Watchtower Society v Dorado

8/9/2019 Watchtower Society v Dorado

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IN THEUNITEDSTATESCOURTFOR THEDISTRICT OFPUERTORICO

WATCHTOWERBIBLETRACTSOCIETY OFN.Y., INC., ET AL.,

Plaintiff,

v.

MUNICIPALITY OFDORADO ,ET AL.,

Defendant.

CIV. NO.: 04-1452(GAG/SCC)

OPINION AND ORDER

For well over a decade, Jehovahs Witnesses have foughtfor access to Puerto Ricos urbanizationsneighborhoods onpublic streets, surrounded by controlled-access gatesso thatthey might be able to perform one of the central tenets of theirreligion: the door-to-door preaching of the contents of theBible and its importance to people today. AMENDEDCOM-PLAINT , Docket No. 49, 58. In seeking to exercise their basicFirst Amendment rights, the Jehovahs Witnesses have metmuch resistance, especially from some of the urbanizations into

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WATCHTOWER BIBLE & TRACT SOCY v. DORADO Page 2

which they seek entry. To alleviate these impositions on the Jehovahs Witnesses rights, the Court has put into place aremedial structure that charges the covered municipalities withensuring that the urbanizations within their jurisdiction respectthe Jehovahs Witnesses rights to enter and preach door-to-door. Now before me on a referral from the presiding district judge is a motion alleging that the Municipality of Dorado hasfailed in its obligations and seeking a finding that Dorado is incontempt. Docket No. 1409;see also Docket No. 1415. A hearingon this matter was held on January 22, 2015.See Docket No.1417. Based on the evidence adduced at that hearing, it is1

apparent that Dorado misunderstands its obligations; as aresult, it has repeatedly failed to secure the Jehovahs Wit-

nesses free exercise rights within Dorados urbanizations.

1. Originally, Plaintiffs also sought sanctions against Dorado regardingtwo other urbanizations, Los Prados and Mi Querido Viejo. The partiesreached an agreement during the hearing whereby Plaintiffs agreed notto continue to seek sanctions regarding these two urbanizations. Aspart of this agreement, Dorado admitted to receiving several lettersregarding problems at those urbanizations. The parties further agreedto the following, which the Court adopts: The Jehovahs Witnesses donot have access to tele-entry codes for Los Prados or Mi Querido Viejo;Dorado will provide tele-entry codes for both urbanizations once the Jehovahs Witnesses provide Dorado with a telephone number that thecodes can be programmed with.



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Below, I first explain why Dorados understanding of itsobligations is inconsistent with the repeated statements of thisCourt and the First Circuit; second, I recount Dorados re-peated incidents of non-compliance; third, I make severalremedial orders aimed at ensuring Dorados future compli-ance; and last, I recommend that the presiding judge makecertain contempt findings against Dorado.

I. Dorados Obligation to Protect the Jehovahs Wit-

nesses Free Exercise Rights

The urbanizations into which the Jehovahs Witnesses seekentry are nominally private entities, but under Puerto Rico law,their streets are public. The urbanizations must be approved bythe municipality in which they are located, and as such the

municipalities have a direct role in making sure that theurbanizations policies do not impede public access or citizensconstitutional rights.See Watchtower Bible & Tract Socy of N.Y.,Inc. v. Sagarda De Jesus [hereinafter,Watchtower I ], 634 F.3d 3,67 (1st Cir. 2011);Watchtower Bible & Tract Socy of N.Y., Inc. v.Colombani [hereinafter,Watchtower II ], 712 F.3d 6, 89 (1st Cir.2013). Moreover, there are hundreds of urbanizations in Puerto

Rico, and so while they are each likely state-actors with regardsto Plaintiffs access, administration of an injunction against



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each individual urbanization would prove highly burdensomefor both the Court and for Plaintiffs. Accordingly, the Courthas used its broad discretion to design a remedial scheme thatfocuses on the municipalities.See, e.g. , Watchtower Bible & TractSocy of N.Y., Inc. v. Municipality of San Juan [hereinafter,Watchtower III ], 773 F.3d 1, 7 (1st Cir. 2014) (The centerpiece ofthe district courts remedial scheme with respect to unmannedurbanizations is a mandatory injunction directed at themunicipal defendants.). This decision [r]ecogniz[es] thepivotal role of the municipalities in the permitting process andthe idiosyncracies of the urbanizations that dot the landscape.Watchtower II , 712 F.3d at 13.

