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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA ) ) ) ) ) ) Plaintiffs, ) ) vs.

) ) THE CITY OF JACKSONVILLE, SAMMY PHILLIPS, as the ) Mayor of Jacksonville, THE CITY COUNCIL OF ) JACKSONVILLE, MICHAEL G. YANIERO, in his official ) capacity as Jacksonville Chief of Police, and LT. SEAN MAGILL, ) in his official capacity as an officer of the Jacksonville Police ) Department, ) ) Defendants. ) DR. BARTOLO SPANO, CRAVEN-PAMLICO CHRISTIAN COALITION, a nonprofit organization, JERRY SCHILL, JIM BOTTCHER, PAT OCONNELL, KEN LIMMER, ARTEMIO ANEUBER, and MARY ANEUBER,

Case No. 11-cv-00187

COMPLAINT FOR INJUNCTIVE RELIEF, DECLARATORY RELIEF, AND RELIEF PURSUANT TO 42 U.S.C. 1983 NOW COME Plaintiffs, Dr. Bartolo Spano, Craven-Pamlico Christian Coalition, Jerry Schill, Jim Bottcher, Pat OConnell, Ken Limmer, Artemio Aneuber, and Mary Aneuber, by and through their undersigned counsel, and complain of Defendants as follows: INTRODUCTION 1. Plaintiffs are a group of local citizens who have conducted peaceful

demonstrations at the Crist Clinic, an abortion clinic in Jacksonville, North Carolina, and wish to continue to do so. Plaintiffs challenge the facial validity of Jacksonville Municipal Code provisions governing permits for public parades and assemblies. The City of Jacksonville has enacted a facially overbroad time, place and manner permit ordinance that lacks a small group exception. Moreover, City officials unfairly and unconstitutionally applied the ordinance against Plaintiffs when they purportedly applied an unwritten policy restricting free speech to paved

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sidewalksto avoid the administrative inconvenience of locating public rights of way on unpaved sidewalks. In short, Defendants have prohibited Plaintiffs from communicating their pro-life message at a location where they can actually be seen and heard by the audience they want to reachpatrons entering and leaving the Crist Clinic. Plaintiffs seek injunctive relief, declaratory relief, and statutory damages. PLAINTIFFS 2. Dr. Bartolo Spano is a resident of New Bern, North Carolina. He is a clinical

psychologist. He is the named applicant on the now-revoked permit to demonstrate on the public right of way outside the Crist Clinic. 3. Craven-Pamlico Christian Coalition is a nonprofit organization dedicated to

educating the public on issues of moral and political concerns. It promotes pro-life and profamily values. It is affiliated with the Christian Coalition of America, a 501(c)(4) nonprofit organization. 4. Jerry Schill is a resident of Cove City, North Carolina. He participates in and

organizes some of the demonstrations at the Crist Clinic. 5. Jim Bottcher is a resident of New Bern, North Carolina. He participates in

demonstrations at the Crist Clinic. 6. Pat OConnell is a resident of New Bern, North Carolina. He participates in

demonstrations at the Crist Clinic. 7. Ken Limmer is a resident of New Bern, North Carolina. He participates in

demonstrations at the Crist Clinic. 8. Artemio and Mary Aneuber are residents of New Bern, North Carolina. They

participate in demonstrations at the Crist Clinic.

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DEFENDANTS 9. The City of Jacksonville, North Carolina ("Jacksonville") is an incorporated

municipal authority, chartered by the North Carolina General Assembly to act with governmental powers granted by statute and the state constitution. 10. 11. 12. the mayor. 13. City Council. JURISDICTION AND VENUE 14. This action raises federal questions under the First and Fourteenth Amendments Sammy Phillips is the Mayor of Jacksonville and a member of the Jacksonville Sean Magill is a lieutenant in the Jacksonville Police Department. Michael Yaniero is the Chief of Police for the Jacksonville Police Department. The Jacksonville City Council is comprised of seven council members, including

of the United States Constitution and under federal law, 28 U.S.C. 2201 and 2202 (Declaratory Judgments), as well as 42 U.S.C. 1983, 1988 and 1920. 15. 16. Jurisdiction over the federal claims is under 28 U.S.C. 1331 and 1343. This court has authority to grant the requested injunctive relief under 28 U.S.C.

