United States District Court, District of Massachusetts
VETERANS FOR PEACE, CHAPTER 9, SMEDLEY BUTLER BRIGADE, through its Member and Representative, PATRICK SCANLON, Plaintiffs,
THE CITY OF BOSTON and GINA FIANDACA, Defendants.
ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Leo T. Sorokin, United States District Judge.
Every year since at least the 1940s, if not earlier, the streets of South Boston have hosted a St. Patrick's Day parade typically beginning at 1:00 P.M. on the Sunday closest to March 17th. Disputes relating to the parade have resulted in substantial litigation. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995); S. Boston Allied War Veterans Council v. City of Boston, 297 F.Supp.2d 388 (D. Mass. 2003). The Allied War Veterans Council (AWV) organizes the annual St. Patrick's Day parade. The event draws hundreds of thousands of people to the streets of South Boston to observe. The AWV exercises its First Amendment right to exclude from its parade messages it does not wish to sponsor or advance. See Hurley, 515 U.S. at 574 ("the [AWV] clearly decided to exclude a message it did not like from the communication it chose to make").
For many years, the Boys and Girls Club of South Boston have sponsored a 3.1 mile road race on the morning of the day of the parade. The race has commenced at 11:00 A.M. every year for the past several years.
The Veterans for Peace, a not-for-profit organization, has sponsored its own St. Patrick's Day parade on the streets of South Boston. AWV has, or would, exclude at least some of the VFP participants from the AWV parade under AWV's guidelines as identified in Plaintiff's affidavit. See Docket #7 at 1-2. Like the AWV sponsored parade, the VFP parade follows the traditional route down West and East Broadway Streets, returning along East 4th and East 5th Streets, winding around Thomas Park, and concluding on Dorchester Avenue. See Docket #7-5 at 2 (map depicting the routes of both parades). In 2003 Boston Police allowed the VFP to commence its parade immediately following the last marchers in the AWV parade. See S. Boston Allied War Veterans Council, 297 F.Supp.2d at 389. AWV sued the City and prevailed on its claim that permitting the VFP marchers to follow immediately the AWV parade unconstitutionally associated AWV's parade with the VFP parade. Judge Collings found "as a fact that the manner in which the defendants allowed the Protest Group to march, i.e., directly after the last group which was an actual participant in the parade, had the effect of creating the perception among those watching the parade that the Protest Group was, indeed, a part of the Council's parade." Id. at 394. The Court, however, rejected AWV's claim that the Court must prohibit VFP from marching until the crowd observing AWV's parade had "dispersed." Id. at 1. As a remedy, the court enjoined the City "from allowing (by permit or otherwise) future groups who wish to march at the end of the Parade to do so less than one mile behind the . . . end of the AWV's Parade." Id. at 399.
Every year since 2011, the VFP parade has commenced at approximately 3:30 or 4:00 P.M., i.e. when the last marchers in the AWV parade are at least one mile from the starting point of VFP's parade. Each year, Boston Police close the AWV parade route to motor vehicles at 12:30 P.M. They maintain these street closings continuously until the conclusion of the VFP parade. The City reports that approximately eighty percent of the spectators leave the parade route before the VFP parade. The photographs submitted by VFP depicting the parade in a prior year are consistent with the City's estimate.
For 2015, VFP, as it has in prior years, sought a permit for a 12 noon start time. VFP filed its permit request under the City's regulations, on March 25, 2014, nearly one full year prior to the event. Not until months later did the AWV or the Boys and Girls club file their permit applications.
The relevant regulations of the City permit the City to consider only reasonable time, place and manner factors in evaluating a permit application:
The Commissioner of Transportation shall issue such permit in all cases except where the time, place, and manner are not in conformity with the Rules set forth below, or where the permit would conflict as to time or place with a permit previously issued.
Docket #14-3 at 2 (Traffic Rules and Regulations Article VIII).
The City's regulations also anticipate the possibility that it may need to modify a permit request and, in those circumstances, lay out a procedure for consultation and communication as follows:
1. The Transportation Commissioner, in consultation with the Police Commissioner, may modify the requested route or time of a parade based upon the following conditions:
a. When the size of the parade, based upon the expected number of participants and spectators, cannot be safely accommodated on the proposed route because of the capacity of the roadway. The capacity of the roadway shall be determined by taking into consideration the width of the road and the adjacent sidewalk as well as the proximity of structures such as buildings or fences located at the back of the sidewalk.
b. When the route or time conflicts with another parade or other public event to such an extent that the public order or safety is threatened. The determination shall be based upon the inability of the roadway to safely accommodate the expected number of participants and spectators; or the inability to develop safe traffic detours because of the street configuration and traffic congestion in the area.
Any modification of the route or the time shall be narrowly tailored to address the conditions and shall be done in consultation with the permit applicant unless the applicant is unavailable or ...