Rodgers v. Stachey

          MEMORANDUM OPINION & ORDER

          ROBERT T. DAWSON, SENIOR U.S. DISTRICT JUDGE

         The City of Hot Springs, Arkansas has adopted an ordinance restricting communication by means of physical interaction between persons in public roadways within city limits. The ordinance distinguishes messages between pedestrians and vehicle occupants attempting to communicate and subjects these individuals to differential treatment. This Court now holds that the ordinance is a content-based regulation of speech that cannot survive strict scrutiny. Although the effort by the City to enact the ordinance does not meet constitutional requirements, the City is not to be criticized for its attempt protect the safety of its citizens and those who use the streets.

         This matter is before the Court on a Motion for Summary Judgment filed by Plaintiff. ECF No. 31. Defendant has filed a Response in Opposition to Plaintiff's Motion (ECF. No. 34), and Plaintiff filed a Reply to Defendant's Response (ECF No. 39). Also, before the Court is Defendant's Motion for Summary Judgment (EDF No. 36), to which Plaintiff has filed a Response in Opposition (ECF No. 41), and Defendant has filed a Reply to Plaintiff's Response (ECF No. 42). This matter is ripe for the Court's consideration.

         I. BACKGROUND

         Plaintiff, a beggar and panhandler (as described in his pleadings), is a disabled veteran who has “resorted to begging in order to have enough money to live on.” Pl.'s Mot. Summ. J., Ex. 1, ECF 31-1. Plaintiff regularly begs within the city limits of Hot Springs, Arkansas (the “City” herein), and has been doing so for several years. He has previously been cited, arrested and put in jail by the Hot Springs Police Department for begging alongside public roadways within City limits.^[1] He brings this constitutional challenge to an ordinance enacted by the City prohibiting physical interaction between the occupant of a motor vehicle and a pedestrian while the motor vehicle is in operation on a public roadway unless the vehicle is lawfully parked. Hot Springs, Ark., Ordinance No. 6217 (Dec. 5, 2017) (“the Ordinance”). Alleging the Ordinance was crafted with discriminatory intent against beggars and panhandlers, and claiming the Ordinance abridges his First Amendment right to free speech and is unconstitutionally vague under the Fourteenth Amendment, Plaintiff filed suit under 42 U.S.C. § 1983 seeking declaratory judgment that the Ordinance violates the United States Constitution on its face and to permanently enjoin its enforcement. The named defendant is Jason Stachey in his official capacity as Chief of Police. Plaintiff alleges the Ordinance is unconstitutional because it criminalizes protected speech. Plaintiff claims he is chilled from freely exercising his right to protected speech due to concerns about being warned, questioned, cited, arrested, jailed, prosecuted, found guilty and penalized by fines, penalties, imprisonment and court costs. Plaintiff also claims the Ordinance is unconstitutionally vague because the wording makes it unclear whether he is prohibited from begging on streets and roadways within City limits. Plaintiff seeks declaratory relief, monetary damages, and an award of Plaintiff's costs and attorneys' fees pursuant to 42 U.S.C. §1988. (Second Am. Compl., ECF No. 26.)

         Plaintiff originally filed the complaint in this case seeking to invalidate a completely different City ordinance. On September 6, 2016, the City enacted “An Absolute Ban on Solicitation” making it a crime for a person to “enter upon a roadway, median, or portion of a public street, or otherwise approaching a vehicle located in any portion of a public street or roadway for the purpose of soliciting anything from the occupant of a vehicle.^[2]” Hot Springs, Ark., Ordinance No. 6168 (Sept. 6, 2016) (Ordinance No. 6168 herein). Plaintiff was warned by a member of the Hot Springs Police Department that he would be taken to jail if he violated Ordinance No. 6168, and thereafter Plaintiff was afraid to beg within the City limits. (Pl's Mot. Summ. J, Ex. 1, ECF No. 31-1). On June 27, 2017, Plaintiff filed suit to invalidate Ordinance No. 6168 as unconstitutional. (Compl., ECF No. 1.) Plaintiff also filed a Motion for Preliminary Injunction seeking to prevent enforcement of the ordinance.^[3] (Pl.'s Mot. Prelim. Inj., ECF No. 5.) In its Response to the Motion for Preliminary Injunction, the City notified the Court, “that it will not enforce the existing ordinance [No. 6168] at issue in this case pending a determination on the merits, or a resolution of this case by the parties.” (Def.'s Resp. to Pl.'s Mot. Prelim. Inj. at 1, ECF No. 15.) Based upon this representation and finding no threat of irreparable harm to Plaintiff, the Court denied Plaintiff's Motion for Preliminary Injunction by order entered July 19, 2017 (ECF No. 17). Plaintiff thereafter resumed panhandling “freely in the city without fear.” (Pl.'s Mot. Summ. J., Ex. 1, ECF 31-1).

