gates or buzzers
controlled solely by residents, nor does it empower guards to deny
access unless a resident approves. At various points--although not
on this appeal--the Jehovah's Witnesses indicated that they would
11 Cf. De la O v. Hous. Auth. of El Paso, 417 F.3d 495, 504 (5th Cir.), cert. denied, 546 U.S. 1062 (2005) (upholding restriction on access to public housing project for crime-control reasons); Daniel v. City of Tampa, 38 F.3d 546, 550 (11th Cir. 1994), cert. denied, 515 U.S. 1132 (1995) (same).
-19- be content if the statute itself were fairly administered to
provide them with effective access.
Nevertheless, the record indicates that the regime as
administered does bear unreasonably on Jehovah's Witnesses' access
to public streets, and to that subject we now turn. "Security is
not a talisman that the government may invoke to justify any burden
on speech (no matter how oppressive)." Bl(a)ck Tea Soc'y, 378 F.3d
at 13 (emphasis omitted). Narrow tailoring, which forbids
burdening substantially more speech than necessary, Asociación de
Educación Privada de P.R., Inc. v. García-Padilla, 490 F.3d 1, 16
(1st Cir. 2007), may require reasonable tempering at the
application stage.
The first problem is the use in some urbanizations of
exclusively a key or buzzer system that gives residents a veto
right over access. A regime of locked, unmanned gates completely
barring access to public streets will preclude all direct
communicative activity by non-residents 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.
Conceivably, a controlled access area might be very
small, its residents' resources very limited, or both: some
urbanizations have as few as one or two dozen residences. The
-20- district court will have to determine whether and when it is
reasonable to rely only on a buzzer system or some limited guard
access (say, for a few hours a day on predesignated days each
week). Finding such accommodations is best done with help from the
parties, but the district court can certainly set general standards
and categories without area by area adjudications.
As the statute places no restriction on the size of an
urbanization, the presumption--even if rebuttable--is in favor of
some access, cf. Frisby, 487 U.S. at 486 (generally directed
expression "may not be completely banned in [public] residential
areas"); Perry Educ. Ass'n, 460 U.S. at 45 (in traditional public
forums "the government may not prohibit all communicative
activity"). And, in proposals for exemption or very limited
access, the urbanization proposing the limitation should come
forward with a proposal and bear the burden of justification.
As for guarded gates, the Jehovah's Witnesses say that
some deny access to all Jehovah's Witnesses--or anyone else not
approved by a local resident; others (allegedly) admit or deny
access at the guards' whim. In our view, a security guard may ask
a non-resident visitor where the visitor is headed and also to
state the purpose of the visit. And, although a closer question,
we think that the Constitution permits a guard to ask a visitor for
his or her name and identification--a question often asked at the
entrance of public federal buildings like courthouses, United
-21- States v. Smith, 426 F.3d 567, 570, 574-75 (2d Cir. 2005), cert.
denied, 546 U.S. 1204 (2006).12
True, an automatic request for the visitor's name poses
a close question, given case law recognizing a right of anonymous
speech.13 But the cases are distinguishable: giving a guard a name
and identification is a narrower and less threatening imposition on
privacy than requiring one to register for a permit, to wear an
identification badge in distributing literature, or to disclose
membership information. And the request is more closely related to
the security rationale than the weaker purposes that lay behind the
obligations that the Supreme Court disallowed.
Still, the safer course would be to ask for names and
identification only where cause exists. If a guard does have a
reasonable suspicion (based on objective circumstances) that a non-
resident visitor may engage in criminal activity, the guard may
insist on answers to more intrusive questions as a condition of
access or may withhold access while calling the police to
12 The Puerto Rico Supreme Court may have disallowed name and identification requests save in a more limited class of cases, Maracaibo, 144 D.P.R. at 38, although presumably not where the guard has a reasonable suspicion. To the extent that the Puerto Rico Supreme Court's determination rests on local law, we have no authority to immunize urbanizations. 13 See, e.g., Vill. of Stratton, 536 U.S. at 166-67; Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 197-204 (1999); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-47 (1995); Talley v. California, 362 U.S. 60, 62-65 (1960); Bates v. City of Little Rock, 361 U.S. 516, 522-25 (1960); NAACP v. Alabama, 357 U.S. 449, 460-63 (1958).
-22- investigate. Objective circumstances also serve to ensure that any
restriction on access is sufficiently cabined so that guards do not
exercise undue discretion. See Thomas v. Chi. Park Dist., 534 U.S.
316, 323 (2002).
Such limited questions do not violate the Jehovah's
Witnesses' rights of free speech, including anonymous or
spontaneous speech. The narrow tailoring rule is that a time-
place-manner restriction may not burden substantially more than
necessary to serve its purpose, not that it may not burden speech
at all. Asociación de Educación Privada, 490 F.3d at 16 (citing
Ward, 491 U.S. at 800). By contrast to the regime disallowed in
Village of Stratton, here no registration is imposed and
significant delay will occur only where there is a fact-specific
basis for it.
