good morning we have two cases this morning as the first is riley the city of harrisburg number sixteen dash thirty seven twenty two mr my hat is the correct and improperly shifted the burden of proof on merril tailoring onto the appellant the district court correctly found that the city had not sufficiently considering other less restrictive alternatives to the ordinance ensuite well in adopting the ordinance from planned parenthood which obviously around the country had considered narrow tara ok tailoring is in the first  that they did consider it by curiously if not reinventing the wheel themselves not in this case because in this particular case the district court found that it was unclear even after giving the  city every opportunity to develop the record in its favor in the preliminary injunction briefing after the briefing was complete through additional declarations all of the evidence that the city had on their with tailoring it provided to the district court and then the district court actually found in due order on pages thirty five and thirty six or thirty four and thirty five that it was still not clear what the city had done well by adopting the planned parenthood plan they obviously adopted everything th dances that were narrowly tailored and it adopting what planned parenthood has done they have adopted the consideration of narrow tailoring that planned parenthood has done actually respectfully i would disagree throughout the country  parenthood has drawn ordinances that have been rejected for example there are them have been rejected some of them have been accepted in the ones that have been rejected have been a learning lesson on what is acceptable right yes and that's what this particular ordinance is actually worse than many that have been rejected because this particular ordinance is much broader than the one in bruni for example in bruni we had a fifteen foot ordinance that only applied to clinic door ways here we have one that's not only larger at twenty feet but it actually applies to doorways and driveways so what this particular ordinance does is it completely forecloses v most significant channel of communication for the  leafletting cars as they're pulling in to drive what they can stop them is they're pulling in because they're in a traffic lane actual a safety the you have to let the corner get is the evidence is undisputed that the plant paying for the clinic in harrisburg you will see this on page one fifty two of the appendix there is a parking lane right adjacent to the sidewalk cars are able to stop in the driveway to receive a leaflet or a since the first car drove through the streets of the city of harrisburg there's been one accident at hillcrest not the city already has ordinances that prohibit the blocking off traffic if this had been a problem if the city had shown a record of violation after violation needing some kind of a solution the city has at its disposal an ordinance that prohibits blocking traffic it did not need to pass this  case we have not the district court the below stayed the litigation pending the outcome of this appeal of the preliminary injunction include including discovery court but the parties did a fair amount of discovery as part of the preliminary injunction  proceedings this is not a case where the city was caught by surprise or where the city did not have an opportunity to fully develop the record in its favor on the question of narrow tailoring the city sought leave to provide declarations and it did so and even after receiving all of the evidence that the city had on the issue of narrow tailoring the lower court said it is not clear what they considered and whether they considered it seriously enough as this court road judge towards a new road in the in the right well here's the i'm a little curious why the lower court would stay and why you would go ahead and be happy with the stay and be pressing for  instead of trying to get a full record and get a trial it's because what's the thinking there because in this particular case the lower court actually found that the city had not carried its garden of proof on narrow tailoring as a content that we're apparently content to have to stay in place and be famous on a primary injunction record instead of saying to the court below listen we're we're going to pick it up but we want the case proceeding to a trial in a hurry because on the issue of narrow tailoring judge there is no other evidence to be had everything that the city has the city has put forth and the record is asked complete now on that issue as it will be after any discovery or trial where it isn't isn't part of the argument also that you're saying that on the success on the merits pro the court applied the wrong burden for us particular case and the court should have gotten to at the very least irreparable harm and it didn't correct and so what is the irreparable harm here that irreparable harm here is the denial of a cherished first amendment right the right to free to to speak freely what this ordinance does is it come please cut off the sidewalk and the driveway to be splayed is their declaration say that they have been completely shut down they are unable to to to peacefully have the one on one quiet conversation that they could have but for this particular ordinance l y v burns says that every day that passes that that continues to be the case is an irreparable nice side just a case where there was a finding by the district court of the likelihood of success on the merits where despite that you have no likelihood of success on the merits that it has anyone ever edition a junction where there was there was no likelihood of success on the merits usually a balancing factor but that is a very important i mean where you would have that factor considering the four elements to consider before granting an injunction if there is no likelihood of success on the merits has any court ever needed to go further than that i'm not sure your honor i think the likelihood of success the merits factor is very important in the analysis we would contend that that finding was wrong and we would contend that once once that finding is looked at and remedy all of the other ones fall into place because it is an irreparable injury enforce an unconstitutional statute now the ashcroft decision on page