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) CaseNo.4:11-cv-00187-BO
) District Judge Terrence W. Boyle
A. WHEREAS, on November 2, 2011, plaintiffs filed a complaint and motion for
TRO/preliminary injunction alleging violations of the 1
and 14th Amendments of the U.S.
Constitution, 42 U.S.C. 1983, and Article I, 13 and 14 of the North Carolina Constitution in
the denial by defendants of issuance of a permit to assemble, demonstrate and/or picket
(hereinafter "assemble") at and around the Crist Clinic in Jacksonville, N.C.;
B. WHEREAS, the Court set a hearing on plaintiffs' motion for a preliminary
injunction on November 21,2011, at which time the parties presented to the Court an agreed
Preliminary Injunction Order;
C. WHEREAS, the Court entered a Preliminary Injunction Order in this case on
November 23,2011, directing the parties "to report on the status of their effort to develop a
Consent Order under which the City would undertake to revise the Ordinance with the Court's
supervision" ;
D. WHEREAS, this Consent Order reflects the parties' efforts to comply with the
Court's Preliminary Injunction Order;
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E. WHEREAS, the parties mutually recognize the interests that motivate their
actions in this matter: to wit, plaintiffs' interest in protecting and exercising their First
Amendment rights to free speech and assembly and the defendants' obligations and
responsibilities to promote public safety and order;
F. WHEREAS, the parties mutually seek to avoid the expense, risk, uncertainty and
delay that litigation of this matter to trial and judgment would entail; and
G. WHEREAS, while the parties maintain the merits of their respective legal
positions, this Consent Order respectfully proposes to the Court a compromise of their disputed
claims that does not represent, and should not be construed to be, an admission of liability on the
part of any party.
THEREFORE, by consent of the parties, it is hereby ORDERED and DECREED that:
1. This Court has jurisdiction of this action under 42 U. S. C. 133 1 and 1342, and
pendent jurisdiction over the state constitutional claims.
2. Venue is proper under 28 U.S.C. 1391.
3. Defendants will not dispute the validity ofthis Consent Order.
4. Defendants shall amend and re-enact the City of Jacksonville (hereinafter "City")
Parade and Public Assembly Ordinance (hereinafter "Ordinance") to address the items raised by
the lawsuit, namely, the lack of a so-called "small group exception," definition of "public
assembly," and discretion in issuance standards, as follows:
a. Defendants will amend Sec. 23-58 ("Definitions") to define "Public
assembly" to mean "any meeting, demonstration, picket line, rally or gathering of twelve (12) or
more persons for a cornmon purpose as a result of prior planning that occupies any sidewalk or
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public way normally used or reserved for pedestrian movement, and not used primarily for
vehicular parking or moving traffic."
b. Defendants will amend Sec. 23-60 ("Exceptions") subsection (4) to
provide that the ordinance shall not apply to "Spontaneous events occasioned by news or affairs
coming into public knowledge within three (3) days of such public assembly, provided that it
was not contemplated by any of its participants before the occurrence ofthe underlying news or
public affairs development that served as the impetus for the assembly."
c. Defendants will amend Sec. 23-61 ("Application") to provide, in
subsection (b), that the minimum time for filing an application for a permit shall be five (5) days
rather than ten (10) days. In subsection (c), the minimum time for filing an application for a
permit shall be changed from sixty (60) to thirty (30) days. In subsection (d), item (5) will be
modified by adding a comma after the word "which"; item (9) will be modified by striking the
words "units of"; item (10) will be modified to read, "The intervals of space to be maintained
between any animals, vehicles or motorized units participating in a parade;"; and item (11) will
be modified to change "his" to "hislher".
d. Defendants will amend Sec. 23-62 ("Police protection") to read, in the
second to the last sentence in subsection (a): "If additional police protection for a parade or
public assembly is deemed necessary by the chief of police, (s)he shall so inform the applicant
for the permit."
e. Defendants will amend Sec. 23-63 ("Standards for issuance") to read as
Sec. 23-63 - Conditions and Standards for Issuance
(a) Conditions
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The chief of police shall issue a permit upon submission of the completed application, unless
(s)he finds one or more of the following conditions present:
(1) The City cannot provide for the safe and orderly movement of the parade or public
assembly, and of other pedestrian or vehicular traffic contiguous to its route or
(2) The City cannot provide for conduct of the parade or public assembly without
requiring the diversion of so great a number of city police officers to police properly
the line of movement and the areas contiguous thereto, thereby preventing normal
police protection of the city;
(3) The applicant for the parade or public assembly permit has not agreed to abide by the
standards set forth in this ordinance.