Turning now to the Jehovah's Witnesses' Fourth Amendment
challenge, they say that they are subject to an unlawful "seizure"
when they are brought to a halt at access points set up around the
enclosures. The Fourth Amendment applies to Puerto Rico through
the Fourteenth Amendment. Maldonado v. Fontanes, 568 F.3d 263, 270
n.2 (1st Cir. 2009). As already explained, the use of nominally
private guards does not avoid the issue because the urbanizations
and their guards qualify as state actors under the public function
test. See also Romanski v. Detroit Entm't, LLC, 428 F.3d 629, 636-
-23- 38 (6th Cir. 2005), cert. denied, 549 U.S. 946 (2006) (applying the
public function test to private guards).
In ordinary usage, no seizure occurs at the barrier; one
denied access to a government building, for example, can hardly
claim to be "seized." See Sheppard v. Beerman, 18 F.3d 147, 153
(2d Cir.), cert. denied, 513 U.S. 816 (1994) (excluded visitor not
"seized" where "'free to go anywhere else that he desired,' with
the exception of [the judge's] chambers and the court house"). The
Jehovah's Witnesses, in response, rely mainly on cases involving
police roadblocks of vehicles, but these cases say or assume that
detention--at least temporary detention--is the design or effect.
Often a roadblock is aimed directly at arresting
violators in the vehicle, and--even without this motive--the usual
roadblock effects an intentional detention or "seizure" of the
vehicle and those within it.14 No one thus halted imagines himself
free merely to turn and drive away without permission. As Delaware
v. Prouse, 440 U.S. 648 (1979), explained, "[t]he Fourth and
Fourteenth Amendments are implicated in this case because stopping
an automobile and detaining its occupants constitute a 'seizure'
within the meaning of those Amendments, even though the purpose of
14 E.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (roadblock to detect drug trafficking); Mich. Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (roadblock to detect drunk driving); United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976) (roadblock to detect unlawful immigration); see also Illinois v. Lidster, 540 U.S. 419 (2004) (roadblock to seek information about hit-and-run crime).
-24- the stop is limited and the resulting detention quite brief." Id.
at 653. In other cases, the premise is implicit.15
By contrast, a Jehovah's Witness halted at an
urbanization barrier need not answer questions or remain at the
barrier; anyone so questioned is free to walk or to drive away. As
long as a reasonable person would feel free to leave or, if not
desiring to leave, would feel free to terminate the encounter, no
Fourth Amendment seizure has occurred. Brendlin v. California, 551
U.S. 249, 255 (2007). This is so even if refusal to answer
questions precludes entry into the urbanization. In a different
context, United States v. Mendenhall, 446 U.S. 544 (1980), Justice
Stewart stated:
As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.
Id. at 554 (principal opinion).16
15 E.g., Lidster, 540 U.S. at 422, 425 (information-seeking roadblock deemed a compelled stop of each vehicle followed by a detention of its occupants for brief questioning); Edmond, 531 U.S. at 35 (drug-interdiction roadblock described as compelling an involuntary stop followed by an open-view examination and detention for five minutes or less); Sitz, 496 U.S. at 447 (sobriety roadblock called an involuntary stop followed by a brief detention and examination for signs of intoxication). 16 See United States v. Faulkner, 450 F.3d 466, 469-70 (9th Cir. 2006) (information-station roadblock at a national park entrance involved a seizure because a reasonable person would have believed that he was not free to leave the information station); Maxwell v. City of New York, 102 F.3d 664, 668 n.2 (2d Cir. 1996), cert.
-25- Pertinently, see California v. Hodari D., 499 U.S. 621,
626 & n.2 (1991), at common law an arrest required confinement
(actual or constructive), and merely "preventing another from going
in a particular direction" would not itself qualify. Restatement
(Second) of Torts § 36(3) (1965) (discussing false imprisonment, a
common law tort for unlawful arrest); see Perkins, The Law of
Arrest, 25 Iowa L. Rev. 201, 203 (1940). After police officers
enclosed and blocked a footpath, a trespass action for unlawful
detention failed, the court holding that no confinement occurs when
"one man merely obstructs the passage of another in a particular
direction . . . leaving him at liberty to stay where he is or to go
in any other direction if he pleases." Bird v. Jones, (1845) 115
Eng. Rep. 668, 672; 7 Q.B. 742, 751-52 (Patteson, J.).
Yet even were a court to treat the urbanization barrier
as a seizure, "'the ultimate touchstone of the Fourth Amendment,'
[the Supreme Court has] often said, 'is reasonableness,'" Michigan
v. Fisher, 130 S.Ct. 546, 548 (2009) (quoting Brigham City v.