six hundred sixty six says that once the government does not carry its burden of proof on narrow tailoring at the preliminary injunction stage the party challenging the statute and seeking a preliminary injunction quote must be deemed likely to prevail and quote that's from the supreme court so here once the district court found correctly improperly that the because of the real altering of the burden in ashcroft to gonzales there's a reasonable chance of success on the merits yes and you've talked to us about the rubber ball harm what about the harm to the other side there is no to coordinate the access to health care and stop sidewalks from being impeded and traffic from flowing from smoothly all worthwhile interests all of which can be met with the existing ordinances that the see what they're doing saying is that the city can meet those interests with existing ordinances or if it chooses to have additional legislation the city can legislate more narrowly for example if banging on a window or peering through a window is a problem as  the pleadings the city can pass an ordinance that bans bit banging on windows and peering through windows at health care facilities the opponents have no interest in doing that all they want this to be able to carry on these quiet one on one conversations that they were able to do before but which they are unable to do now there is no record in the city's police reports for example which are attached to the christmas declaration in the appendix you see report after report from the police saying we showed up we responded to a call no problem at this time no violations no crime no reason to interfere one after another you would think that if there was in fact a problem as planned parenthood the party that drafted the ordinance contends the city would be able to  why not ask for an expedited hearing on the merits because what you're you're playing a long game here in that a piano is just a short game what we believe that the appeal on the p r i can  dispositive of the entire case because the that case law is so clear now after bruni and mcallen that this case can and should be the side and on the record that's already been developed there is no need for additional factual that should be employed for in life this kind of word says right well what's changed since brown that makes that part of brown other things of change sort of overtaken brown by what's happened to make that part of brown in a portable or what you said in for the court judge jordan is that the issue of over breath is also quite relevant to the issue of narrower pillaring because the broader the statute sweeps the more effort the city has to show that it is narrowly tailored to the statu and so since brown we have had mcallen and ruini both of which come in and say that the issue of marital uring is now paramount in the center of the city cannot simply say that it other alternatives would not work as the city has done here the district says the city merely says that's no longer sufficient now what the city has to do is come forth with actual evidence of seriously considering if not actually trying other alternatives there is a  other alternatives here that the city could have tried but that it's undisputable the city did not try that's what makes this case problematic and that's what makes this case different from brown is there a way to one might be able to distinguish gonzales a nationalist made in those cases you have content based ordinances or regulations did you not you did and actually that's the argument that the city makes here that ashcroft only ashcroft applies across the board any time you have a restriction on speech the government bears the burden of proof at trial which means the government bears the burden of proof to show that the ordinance is constitutional at the important to recognize the trial court was applying the preliminary injunction burden as this court has laid out the plaintiff cites two supreme court cases for burden shifting they cited neither of those cases below when i look at those cases restrict scrutiny cases in this compelling interest and requires that strict scrutiny standard like ashcroft this court in child evangelism this court has repeatedly and first in many cases put the burden on the plaintiffs and this is and the trial court did the same the plaintiffs on appeal in this case not and selection while you would have that burden on the government to be the person or to be the side that has to demonstrate the preponderance of the evidence in a content based scenario we don't have that scenario here well that's the whole question right that's the whole question of whether you've got a content based restriction now in bruni the discussion was about picketing and demonstrating and based on read there was a determination that  pretty clear and say read changed to the ground under brown right here already and it's obviously going to be difficult for me to quibble over your words because you were with the bernie decision the way i read bernie was that th morning knowledge that pittsburgh had an argument however that the plaintiffs in that case had an argument that we changed the standard this court did not hold that we changed the standard so let's assume that you're right ok they've got an argument doesn't that mean that there's a likelihood that these people should have a chance to go forward and make their case that that's something that that judge rambo should be paying attention to in deciding well there was a likelihood of success this i believe judge rambo did it the judge granted denied a motion to dismiss which we put forward that's the critical difference between this case and ronnie greene was the appeal of a grant of a motion to dismiss by pittsburgh this is the appeal of the other any legal precedents to show that the burden was on us at the p r i stage and not on them we would have requested a full trial if they were going to say if they are beautiful well inside or they seemed all judicial decision from this court of the supreme felt we'd sort of come to some kind of consensus here that the the burden may be on the on the move it to show a likelihood of success but that in making that judgment the court that this report hast to take into account the pure trial standard it is a preliminary determination yet precisely