1343(3), the requested declaratory relief pursuant to 28 U.S.C. 2201 and 2202, Plaintiffs claim for damages under 42 U.S.C. 1983, and Plaintiffs prayer for costs, including reasonable attorneys fees, under 42 U.S.C. 1988 and 28 U.S.C. 1920. 17. Venue is proper in the Eastern District of North Carolina pursuant to 28 U.S.C.

1391, because the claims arise in this District and the Defendants are located in this District. // // //
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FACTUAL NARRATIVE 18. Crist Clinic for Women (the "Clinic") is a business located at 250 Memorial

Drive, Jacksonville, North Carolina. It provides chemical and surgical abortions during the first and second trimesters of pregnancy. 19. Plaintiffs are committed to the pro-life cause and believe they have a moral,

religious, and civic obligation to witness publicly against abortion to persons in their community who participate in it. Their witness includes holding vigil outside of the Crist Clinic in order to visibly offer prayers, fasting, appeal, public witness, and alternatives to those seeking abortions. 20. One of Plaintiffs' primary goals is to be visible to persons entering and leaving the

Clinic building so as to communicate directly and personally to them the prayers, appeal and assistance Plaintiffs are offering. 21. Jacksonville's public assembly permit scheme was enacted by Ordinance 03-37

and is codified at Article IV ("Parades and Public Assemblies"), Chapter 23 ("Streets and Sidewalks"), sections 23-58 through 23-74 of the Jacksonville Municipal Code. 22. In Jacksonville, a prior-issued permit is required for any planned assembly in a

public place involving more than two persons. Ordinance 23-58 ("Definitions") and 23-59 ("Permit Required"). The permit process regulates the speech of groups with as few as three participants and empowers the Chief of Police to grant or deny applications based on a twelvepoint list of discretionary criteria. Ordinance 23-63(a) ("Standards for Issuance"). 23. A decision by the Chief of Police may be appealed to the City Council within five

(5) days after receipt of the denial. Ordinance 23-67 ("Appeal Procedure"). 24. On or about February 7, 2011, Dr. Spano filed an application with the

Jacksonville Police Department, requesting a permit to hold public vigil on the public right of way at 250 Memorial Drive, the address of the Crist Clinic.
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25.

The right of way at 250 Memorial Drive runs along either side of the roadway and

consists of paved and unpaved sidewalk, as well as areas with no pedestrian walkway. 26. Dr. Spanos permit application was approved on February 14, 2011, without

limitation as to where participants could stand on the public rights of way. The only condition was that the group was not to block the sidewalk. 27. After the permit was approved, on or about April 6, 2011, Dr. Spano and his

fellow pro-life advocates began to hold vigil on the unpaved public right of way directly across the street from the Crist Clinic entrance, where they could be seen by persons entering and leaving the facility. 28. Almost immediately after the group first assembled on April 6, 2011, persons

from inside the Crist Clinic came out and took pictures of Dr. Spano and his group. Shortly thereafter, two Jacksonville police officers drove up and asked to see their permit. Upon inspecting it, the officers told them everything was in order and departed. 29. Soon thereafter, a different pair of officers arrived. One of them was Lt. Sean

Magill, who asked Dr. Spano and his group to move from their location on a public right of way in the vicinity of the Clinic's front entrance (across from the Clinic's lower parking lot) to a position at the back of the Clinic (across from its upper parking lot), around the curve of Memorial Drive. This placed the group directly in front of the Onslow Surgical Clinic (255 Memorial Drive)a business that does not perform abortions. At the new site, Plaintiffs could not be seen by persons entering or leaving the Crist Clinic building. 30. When Dr. Spano asked Lt. Magill to give a reason for the move, Lt. Magill

declined to give oneexcept to say that the move would be a favor to him. Rather than to risk citation or arrest, Plaintiffs complied with the request.

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31.

