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1st Circuit: Puerto Rico's Controlled Access Law As Applied Unreasonably Burdens Jehovah's Witnesses

By Howard M. Friedman

In Watchtower Bible and Tract Society of New York, Inc. v. Segardia de Jesus, (1st Cir., Feb. 7, 2011), the U.S. 1st Circuit Court of Appeals dismissed a facial challenge brought by the Jehovah's Witnesses to Puerto Rico's Controlled Access Law, but vacated the trial court's order denying injunctive and declaratory relief on an "as applied" challenge to the law. (See prior posting.)  The challenged statute -- a crime control measure-- authorizes municipalities to grant permits to neighborhood homeowners' associations (urbanizations) so they can control vehicular and pedestrian access to the neighborhood.  The Jehovah's Witnesses say this has prevented them from entering neighborhoods to engage in religious proselytizing. The Court of Appeals said:

Nothing in the statute endorses the principal inhibitions of which appellants complain. The statute says nothing of unmanned locked gates or buzzers controlled solely by residents, nor does it empower guards to deny access unless a resident approves....  [T]he regime as administered does bear unreasonably on Jehovah's Witnesses' access to public streets....

 [T]he case before us is novel and difficult. But Puerto Rico's crime problems are unusually serious and its legislature's solution, albeit an experiment, was democratically adopted and is far from irrational. A court's task is to assure breathing room for legitimate communicative activity. Although we reject the facial challenge to the statute, the precedents on access to public places require fine tuning of the statute's local administration and, for that, further proceedings are required.

On remand the district court needs to take prompt action to bring the municipalities and urbanizations into compliance with this decision. In the case of urbanizations that already provide regularly manned guard gates, they must provide entry to Jehovah's Witnesses who disclose their purpose and identity .... 

Where an urbanization currently provides access only through a locked gate or a buzzer operated solely by residents, adjustment may take longer. Those prepared to provide guards during daylight hours need a brief period to hire and to train them. And any urbanization that seeks to justify more limited access arrangements ... or an exemption because of small size needs a chance to propose and defend such a request.

[Thanks to Alliance Alert for the lead.]

Full post as published by Religion Clause on February 09, 2011 (boomark / email).