and that's that very fact that it's a preliminary determination is what it means is why when we say likelihood of success we don't mean more probabl are some credible shot that these people have that we should allow them to to have a further opportunity to develop their record and and and to make their case and that that should be then assessed along with the other elements that that's when you you don't just cut the thing off the likelihood of success saying you didn't show more probable than not you make the kind of assessment we've just been talking about and then you look at irreparable harm you look at the other factors that's a balancing test it's supposed to happen at the p r i stage right yes you are but it didn't happen here did well i believe the likelihood of success is not just a factor it's a prerequisite yeah it's you know it 's a river it doesn't have to be greater than fifty percent of the words is there a reasonable likely to success you you pick the percentage thirty percent forty percent i don't know but it's not fifty one and once you have something that there is a reasonable likelihood of success you go to whether there is a reparable harm now remember one hundred one have to show that the p i stages greater than fifty percent but the court didn't even get there and that seems to fly in the face at least by analogy too but we decided that in a rebel which dealt i realize with a stay pending appeal but the concepts are the same here in the first amendment context you are my first argument on that is that those cases involve a compelling interest standard to strict scrutiny standard which at trial would put the burden on the other party my secondary argument on that apply to somebody to panhandling somebody asking sitting on the curb and asking for money the language is thank you congregate patrol picket we're doing street ok so panhandling is a picketing or demonstrating or congregate right now it is probably no controlling right so a person could a person could could panhandle we could ask for money how about how much just a person soliciting business owes it were an accountant or heaven forbid a lawyer with leaflets saying come use my services would that be covered by you were his within fifteen b that it could potentially be services but they can't hand out a leaflet that says you shouldn't be getting an abortion how is that not content based your honor i believe that this quarter if you applied the president in mcallen and hill which is isn't this exactly the same how is this a different the person who's speaking in one instance is an anti abortion advocate the person who speaks you know there is this might be a homeless person asking for money or a business person soliciting and i'm asking this are i thought of mr rooney takes reid and understands it as affecting what went before as as undermining brown which did apply here specifically so would call and the supreme court looked at a similar question and this supreme court said its content neutral and read the court looked at a different question and it works at its content base we believe that the re decision was correct we believe mcallen and the were correct they can live in the same world and i don't and they can because why because one had to do with signs and the other had to do with abortion no your honor because the read decision looked at something that said a different categories it would be like in the kerry decision when this cream court looked at something that said you can pick it unless it's about labor issues and or i believe it was the opposite you can't pick it up unless it's about labor issues and so reid was just applying the same present at the supreme court has used over that time when he said you can demonstrate on certain issues and not on others that's obviously content base in the colonies bill this would be these obviously content base but reed said you can't have signs that say that you can't classify signs as political signs and then real estate signs and then directional signs and have different things so if you can't categorize signs that way how can you categorize speech as picketing were demonstrating  panhandling or soliciting for business and not entry into the same realm the reed says is forbid not because when you look at a bill that talked about saying that demonstrating and collar gating or simple terms that you can understand that's not word dealt with a completely different question the court said it with him is a completely different might be a bit of an overstatement but i take your point i got i understand your honor and if you come to the conclusion that this is content based then you are content neutral then you go to the next then you look at the next question is it nearly tailored to those interests are there have alternatives you know what were the least less restrictive beings considered by the city here you know one of the city had trespassing ordinances that were not being effective they had an ordinance  that's how i read that portion of the situation and the city did put forth evidence that this work and look at that it did consider the options that it already had and specifically also considered potentially doing face lawsuits under the sea injunctions it and get specific city ultimately object considering those alternatives were preventive solution a solution that would require keeping a police officer there monitoring the situation and would protect the situation in it but also it was not basically to the pits were born that's the only thing that they changed really was the driveway addition because of the incident at they feel pressed where you had a traffic accident where someone stopped a car on the thirty five mile an hour street as plain as a point out of planned parenthood plank you actually have street parking on front street outside the hillcrest clinic you don't have that you just have purely the lane of traffic goes right into the essentially the driveway and if you're leave living there and you're stopping traffic hand you know whatever you're handing whatever materials you're handed to drivers as a company n and that causes a traffic hazard on that street then the city has presented evidence that people typically drive faster than thirty five there  which is not entirely unexpected and so that is a problem