With respect to manned urbanizations, the Court entered

an injunction mandating defendant Municipalities to ensurethat all urbanizations within their jurisdiction are in compli-ance with the pronouncements of the First Circuit. Docket No.710, at 2;see alsoDocket No. 718 (entering judgment againstDorado on these grounds). To that end, Dorado and othercovered municipalities were ordered to certify an action planthat would assure that any Jehovahs Witnesses denied access

[to a manned urbanization] be granted entry promptly, withina reasonable time. Docket No. 710, at 3. The action plan that



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Dorado submitted, Docket No. 787-1, and which was ulti-mately approved by the Court with Plaintiffs consent, DocketNo. 790, is rather vague on the specifics of how Dorado wouldmeet its obligations. It merely urge[s] urbanizations tocomply with the Courts orders (which were, of course,directed to the municipalities), and, with respect to non-compliant urbanizations, Dorado washes its hands of theproblem, informing the urbanizations that they may bedeclared in contempt of the Court as well as to claims fordamages and to the imposition of economic sanctions. DocketNo. 787-1, at 2;see also id. at 3 (If the refusal to authorizeaccess to the urbanization or the community is reiterated, theincident will be notified to the [Court] for it to take the proper

legal measures.). These matters notwithstanding, the actionplan does commit the Dorado municipal police to assisting Jehovahs Witnesses gain access to intransigent urbanizations;indeed, a responding officer is required to remain at the siteuntil the visitor gains access.Id. at 3.

Dorados action plan evinces a misapprehension of its rolein the remedial scheme. It apparently sees its role as, princi-

pally, an informational one: tell the urbanizations what theyare meant to do, and tell the Court when the urbanizations



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dont comply. Statements made by Dorados counsel at thecontempt hearing confirm that the municipality does not believe that it is required to enforce the Courts orders vis--visits urbanizations. For instance, Dorados counsel asked theCourt to cite one of its urbanizations directly for contempt,seeking to shirk its own duty with respect to that urbanization.

Given this misapprehension, it bears restating what therecord already makes exceptionally clear: each municipalityhas an ongoing duty to ensure that the First Amendment isrespected in the urbanizations founded under its auspices.Watchtower III , 773. F.3d at 9;see also Docket No. 633, at 45([A] municipalitys delegation of a portion of its authorityover public streets to homeowners associations does not

abrogate the municipalitys obligation to ensure that publicstreets remain available for public use.). To this end, Dorado,like other municipalities, may impose sanctions on a waywardurbanization even after a permit is issued and recorded.Id.(citing P.R. Laws Ann. tit. 23, 64d). Thus, when a JehovahsWitness is denied access to an urbanization in Dorado, legalresponsibility . . . may be placed on Dorado itself.Id. at 89.

Given these principles, to the extent that the Dorado ActionPlan was ever sufficient, it has plainly been superseded by



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subsequent orders of this Court and the First Circuit. Doradomust protect the Jehovahs Witnesses First Amendment rightswithin its urbanizations.

Dorados conduct and arguments also make clear that itmisunderstands what this Court means when it says that the Jehovahs Witnesses must be given access to urbanizations.As I explain in more detail below, on at least one occasion anurbanization in Dorado made the Jehovahs Witnesses entryinto an urbanization contingent on their parking in a specificspot (in a particularly large urbanization) and, more problema-tically, not knocking on residents doors. In this case, the Jehovahs Witnesses, with the help of Dorados Police Commis-sioner, were able to cross the urbanizations threshold, but they

were not allowed to preach. Surprisingly, Dorado argued atthe hearing that it had satisfied its obligations pursuant to theInjunction at Docket No. 710, because the congregants hadaccessed the urbanization. Implicit in Dorados argument is2

2. Similarly, Dorados counsel asked a number of questions of witnessesduring the hearing that stressed that its agents did not themselvesprevent the Jehovahs Witnesses from preaching in Sabanera. In fact,there is no evidence that any of Dorados officers did anything toactively impede the Jehovahs Witnesses rights; indeed, when its policechose to respond, it seems that they did so with a mostly-correct



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the belief that access, as used in Docket No. 710, meansnothing more than physically passing the urbanizations gate.