(b) Standards
Additionally, the following standards are applicable to the chief of police's decision to issue a
parade or public assembly permit:
(1) The parade or public assembly is not for the primary purpose of advertising any
product, goods or event that is primarily for private profit, and the parade or public
assembly itself is not primarily for profit. The prohibition against advertising any
product, goods or event shall not apply to signs identifying organizations or sponsors
furnishing or sponsoring exhibits or structures used in the parade or public assembly;
(2) No parade or public assembly permit application for the same time and location is
already granted or has been received and will be granted;
(3) The police resources required for another parade or public assembly, as set forth in
subsection (2) of this section, are not so great that in combination with the subsequent
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proposed application, the resulting deployment of police services would have an
immediate and adverse effect upon the welfare and safety of persons and property;
(4) Adequate sanitation and other required health facilities are or will be made available
in, or adjacent to, any parade or public assembly areas;
(5) There are sufficient parking places near the site of the parade or public assembly to
accommodate the number of vehicles reasonably expected; and
(6) A parade 0) is scheduled to move from its point of origin to its point of termination
expeditiously and without unreasonable delays en route; and (ii) will not unduly
interfere with proper fire and police protection of, or ambulance service to,
contiguous areas due to its concentration of persons, animals and/or vehicles.
f. Defendants will amend Sec. 23-65 (''Notice of denial of application") as
follows: The section heading will be changed to read to "Notice of action on application" and
the last sentence of the section will be modified to read, "If the chief of police disapproves the
application, (s)he shall notifY the applicant either by personal delivery or certified mail at least
forty-eight (48) hours prior to the event of the action and state the reasons for a denial."
g. Defendants will amend Sec. 23-70 ("Prohibitions") as follows: renumber
existing subsection (7) to subsection (8), and insert a new subsection (7) to read: "It shall be
unlawful for any person to erect or place any structure, whether permanent or temporary, on a
city street, sidewalk, or right-of-way unless advance approval for the erection or placement of the
structure is obtained from the city councilor city manager. Signage that is otherwise compliant
with subsection (5) of this section is not considered a "structure" which would require any
additional approvals."
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5. In keeping with the revised definition of "public assembly" noted in paragraph
4(a), herein, the Defendants acknowledge and agree that in the areas proximate to the Crist
Clinic for Women at 250 Memorial Drive in Jacksonville, public assemblies that gather pursuant
to the Parade and Public Assembly Ordinance, or under its "small group exception," are allowed
to be present in or on all of the sidewalks and public ways normally used or reserved for
pedestrian movement, and not used primarily for vehicular parking or moving traffic.
Defendants acknowledge and agree that some of the "public ways" proximate to the Clinic are
unpaved, on either side of Memorial Drive, and that public assemblies proximate to the Clinic
are allowed to access these sidewalks and "public ways" subject to application of the modified
Ordinance as recited herein and any other traffic and safety regulations that would be equally
applicable to any other permitted demonstrations in the City's jurisdiction.
6. Within ten (10) days of entry of this Consent Order defendants will pay $20,000
in attorneys' fees to plaintiffs in recognition of work performed in connection with the lawsuit
and entry of this Consent Order. The parties agree that no further attorneys' fees or cost
reimbursements shall be sought by plaintiffs if the Preliminary Injunction Order is discharged
and the lawsuit dismissed, as provided, below, in paragraph 7.
7. After the expiration of thirty (30) days following the date of formal enactment of
the revised Ordinance as agreed in this Consent Order, the Preliminary Injunction Order shall be
discharged and the captioned lawsuit shall be dismissed without prejudice, with the Court to
retain jurisdiction to enforce this Consent Order. Until that time, the Preliminary Injunction
Order shall remain in effect.
8. This instrument reflects the entire agreement between the parties.
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So ordered this!t day of March, 2012.

United States District Judge
Agreed and Consented to:
For Plaintiffs:
Thomas More Society Deborah Dewart, Esq.
By: /s/ Peter C. Breen By: /s/ Deborah Dewart
Peter C. Breen Deborah Dewart N.C. #30602
Executive Director & Legal Counsel 620 E. Sabiston Drive
29 S. LaSalle, Ste 440 Swansboro, NC 28584-9674
Chicago, IL 60603 Direct: (910) 326-4554
Direct: (312) 782-1680 Fax: (877) 326-4585
Fax: (312) 782-1887 Email:
Special Appearance for Plaintiffs (LR83.1e) Attorney for Plaintiffs
Email: pbreen@)
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 for Plaintiffs (LR83.1e)
For Defendants:
Smith Moore Leatherwood LLP
By: /s/ Bradley M. Risinger
Smith Moore Leatherwood LLP
434 Fayetteville Street, Ste 2800
Raleigh, NC 27601
Direct: (919) 755-8848
Fax: (919) 838-3144
Attorneys for Defendants
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