there and so that was the thing that the city considered in addition to the pit we're in it's get added that driveway restriction because of the problem at hillcrest  if we would actually present testimony at all of the incidents of the clinic of the problems of the police issues with having to deal with those being called out in the clinics was it was very difficult for the city at the time the city at one point was down not only fo and you argue that is going to neutral with the same be true of a buffer zone was created around the house o i think in that scenario already it would run the risk of being a foul to the really situation with your only limiting speech around religious facilities you could be potentially try limit religious speech and so i think that that scenario that would be like only doing it around labor facilities for example you could run the risk of being a file to carry in that scenario by doing it in certain areas to specifically limit certain types of speakers or without being justified by the interest that and the supreme court has held that it is a content neutral interest to the the quickest route to where you wanted to get was and just to say let's combine pulmonary injunction hearing with the trial or if we're going to have p r i at least get an expedited trial was there any effort to do that additional new piece of evidence that they could present now and it makes sense whether or not the ordinance was narrowly tailored is not something that is within the knowledge of the appellant or they have to depose my clients to find out what the city did or did not consider all of that evidence is in the possession of the city the city knew what it had done prior to passing the ordinance the city had every opportunity to present that to the court and yet the city failed to convince the district court that it had done what it needed to do in this  not that point realize that in the burden of proof now correctly or incorrectly according to what the court was telling the parties the city did not know at that point that it was going to have the burden of proof your honor in our reply brief we addressed the issue of waiver we did go before the judge and the city saying were you with the judge the burden of proof that the judge was hearing them they thought they did not have the burden of proof now you're saying the city should have known that and otherwise and he had a wor did the court then we would ask the store to reverse that now the city continues to try to distinguish ashcroft and so i feel compelled to point out the the court that follows what judge jordan read in gonzales the supreme court says the government tends to limit the rule announced in ashcroft to content based restrictions on speech but that distinction is unavailing that argument has been rejected ashcroft cannot be limited in that fashion for that we can submit it as a supplement or you can take traditional most of it through that three forty one disturbing the peace it prohibits the blocking of traffic it prohibits confrontations hostile words aggression the city have this at his disposal now the city says it's not enough ok where is the record of arrests all the citations even issues of of any prosecution there is not the city has never arrested anybody under this no if the city has come in with a record to show ok every week we have to arrest ten pro lifers for violating the sword and so we can't do this anymore we're being depleted financially we've got to do something else that would be a very different city comes and merely says that this would not work without any records to back that up that's what this court in bruni says it's not enough that's what the supreme court's that in mcallen it's not enough for the city to merely say something wouldn't work be asked to prove it and here if if it were a not if they had the evidence they would have submitted it but i really hope you'll take the time to read the jonathan chrisman the coloration in the appendix because it attaches the police reports and it really is remarkable one police report actually finds that something was taken place there everyone of them says no crime nor violation they are doing what the what they have a right to do the supreme court says this is protected speech this is the classic case the solution in search of a problem now both with respect to the over breath here in the shank the supreme court said finn steen feet is too far away in order for a quiet conversational would be that the court applied the wrong burden therefore it isn't an open and shut case for the other side with regard to success on the merits and the court didn't deal at all with a reprimand injury and therefore it should be well it has to be a presumption doesn't it and i think it was a look at the case where said presumption i think it's not remarkable that if a party bears the burden of proof of something and they fail to meet it that's what we're talking about right i mean you want to say they didn't carry that burden yet they had chance so they should lose we should get a p r and the question is being put to you is if there was error in the court below and they were under the misimpression of what they had to show because this record was under the misimpression of what they had to show and they say they have evidence to put in should they not have the opportunity to do that that's the that's the argument that's been made in the question i think it's been put to you right now and i understand you're saying no not given a second bite but  because you say they had they gave everything that they've they made their full record there's nothing they could have correct but we have the representative of the cities right there saying that's just not so we've got more we could show but he was not able to identify anything and it doesn't make any censure on it because what what what they have is there is not in the possession of my clients finally quickly if you would allow me to give you give you thirty more seconds thank you on the question of content that neutrality read is very clear when you regulate speech attempts to to show that this ordinance is content neutral by saying that it actually bans equally fringe viewpoints such as opposition to vaccines or or plastic surgery and that and that was well stated in your brief that that