April 2023 - Parks & Recreation - 32

LAW REVIEW
are liable under federal civil
rights law, Section 1983 (42 USC
§ 1983) for violating an individual's
constitutional rights. As described
by the court: " Qualified
immunity protects all but the
plainly incompetent or those who
knowingly violate the law. " Further,
in determining whether a
police officer is entitled to qualified
immunity, the federal district
court would conduct the following
two-step inquiry:
(1) [W]hether taken in the light
most favorable to the party asserting
the injury, the facts alleged
show the officer's conduct violated
a constitutional right and (2)
whether the right was clearly established,
such that it would have
been clear to a reasonable officer
that his conduct was unlawful in
the situation he confronted.
According to the court, a " clearly
established " right at the time of
the alleged constitutional violation
would have to be " sufficiently clear
that a reasonable official would understand
that what he is doing violated
that right. "
In this case, Grant had alleged
" bans on solicitation are unconstitutional
as applied to religious
groups. " The federal district court
rejected this argument. According
to the court,
it was " unequivocal
that the state is free to regulate the
time and manner of solicitation
generally, in the interest of public
safety, peace, comfort or convenience. "
With regard to religious
groups, the court noted it would
only be " unconstitutional to assess
someone's religious
practices in
determining whether a party had a
right to solicit. "
In this particular instance, the
court found the police officers had
32 Parks & Recreation | APRIL 2 0 2 3
appropriately exercised their discretion
in removing Grant from
the area where he was standing
and giving him a citation. In the
opinion of the court, these actions
were warranted " to avoid
any possible confrontations with
the many individuals enjoying the
Christmas Village. "
Further, the federal district
court found the undisputed circumstantial
evidence in this case
indicated Grant was " soliciting
donations during his presence
at Love Park. " Moreover, given
Grant's
" extensive
experience
with making similar appearances
in prior years in Love Park and
other locations, " the court found
Grant had " reason to know that
soliciting within eight feet of a
vendor was a violation of a City
of Philadelphia ordinance. " Further,
Grant had reason to know
this violation " authorized the police
to take action removing Plaintiff,
forcibly " because Grant " had
refused to leave Love Park voluntarily
to the perimeter where the
police gave him a citation. "
In so doing, the court acknowledged:
" Handcuffing an individual
is not necessarily arresting
someone and it is certainly not
charging anyone with a crime. "
In this particular instance, the federal
district court determined the
police had acted lawfully by handcuffing
Grant.
Further, the court found the police
had used " minimal force " to
remove Grant after his refusal to
leave, noting Grant's " loss of liberty
was minimal, " and he had not
been " charged with a crime. "
While
acknowledging Grant's
" liberty was constrained for a period
of time by the police, " the court
| PARK S ANDRECRE AT ION . OR G
determined this sole fact did not
" entitle the Plaintiff to damages,
nor does it deprive the police of
qualified immunity. " As a result,
the federal district court held " the
police officers were entitled
to
qualified immunity " and summary
judgment should be granted in
their favor.
Section 1983 Municipal
Liability
In his lawsuit, Grant also had
claimed the City of Philadelphia
should be held liable for damages
under Section 1983, a federal civil
rights statute (42 U.S.C. § 1983).
As described by the federal district
court, under Section 1983,
" the municipality can only be
liable when the alleged constitutional
transgression implements
or executes a policy, regulation,
or decision officially adopted by
the governing body or informally
adopted by custom. " Further, to
establish municipal liability under
Section 1983, the court noted
a plaintiff like Grant would have
to " show that they were deprived
of rights, privileges, or immunities
secured by the Constitution
and laws, and that the deprivation
of those rights was the result of
an official government policy or
custom. "
In this case, Grant contended
the City of Philadelphia had indeed
" developed a custom of its
police and employees violating
the rights of those expressing
ideas or leafletting in public forum
areas. " In particular, Grant
alleged
Philadelphia
police
officers
would tell individuals engaged
in such activities that " they
could not do so or not to return
to do so and/or they could not do
April 2023 - Parks & Recreation

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