Dorados position is flatly wrong. Worse, it reveals thatafter eleven years of litigation, Dorado still does not under-stand the important First Amendment concerns that haveanimated this case. The Jehovahs Witnesses purpose in bringing this suit is not simply to walk silently down thestreets of Puerto Ricos controlled-access communities; rather,they brought this suit so as to be free to engage in door-to-doorministry, an important tenet of their faith. For decades, Jeho-vahs Witnesses have fought to secure that precise right. As theSupreme Court has written:

For over 50 years, the Court has invalidated restrictions

on door-to-door canvassing and pamphleteering. It ismore than historical accident that most of these casesinvolved First Amendment challenges brought by Jehovahs Witnesses, because door-to-door canvassingis mandated by their religion. . . . [B]ecause they lacksignificant financial resources, the ability of the Wit-nesses to proselytize is seriously diminished by regula-

understanding of the Witnesses rights of access to Sabanera. Thesefacts neither insulate nor absolve Dorado, however. As I explain, themunicipality had to do more than not impede Plaintiffs accessthemunicipality had toensure it.



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tions that burden their efforts to canvas door-to-door.

Watchtower Bible & Tract Socy of N.Y., Inc. v. Vill. of Stratton , 536U.S. 150, 16061 (2002). Likewise, the First Circuit wrote inWatchtower III that [t]here can be no doubt that the FirstAmendment protects access to traditional forums, including

public streets, for the purposes of engaging in door-to-door minis-try . Watchtower III , 773 F.3d at 11 (emphasis added);see alsoWatchtower I , 634 F.3d at 1011 (Access to public streets andproperty for purposes of expression,including door-to-doorreligious proselytizing , has long been protected by the FirstAmendment. (emphasis added)). The point is that the door-to-door ministry is the conduct that the Jehovahs Witnesses are

seeking to protect. To a great degree, the controlled-accessregimes of Puerto Ricos urbanizations have been found to beunconstitutional as applied to Plaintiffs preciselybecause theyimpeded Plaintiffs right to engage in that ministry. Thus, it beggars belief when Dorado argues that it has complied withits obligations by giving the Jehovahs Witnesses physicalaccess to an urbanization when that access is predicated ongiving up the right that the Witnesses have all along sought toprotect.



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Dorados position is all the more unreasonable given thatthe presiding judge specifically rejected it almost two years agoin a published opinion that explicitly applied to all coveredmunicipalities.See Watchtower Bible & Tract Socy of N.Y., Inc. v.Rodrguez , 920 F. Supp. 2d 241 (D.P.R. 2013). In that matter, an3

urbanization in San Juan, Puerto Rico, allowed Plaintiffs tophysically enter, but it prohibited them from engaging in door-to-door ministry. See id. at 241. There, the urbanizationarguedas Dorado does herethat the Courts orders onlyrequired entry, but were silent as to whether JehovahsWitnesses have the right to ring doorbells, knock on doors, orotherwise enter private property in order to complete theirdoor-to-door ministry.Id. at 242. The presiding judge rejected

the urbanizations arguments out of hand: The case lawgoverning this issue is clear. Not only do Jehovahs Witnesseshave the right to enter urbanizations, but they also have theright [to] ring doorbells and knock on household doors, evenif they must enter private property to do so.Id. Writing in bold and with caps-lock on, the presiding judge went on toexplicitly endorse[] the right of the Jehovahs Witnesses to

3. This Opinion is also available at Docket No. 904.



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engage in such conduct.Id. (emphasis omitted). Furthermore,the municipalities were warn[ed] that the Court w[ould]not tolerate any restrictions placed on such activities by aMunicipality or an urbanization.Id. (emphasis added).4

It has thus been clear for at least two years that Plaintiffsright of access to urbanizations includes the right to engagein protected religious activity within those urbanizations,including door-to-door ministry. Further, Doradolike allother covered municipalitiesmust not allow urbanizations toplace conditions on Plaintiffs exercise of their First Amend-ment rights; indeed, where urbanizations in Dorado attempt todo so, it is Dorados responsibility, pursuant to this Courts judgment, to see that the practice is ended.