On or about April 20, 2011, Dr. Spano met with Lt. Magill to express his

concerns and show Lt. Magill a map of the area surrounding the Clinic, which indicated the public rights of way. He informed Lt. Magill that the Municipal Code's definition of "Sidewalk" recognizes both paved and unpaved public rights of way for demonstration purposes. Ordinance 23-58 ("Definitions"). Lt. Magill said he would discuss the matter with his supervisor. 32. On or about April 27, 2011, Dr. Spano received a letter from the office of Michael

Yaniero, the Jacksonville Chief of Police, revoking the previously issued permit and informing him that his group would not be allowed to re-assemble where they had originally assembled on April 6on a public right of way near the Clinic's front entrance, across from its lower parking lot entrance. The reason given was concerns related to public safety. 33. On or about April 29, 2011, Dr. Spano met with Lt. Magill to discuss the permit

revocation. Lt. Magill reaffirmed the contents of Chief Yaniero's letterthat Dr. Spano's group was prohibited from standing near the clinic entrancebut suggested an alternative site where Memorial Drive meets Western Blvd., or a place farther away on Highway 17. Neither location would allow the speakers to be seen or heard by patrons of the Clinic. 34. On May 2, 2011, Dr. Spano filed a timely appeal with the Chief of Police and the

City Clerk, challenging the Police Chief's revocation of the permit. 35. On May 3, 2011, the Jacksonville City Council heard Dr. Spanos appeal of the

permit revocation. Chief Yaniero explained that his decision to revoke the permit was because: (1) the City had a policy limiting picketing to paved sidewalks to avoid the headache of determining where public rights of way end and private property begins; and (2) the location desired by Plaintiffs was too dangerous, because vehicles driving around the curve on Memorial Drive might stray off the road and hit the demonstrators. At the end of the hearing the Council voted to affirm the Chief of Polices decision to revoke the permit.
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CAUSES OF ACTION
I.

VIOLATION OF THE U.S. CONSTITUTION, FIRST & FOURTEENTH AMENDMENTS, AND 42 U.S.C. 1983 ALLEGED AGAINST ALL DEFENDANTS 36. Plaintiffs incorporate the allegations of paragraphs 1 through 29, inclusive, as

though fully set forth herein. 37. The First Amendment of the U.S. Constitution states that Congress shall make

no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The protections afforded by the First Amendment are applicable to the states through the Fourteenth Amendment. 38. 39. Plaintiffs speech is political speech, lying at the core of the First Amendment. Defendants have infringed Plaintiffs First Amendment rights by enacting and

maintaining a time, place and manner ordinance that is constitutionally flawed: a. The permit scheme is overly broad and not narrowly tailored to serve legitimate government interests, such as protecting public safety, because it burdens a substantial amount of speech by requiring all small groupseven those with as few as three participantsto notify and obtain prior permission from the government in order to speak anywhere in the City when risks to legitimate government interests are minimal or non-existent. b. The ordinance fails to leave open ample alternatives for communication. A denied applicant may not lawfully engage in any alternative for planned communication in any public area of the City until after receiving government approval under the Alternatives Permit provision ( 23-66).

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c. The scheme allows too much discretion to officials because it lacks narrow, objective, and definite standards to guide their decisions. The ordinance i. Does not prohibit the City from picking and choosing among the applied for and alternative locations on grounds of the relative safety of one over the other; ii. Allows the City to deny a permit because of unreasonable safety risk, without defining the meaning of unreasonable, and without requiring the City to consider, in its evaluation of unreasonable risk, reasonable prophylactic measures that could effectively reduce or eliminate the risk; and iii. Does not prohibit the City from creating additional grounds for permit denialsuch as banning speech on unpaved sidewalks merely because it is administratively inconvenient to locate public rights of way on unpaved sidewalks. 40. Defendants infringed Plaintiffs First Amendment rights of free speech and

assembly, invidiously applying and enforcing the permit ordinance against them by: a. Requiring Plaintiffs small group to comply with the Ordinances notice and application process before it was allowed to assemble and speak; b. Revoking Plaintiffs' previously issued permit because of the administrative inconvenience involved in locating the public rights of way on an unpaved sidewalk; c. Revoking Plaintiff's previously issued permit and requiring them to accept an alternative permit which limited their assembly to a paved sidewalka reason disallowed by the ordinance itself, which mandates approval unless the
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assembly is "reasonably likely to cause injury to persons or property" ( 2363(a)(4) and defines "Sidewalk" to encompass both paved and unpaved walkways ( 23-58); d. Failing to consider simple prophylactic measures to address any actual public safety concerns; e. Denying Plaintiffs the right to assemble and speak in a location visible to the walk-in entrance of Crist Clinic, in order to suppress or dilute the expression of their viewpoint and message. 41. Defendants conduct is the proximate cause of the infringement of Plaintiffs

rights to free exercise of religion, speech, association, and assembly at the Crist Clinic. 42. 43. Each of Defendants described actions was taken under color of law. Defendants deterrence of Plaintiffs exercise of their First Amendment rights of

free religious exercise, speech, association, and assembly on the public right of way at the entrance to the Crist Clinic is ongoing and constitutes an irreparable harm to them. Plaintiffs have no adequate remedy at law for the violation of their federal constitutional rights.
II. VIOLATION OF THE NORTH CAROLINA CONSTITUTION, ARTICLE I,

