Reilly v. City of Harrisburg — civil — reversal — Ambro

The Third Circuit today clarified the standard for granting preliminary injunctions. It’s always been clear that the preliminary injunction test has 4 pieces — (1) probability of success, (2) irreparable injury, (3) harm to others, and (4) public interest — but circuit caselaw has been contradictory about how the burden of proof works. Some cases said the movant has the burden of proving only the first two, while others said the movant must prove all four.

Today, the court held that the movant has the burden of proving only the first two parts of the test. It reasoned that this rule predated the must-prove-all-four cases and thus was binding under the rule that later panels can’t overrule earlier ones. It also reasoned that a contrary result wasn’t required by the Supreme Court’s 2008 statement that  “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

The underlying case arose from a challenge against Harrisburg’s 20-foot health-care buffer-zone ordinance brought by “sidewalk counselors” who seek to dissuade women from getting abortions. Despite the incendiary nature of the underlying suit, I read today’s opinion as entirely non-ideological and limited to cleaning up how the preliminary-injunction standard works.

Joining Ambro were Jordan and Roth. Arguing counsel were Horatio Mihet of Liberty Counsel for the movants and Joshua Autry of Lavery Faherty for the appellees.