4. In the Supreme Courts words, the right of a person to approach ahomes door generally depend[s] upon the will of the individualmaster of each household, and not upon the determination of thecommunity. Martin v. City of Struthers , 319 U.S. 141, 141 (1943). Thus,while neither Sabanera nor any other urbanization can wholesaleprohibit Plaintiffs from accessing their public streets for the purposesof engaging in protected First Amendment activity, individualhomeowners may express their own personal unwillingness to besolicited.See id. To this end, the presiding judge has previously orderedPlaintiffs to respect individual homeowners wishes to be left alone,such as when that wish is expressed through a sign.See Watchtower Bible& Tract Socy of N.Y., Inc. , 920 F. Supp. 2d 241, 24243 (D.P.R. 2013).



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II. Dorados Failures to Ensure Plaintiffs Access to

Urbanization Sabanera de Dorado

Plaintiffs attempted and failed to enter UrbanizationSabanera de Dorado several times since August 2014. Below,I recount each of those instances along with Dorados failure toremedy the situation.

On August 30, 2014, Carlos Ramos-Maldonado, along withhis wife and another member of the congregation, went toSabanera to preach at around 10:30 in the morning. Afterstating their names and purpose, the guard denied them accessto the urbanization. Ramos called the municipal police, but theofficer who answered said that they were too busy to sendanyone to help. As such, Ramos and his companions left,

unable to perform their ministry. As they were leaving, anemployee leaving the urbanization told them, the administrat-ion is willing to pay the fines, so please dont come back. Thisincident was reported to Bernardo Rivera, the elder in chargeof coordinating preaching, who reported it to the JehovahsWitnesses New York legal department.

On October 17, 2014, at around 11:00 a.m., Toms Prez,

along with his wife and daughter, attempted to enter Sabanerato preach door-to-door. After identifying themselves and



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stating their purpose, the guard on duty denied them access,stating that the area was private. Prez then called the munici-pal police. The officer to whom Prez spoke confirmed that theguard had to grant Prez entry; he then asked Prez for hisname and cell phone number and said he would come toSabanera. Prez waited for 45 minutes at a friends houseinside of Sabanera, but he never received a phone call from theofficer. As such, he was unable to preach door-to-door thatday.

On November 22, 2014, Ramos returned to Sabanera alongwith Rivera and another congregant. They identified them-selves and stated their purpose but were denied entry by theguard. Ramos called the municipal police and was told to call

a Lt. Ortz, whose cell phone number Ramos was given. Ramosand his companions waited thirty minutes to see if any policeassistance arrived, and when it did not, Ramos called Lt. Ortz,who said he was too busy to help and that Ramos should callthe Police of Puerto Rico (POPR). Ramos then called themunicipal police again, and the desk sergeant said that hecalled POPR but they were busy and there would be a wait.

Ramos and his companions waited another thirty minutes, tono avail. They left, unable to perform their ministry. The



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incident was reported by Rivera to Plaintiffs legal department.On January 1, 2015, Bernardo Rivera went to preach, along

with his wife and sons, at around 11:00 a.m. After identifyingthemselves and their purpose, they were refused entry by theguard. Rivera called the police and spoke with an officer whosename he believes to have been Torres. Agent Torres told Riverathat he was not allowed to intervene and that Rivera should goto Commonwealth court in Bayamn, file a motion, and returnwith an order from that court saying that he was permitted toenter Sabanera. Rivera hung up and waited thirty minutes forpolice assistance to arrive; none did, and so he left, unable toperform his ministry. Rivera reported the incident to Plaintiffslegal department.

After the failed entry on January 1, 2015, where Rivera wasgiven the oddly specificand confusinginstruction to seeka writ from a Commonwealth-court judge, Plaintiffs filed amotion seeking that Dorado be held in contempt. Docket No.1411. Pursuant to a referral order from the presiding judge, Ischeduled a contempt hearing for January 15, 2015.See DocketNo. 1414. That hearing was not held. Plaintiffs made it clear

that they were seeking compliance more than they wereseeking sanctions. As such, I gave Dorado twenty-four hours



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to solve the problems that had given rise to the contemptmotion, in the hopes that doing so might obviate the need forcontempt proceedings.See Docket No. 1417 (giving the parties24 hours to file a joint motion informing of compliance inproviding access).