Stuart, 547 U.S. 398, 403 (2006)) (internal quotation marks
omitted). "[N]either a warrant nor probable cause, nor, indeed,
any measure of individualized suspicion, is an indispensable
denied, 522 U.S. 813 (1997) (in sustaining a neighborhood-safety checkpoint, observing that "simply turning away a vehicle when no legitimate reason for entry is given may not constitute a search or a seizure for Fourth Amendment purposes"). But see Mills v. District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir. 2009) (assuming without discussion that a neighborhood-safety checkpoint was a seizure).
-26- component of reasonableness in every circumstance." Nat'l Treasury
Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989) (emphasis added).
Where the aim is other than detecting evidence of
ordinary criminal wrongdoing to apprehend violators, see Lidster,
540 U.S. at 423, the Court weighs "the gravity of the public
concerns served by the seizure, the degree to which the seizure
advances the public interest, and the severity of the interference
with individual liberty."17 The Court has upheld vehicular
roadblocks and brief inquiries of all drivers, without individual
probable cause or suspicion, for certain purposes and with certain
safeguards. United States v. William, 603 F.3d 66, 68 (1st Cir.
2010).
Here, the purpose is to protect communities endangered by
crime; but the means--the barriers--are designed not to secure the
arrest of would-be criminals but merely to ask entrants to explain
their purpose, and the "seizure" (if one is assumed to be
occurring) involves no "detention" because the would-be entrant is
not held or searched but remains free to leave. Cf. United States
v. Fraire, 575 F.3d 929, 933 (9th Cir. 2009) (upholding checkpoint
at national park entrance to deter poachers because "[t]he goal was
prevention, not arrests").
17 Brown v. Texas, 443 U.S. 47, 51 (1979); see also Lidster, 540 U.S. at 427-28 (balancing these factors); Sitz, 496 U.S. at 450-55 (same); Martinez-Fuerte, 428 U.S. at 556-64 (same).
-27- There is a long history of general area-entry searches.
See generally 5 W. LaFave, Search and Seizure §§ 10.6-10.7, at 278-
331 (4th ed. 2004). Especially pertinent is language in Chandler
v. Miller, 520 U.S. 305 (1997), where the Supreme Court, although
invalidating Georgia's requirement that candidates for state office
pass drug tests, reiterated that
where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as "reasonable"--for example, searches now routine at airports and at entrances to courts and other official buildings.
Id. at 323. Compared to an airport search, a few questions about
identity and purpose for entering an urbanization seem tame indeed.
In sum, the case before us is novel and difficult. But
Puerto Rico's crime problems are unusually serious and its
legislature's solution, albeit an experiment, was democratically
adopted and is far from irrational. A court's task is to assure
breathing room for legitimate communicative activity. Although we
reject the facial challenge to the statute, the precedents on
access to public places require fine tuning of the statute's local
administration and, for that, further proceedings are required.
On remand the district court needs to take prompt action
to bring the municipalities and urbanizations into compliance with
this decision. In the case of urbanizations that already provide
regularly manned guard gates, they must provide entry to Jehovah's
Witnesses who disclose their purpose and identity, subject only to
-28- the limitations already set forth above. It is unclear why it
should take any substantial time in such cases to give the
necessary instruction or what excuse could be given for failing to
make a good faith effort at prompt implementation.
Where an urbanization currently provides access only
through a locked gate or a buzzer operated solely by residents,
adjustment may take longer. Those prepared to provide guards
during daylight hours need a brief period to hire and to train
them. And any urbanization that seeks to justify more limited
access arrangements (for example, manned gates for limited periods
on designated days) or an exemption because of small size needs a
chance to propose and defend such a request. The district court
can adopt categorical guidelines and make use of magistrate judges
or other facilitators as needed.
To assure compliance might seem a daunting task because
of the number of urbanizations, but we would expect the district
court--if confronted with undue delay or repeated noncompliance--
promptly to direct open access for all visitors unless and until
the urbanization brings itself into compliance. Further,
unreasonable delay creates a risk of contempt and of damages and
attorneys' fees, 42 U.S.C. § 1988(b); see Boston's Children First
v. City of Boston, 395 F.3d 10, 14 (1st Cir. 2005), providing an
additional incentive for defendants to act promptly.
-29- Accordingly, we affirm the district court's dismissal of
the facial challenge to the Controlled Access Law but vacate the
district court order denying declaratory and injunctive relief on
the as-applied claims; we also vacate the order granting attorneys'
fees and costs against the Jehovah's Witnesses because its premise
is undermined by our decision; and we remand the case for further
proceedings consistent with this decision. Each side has obtained
something from this appeal and each shall bear its own costs.
It is so ordered.
-30-