Last week, in a case that we reported on last summer involving protests near abortion clinics in Harrisburg, Pennsylvania, the Third Circuit Court of Appeals remanded the plaintiffs’ request for a preliminary injunction back to the district court, finding that the lower court misapplied the narrow tailoring analysis.

The facts of the case, which challenges Harrisburg’s protest-free buffer zone requirement around abortion clinics, can be found on our post from last fall.  The buffer zone in question is a 20-foot zone extending from the entrance to a reproductive health care clinic in which congregating, patrolling, picketing, and demonstrating are unlawful.  Following the district court’s denial of a preliminary injunction, the plaintiffs appealed that ruling to the Third Circuit. 

On appeal, the Third Circuit found that the district court had not properly applied the standard for a preliminary injunction.  In the Third Circuit—consistent with other federal courts of appeals—a preliminary injunction may be obtained if a plaintiff can show (1) a reasonable likelihood of probability on the merits of its claim, (2) that it will be irreparably injured if the preliminary injunction is not issued; (3) that the plaintiffs’ interest outweighs the possibility of harm to other interested parties; and (4) that the preliminary injunction is in the public interest.  The Third Circuit clarified that the first two factors must be met, after which the district court can consider the third and fourth factors.  The district court is then required to balance all four factors to determine whether a preliminary injunction should issue.

The Third Circuit found that the district court erred, because it placed the burden of proof on the plaintiffs to show that the law in question was not narrowly tailored.  The appeals court noted that, typically, it is the plaintiff’s burden to established a reasonable likelihood of success on the merits.  However, in First Amendment litigation, the burden is on the government to establish that its regulations meet intermediate scrutiny.  Because the district court did not analyze the case properly, the Third Circuit vacated the district court’s order denying the preliminary injunction, and remanded the case back to the district court, with instructions to allow the city defendants an opportunity to demonstrate that their regulation was narrowly tailored.

Reilly v. City of Harrisburg, ___ F.3d ___, 2017 WL 2272114 (3d Cir. May 25, 2017).