But even after that Orderand with the threat of contemptproceedings loomingDorado failed to make good on itsobligations. On January 16, 2015, at around 1:00 p.m., Prezarrived again at Sabanera along with two other congregants.They identified themselves and stated their purpose, and thistime the guard told them that they could enter the urbaniza-tion, but only on the condition that they park in a specific spotnear the gate and refrain from knocking on doors within the

community. Prez then called Rivera to tell him what had5happened. Prez waited for some time, and eventually Riveracalled him back and told him to call the municipal police. Prezdid so, and eventually the Commissioner of the Dorado police,

5. With regard to the matter of parking, counsel for Dorado assertedwithout evidence that Sabanera does not permit street parking. Theevidence adduced at the hearing shows, to the contrary, that guests andresidents routinely park on Sabaneras streets.



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Guadalberto Matos-Burgos, arrived on the scene. Together,6

Prez and Commissioner Matos went to speak with Sabanerasadministrator. Commissioner Matos told the administrator thatPrez had a right to preach door-to-door, but the administratorsaid that she had been told to only allow Jehovahs Witnessesphysical entry into the urbanization. Eventually, however, theadministrator relented and said that Prez could do hisministry. Commissioner Matos and Prez left, but the adminis-trator soon changed her mindapparently after a phone callwith Sabaneras counseland told Prez that he couldntknock on doors after all. Commissioner Matos heard the

6. How, precisely, Commissioner Matos arrived on the scene is the only

point of real factual contention to arise from the hearing. According toPrez, he called the municipal police and spoke to an agent namedPagan, who in turn called Commissioner Matos. Commissioner Matostestified, however, that he received a call from Dorados municipaladministrator, Orlando Vargas-Lpez, who told him to go to Sabanera;Commissioner Matos further testified that Pagan told Matos that therehad been no previous call to the station regarding Sabanera. Noevidence was introduce as to why Vargas called Commissioner Matos.To the extent that there is even a conflict between Prezs andCommissioner Matoss testimony, it is likely the result of each witnesshaving incomplete information regarding what was happening thatday. In any case, I find that Prez did call the municipal police, as hetestified, but that Commissioner Matos was called by Vargas.Ultimately, it matters very little, as Prez and Commissioner Matosagree on the substance of what happened at Sabanera that day.



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administrator say this, but he did nothing to reverse orsupersede her decision. As such, Prez left, unable to performhis ministry. Prez reported these events to Rivera, whoreported them to the Jehovahs Witnesses legal department.

Altogether, the evidence at the hearing shows that on atleast four occasions, Jehovahs Witnesses were refused entry bySabanera, and, despite contacting the municipal police, weregiven no assistance whatsoever. This violates the Courts clearmandates as well as Dorados action plan. On a fifth occasion,the police arrived but failed to ensure that the JehovahsWitnesses were able to engage in door-to-door ministry,despite the Courts explicit command that Plaintiffs rights ofentry could not be conditioned on their agreeing to give up

their right to proselytize. This constitutes a meaningful patternof non-compliance on Dorados part.

Dorado argues that there is no such pattern because,according to its municipal administrator, Orlando Vargas-Lpez, it only learned of the problems with Sabanera lastweek. To similar effect, Dorados counsel repeatedly asked thetestifying Jehovahs Witnesses whether they had notified

anyone in the municipality other than the police. Apparently,these questions were meant to suggest that Dorado could not



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have been expected to solve the problems with Sabanera because it was unaware of them. But the Witnesses testimonythat they were repeatedly denied access to Sabanera, and thatthey reported these problems to the municipal police, wasutterly credible. And once they called the police, they had no7

obligation to do anything further; at that point, Dorado wasconstructively aware of the problems and obligated to fixthem. Of course, if Dorados police are not taking these calls8

7. Beyond the minor discrepancies regarding who told CommissionerMatos to come to the scene on January 16, 2015, Dorado presented noevidence whatsoever that would have called Plaintiffs witnessestestimony into question. Dorado did attempt to introduce evidence thatseemingly would have suggested that the names of police officers thatthe witnesses remember speaking to were incorrect, but that evidence

was not admitted. Even if it had been, however, mis-rememberednames from short conversations months in the past would not convinceme that Plaintiffs werent being truthful. Based on the witnessesdemeanor and the consistency of their testimonies (not to mention theirconsistency with the testimony of Commissioner Matos), I harbor nodoubts that the incidents occurred as recounted above.