SECTIONS 13 & 14 ALLEGED AGAINST ALL DEFENDANTS 44. Plaintiffs incorporate the allegations of paragraphs 1 through 37, inclusive, as

though fully set forth herein. 45. Article I, Section 14 of the North Carolina Constitution states, Freedom of

speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.

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46.

The Plaintiffs freedom of speech has been restrained by the overly broad "Parade

and Public Assembly" permit scheme enacted and maintained by the City of Jacksonville, and by Jacksonvilles invidious and unduly burdensome enforcement of it against Plaintiffs. 47. Defendants conduct is the proximate cause of the infringement of Plaintiffs

rights under the North Carolina Constitution at the Crist Clinic. 48. 49. Each of Defendants described actions was taken under color of law. Defendants deterrence of Plaintiffs exercise of their rights under the North

Carolina Constitution is ongoing and constitutes an irreparable harm to them. Plaintiffs have no adequate remedy at law for the violation of their state constitutional rights.

PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that judgment be entered in their favor and that relief be granted against Defendants as follows:
1.

For a temporary restraining order and a preliminary injunction enjoining

Defendants, their officers, agents, servants, employees, and all persons acting in concert or participation with them who receive actual notice of the injunction:
a.

from enforcing the Jacksonville Parade and Public Assembly Ordinance,

Ord. 03-37, codified at Article IV, sections 23-58 through 23-74, of the Jacksonville Municipal Code as it is currently written;
b.

from preventing or deterring Plaintiffs from peaceably demonstrating on

the public right of way at the front entrance to the Crist Clinic, at 250 Memorial Drive, Jacksonville, North Carolina.

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2.

For an order, if the Ordinance is upheld in a severed form, to re-issue the permit,

authorizing Plaintiffs to demonstrate on the public right of way across the street from the front entrance to the Clinic, at 250 Memorial Drive, Jacksonville, North Carolina;
3.

For a declaratory judgment finding that: a. Defendants enacted and continue to maintain an Ordinance that constitutes

an unconstitutional prior restraint that is not justified as a reasonable time, place and/or manner restriction; b. Defendants enacted and maintain an Ordinance that is facially

unconstitutional because it lacks a small-group exception; c. Defendants unconstitutionally enforced said Ordinance against Plaintiffs

peaceful speech activities on the public sidewalks outside the front entrance to the Crist Clinic, in violation of their constitutional rights as pled herein; and d. above.
4.

Plaintiffs are entitled to relief consistent with the injunction prayed for

For attorneys fees and costs of suit pursuant to 42 U.S.C. 1988, 28 U.S.C.

1920, and any other applicable law.


5.

For any and all further relief to which Plaintiffs may be entitled to recover as the

Court deems just and proper. Respectfully submitted, Thomas More Society By: /s/ Peter Breen Peter C. Breen Executive Director & Legal Counsel 29 S. LaSalle, Ste 440 Chicago, IL 60603 Direct: (312) 782-1680 Fax: (312) 782-1887 Deborah Dewart, Esq. By: /s/ Deborah Dewart Deborah Dewart N.C. #30602 620 E. Sabiston Drive Swansboro, NC 28584-9674 Direct: (910) 326-4554 Fax: (877) 326-4585 Email: debcpalaw@earthlink.net
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Special Appearance as per Local Rule 83.1e Email: pbreen@thomasmoresociety.org By: /s/ Thomas Olp Thomas G. Olp Counsel for Thomas More Society 2111 Comprehensive Drive Aurora, IL 60505 Direct: (630) 692-2402 Fax: (630) 851-5040 Special Appearance as per Local Rule 83.1e Email: tolp@conwin.com

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