First Circuit remands Jehovah Witnesses challenge to Puerto Rico “Controlled Access Law”


BOUDIN, Circuit Judge. To abate crime, Puerto Rico adopted a Controlled Access Law, P.R. Laws Ann. tit. 23, §§ 64-64h (2008), allowing local entities (called “urbanizations”), organized by the community but approved by the municipality, to control street access to areas within towns that have voted in favor of such plans. Appellants are two corporations operated by the Governing Body of Jehovah’s Witnesses that challenged in federal district court both the statute and its application. Apart from default or consent judgments against some of the defendants, the district court denied relief. The background is as follows.

Jehovah’s Witnesses accept a religious duty to share the Bible’s message publicly and to proselytize from house to house. Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 160-61 (2002) (discussing Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943)). They engage in door-to-door ministry, communicate about the Bible with people on public streets, and offer religious literature to anyone interested in reading it. They say that their activities in Puerto Rico have been constrained by urbanizations acting pursuant to the Controlled Access Law that is the subject of this appeal.

The Controlled Access Law–adopted in 1987 and amended in 1988, 1992, 1997, and 1998–was prompted by and adopted against a background of endemic violent crime. Puerto Rico, with a median household income only about one-third of the U.S. national average and less than half of every other state, has a homicide rate quadruple the U.S. national rate and more than double that of virtually every state. It is a major drug transit point, and drug dealing has led in a number of cases to corruption among local police.

The statute, as currently amended, authorizes municipalities to grant permits to neighborhood homeowners’ associations called urbanizations to control vehicular and pedestrian access to the public residential streets within the urbanization (the term referring either to the association or to the controlled area). In such cases, the area is enclosed with fencing or other barriers and with one or more entry and exit gates for pedestrians and vehicles. P.R. Laws Ann. tit. 23, § 64. Some of the gates are manned by security guards paid by the association; others are unmanned and opened by a key or by an electric signal operated by a buzzer linked to the residences within the urbanization.

In some respects, the controlled access regime is a counterpart to the private “gated” residential communities that have developed elsewhere; but in Puerto Rico the streets within the area were and remain public property, and the municipality is closely involved in authorizing the urbanization. To obtain a permit, the residential community must create a residents’ association; propose a plan describing the permanent barriers and access arrangements; file a petition supported by at least three-quarters of the residential homeowners; and assume the costs of installing and operating the plan. P.R. Laws Ann. tit. 23, § 64a.

The statute has various provisions directed to assuring access, P.R. Laws Ann. tit. 23, §§ 64, 64c, 64g, but the most important provision here specifies that the controlled access plan “shall not prevent or hinder residents from outside the community to use and enjoy sports, recreational and other community installations, nor from obtaining the services of private institutions such as schools, churches, hospitals, civic clubs and others, located in the community,” id. § 64b(e). Although the Commonwealth superintends the permit process, each municipality after a public hearing makes the decision whether to approve a permit application, id. § 64b.

The Puerto Rico Supreme Court has upheld the constitutionality of the Controlled Access Law, Asociación Pro Control de Acceso Calle Maracaibo, Inc. v. Cardona-Rodriguez (Maracaibo), 144 D.P.R. 1 (1997), stressing that the enclosed areas remain public property, id. at 28-29, 32, and that “if any regulation approved by any [urbanization] violates constitutionally protected rights, the same will be considered null and void,” id. at 27-28. Administration of an approved regime is left to the individual municipality and urbanization. Id. at 26.

Dozens of municipalities have issued permits to hundreds of urbanizations that encompass in total tens of thousands of residences. According to the Jehovah’s Witnesses’ unrebutted data, urbanizations range in size from a dozen residences to 300 or so, but the average urbanization encompasses about 125 residences, which may be houses, apartments, or a mixture of both. The data is not definitive, but it appears as if about half employ guards and the balance–likely the smaller ones–are accessible only by keys or buzzers.

The Jehovah’s Witnesses have claimed from the outset that they have often been prevented from entering urbanizations to engage in constitutionally protected activity, including door-to-door religious proselytizing. Some controlled access areas, they say, can be entered only through unmanned, locked gates, and residents may choose not to admit visitors; others have security guards who deny entry to proselytizers or who reject all visitors unless a resident or the association grants them specific approval. In still others, it is claimed that guards intermittently deny access to Jehovah’s Witnesses.

The Jehovah’s Witnesses say that they made various efforts to achieve some accommodation but without success. On May 18, 2004, appellants brought suit in federal district court in Puerto Rico seeking declaratory and injunctive relief under 42 U.S.C. § 1983 (2006) against the Governor and three other Commonwealth-level officials. They alleged that the Controlled Access Law, facially and as applied, abridged their right to be secure from unreasonable seizures and their rights to the freedoms of speech, press, association, religion, and travel.

On August 9, 2005, the district court dismissed the facial constitutional challenges to the Controlled Access Law but declined to dismiss the as-applied challenges. Watchtower Bible & Tract Soc’y of N.Y. v. Sanchez Ramos, 389 F. Supp. 2d 171, 188-89 (D.P.R. 2005). Thereafter the court required the appellants to include as defendants municipalities and urbanizations that would be affected by relief. After a survey, the Jehovah’s Witnesses reported that of the 770 controlled-access areas in 59 municipalities covering 96,884 residences, they were unable to access freely 587 urbanizations in 57 municipalities covering 67,095 residences, either because a security guard denied them access to a manned gate or because they did not have means to enter an unmanned gate.

An amended complaint then added as representative defendants eleven of the municipalities and twenty-two of the urbanizations and also alleged equal protection and due process claims. In 2008, eight urbanization defendants agreed to grant Jehovah’s Witnesses “unfettered access,” and the district court entered default judgment against three municipalities and twelve urbanizations, ordering them to grant Jehovah’s Witnesses unfettered access. Appellants allege that Jehovah’s Witnesses remain unable to gain access to the three defaulting municipalities and to nine of the defaulting urbanizations.

On August 10, 2009, the district court granted the remaining defendants’ motions for summary judgment, dismissing the complaint with prejudice and awarding the defendants attorneys’ fees. Watchtower Bible Tract Soc’y of N.Y., Inc. v. Sánchez-Ramos, 647 F. Supp. 2d 103, 125-26 (D.P.R. 2009). The court agreed that some urbanizations have security guards who deny access to Jehovah’s Witnesses absent permission of an urbanization resident, id. at 113, 118, and that some have locked gates, which Jehovah’s Witnesses are unable to enter without a resident’s permission, id. at 118 & n.11. But the court concluded that these plans were acceptable because they all allowed Jehovah’s Witnesses to enter if they coordinated entry with an urbanization resident. Id. at 118-19.

The Jehovah’s Witnesses now appeal from the district court orders refusing declaratory and injunctive relief and awarding attorneys’ fees to the defendants. They say that the statute is facially unconstitutional but, if not, that they were entitled to injunctive relief to address “as-applied” restrictions on access. The primary challenges pressed on appeal are based upon the First and Fourth Amendments; but other issues are also before us including the district court’s grant of attorneys’ fees to the defendants [ . . . ]

Accordingly, we affirm the district court’s dismissal of the facial challenge to the Controlled Access Law but vacate the district court order denying declaratory and injunctive relief on the as-applied claims; we also vacate the order granting attorneys’ fees and costs against the Jehovah’s Witnesses because its premise is undermined by our decision; and we remand the case for further proceedings consistent with this decision. Each side has obtained something from this appeal and each shall bear its own costs.