8. The action plan on which Dorado so heavily relied during the hearinginstructs Jehovahs Witnesses denied access to an urbanization to callthe municipal police, who are obligated to promptly attend thecomplaint presented, in order to guarantee compliance with the courtorder. Docket No. 787-1, at 3. This is consistent with the operative judgment, which requires municipal action plans to provide a method by which Jehovahs Witnesses turned away at manned urbanizationsmay vindicate their rights, such as by a municipal police hotline.



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seriously, or are not appropriately reporting them up the chainof command, that is not a problem for Plaintiffs or this Court.It is a problem for Dorado, and one it should consider resolv-ing.

III. Remedial Orders

Given Dorados repeated non-compliance, its failure tocome to terms with the breadth of this Courts judgments, andthe weak compliance mechanisms in its action plan, I believethat various remedial orders are necessary to ensure Doradosfuture compliance with the Courts mandates. Chief amongthese is a requirement that Dorados action plan be updated soas to explicitly comply with the Courts orders. At a minimum,the amended action plan must do the following:

1. Requirenot urgemanned urbanizations within themunicipality to grant Jehovahs Witnesses access to theurbanizations. It must make explicit the fact thataccess means more than physical entry; it means theright to engage in door-to-door ministry. It must alsomake clear urbanizations may not impose conditions onthe Jehovahs Witnesses outside of those found in

Docket No. 710, at 3;see also Docket No. 718. At no point does the plansuggest that any other municipal officer need be contacted.



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orders from this Court or the First Circuit.2. Implement a sanctions regime under this auspices of the

municipal administrator, by which the municipality willpunish urbanizations that fail to provide Plaintiffs withfull access. The sanctions regimemay include monetarysanctions, but itmust include the revocation of con-trolled access permits for urbanizations that repeatedlydeny Plaintiffs access.

3. Provide a contact number by which Jehovahs Witnessescan notify the municipal police that they have beendenied access to an urbanization, and obligate themunicipal police to promptly respond. Further, re-sponding municipal police officers mustactually ensure

that the Jehovahs Witnesses are granted full access,including, if necessary, by locking gates in an openposition.

4. Require the police to make reports of all such calls by Jehovahs Witnesses, and to forward such reports to adesignated official within the municipal government.

The theme running through these requirements is that the

Court should not need to be involved in the routine disciplin-ing of intransigent urbanizations. Under the Courts judgments



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and orders, that job is Dorados, and it should be performedwithout this Courts intervention. The Court does not intend tocite individual urbanizations (which are not parties to thislawsuit) for contempt; it will, however, hold municipalities incontempt for failing to ensure that the First Amendment isrespected in the urbanizations founded under [their] auspices.Watchtower III , 773 F.3d at 9. To that end, Dorado must developa mechanism by whichit will protect Plaintiffs rights. A draftupdated action plan, consistent with the above, must be filedwith the Court by Friday, February 13, 2015. Dorado is9

reminded, however, that the above discussion is merely arestatement of the orders and mandates already in the recordand operative upon it; as such, the Court expects Dorado to act

in accordance with those principlesimmediately.As for the specific matter of Sabanera, by 5:00 p.m. on

January 27, 2015, a municipal officer must speak with theurbanizations administrator and inform her of the urbaniza-tions responsibility to respect Plaintiffs First Amendmentrights, as well as Dorados responsibility to use its authority tosee that those rights are respected. The Court expects that

9. Dorado is forewarned that the Court will extend neither this nor theother deadlines imposed by this Order.



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Courts previous orders. Moreover, in the most recent instance,Dorado failed to comply despite an additional order from theundersigned, as well as a pending contempt proceeding.Pursuant to 28 U.S.C. 636(e)(6), I certify the above facts to thepresiding district judge and recommend that Dorado be heldin contempt and fined $1,000 for each instance of non-complia-nce, for a total of $5,000. I further recommend that Doradoreimburse Plaintiffs for their attorneys fees in the amount of$3,000.

IT IS SO ORDERED.In San Juan, Puerto Rico, this 26th day of January, 2015.

S/ SILVIA CARREO-COLLUNITED STATES MAGISTRATE JUDGE


Documents

Watchtower Society v Dorado