         A few months later, the City enacted “An Ordinance to Promote Public Safety Within the Roadways and Public Streets of The City of Hot Springs, Arkansas, and for Other Purposes.” Hot Springs, Ark., Ordinance No. 6217 (Dec. 5, 2017).^[4] On December 18, 2017, Plaintiff filed a First Amended and Substituted Complaint seeking to invalidate Ordinance No. 6217 as unconstitutional. (ECF No. 23.) A Second Amended and Substituted Complaint was filed on January 10, 2018 adding Todd Reid as a party plaintiff. (Sec. Am. Compl., ECF No. 26.) Reid identified himself as someone who “has given money to panhandlers while occupying a motor vehicle in operation on the public streets of Hot Springs.” Id. at 3. Reid alleged that Ordinance No. 6217 chilled his First Amendment rights.^[5] Id.

         Ordinance 6217 went into effect January 5, 2018.^[6] The City voluntarily agreed not to enforce Ordinance No. 6217 pending a final determination by this Court as to its validity. Plaintiff wishes to continue to beg in Hot Springs, and he continues to do so while the ordinance is not being enforced. Plaintiff is afraid that if the ordinance is enforced in the future, his right to freedom of expression will again be chilled as he will fear harassment and punishment by the City. (Pl.'s Mot. Summ. J., Ex. 1, ECF No. 31.) No. criminal charges are currently pending against Plaintiff in the City. Id.

         II.

         SUMMARY JUDGMENT STANDARD

         The Federal Rules of Civil Procedure provide that when a party moves for summary judgment:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

         Fed. R. Civ. P. 56(a); Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). The Supreme Court has issued the following guidelines for trial courts to determine whether this standard has been satisfied:

The inquiry performed is the threshold inquiry of determining whether there is a need for trial-whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Agristor Leasing v. Farrow, 826 F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt. Pension Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution affects the outcome of the case. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.

         The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The nonmoving party must then demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik, 47 F.3d at 957. A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256. “On cross-motions for summary judgment, the Court evaluates each motion independently to determine whether there exists a genuine dispute of material fact and whether each movant is entitled to judgment as a matter of law.” Animal Legal Defense Fund v. Reynolds, 353 F.Supp.3d 812, 820 (S.D. Iowa 2019) (citing Sam's Riverside, Inc. v. Intercon Sols., Inc., 790 F.Supp.2d 965, 975 (S.D. Iowa 2011)).

         III.

         DISCUSSION

         A. Whether Plaintiff has Standing to Facially Challenge the Ordinance

         To have standing under Article III, a plaintiff must have suffered an “injury in fact, ” defined as “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted.) There also must be a causal connection between the injury and the defendant's conduct, and the injury must be redressable by a favorable decision. Id. at 561, 112 S.Ct. 2130. The Eighth Circuit has found standing to challenge a statute or an ordinance is present when the challenger has experienced a direct injury or will soon sustain a direct injury redressable by the court. Harmon v. Kansas City, 197 F.3d 321 (8^th Cir. 1999). “A plaintiff need only establish that he would like to engage in arguably protected speech, but that he is chilled from doing so by the existence of [a law preventing or restricting it.]” 281 Care Committee v. Arneson, 766 F.3d 774, 780-82 (8^th Cir. 2014).

         The City does not submit evidence refuting Plaintiff's sworn statement that he has previously been questioned, warned, arrested, jailed, prosecuted, and convicted in Hot Springs for begging, or that Plaintiff was informed he would be taken to jail if he dared to violate City ordinances. There is no factual issue about whether Plaintiff fears future enforcement of the Ordinance, or whether the threat of future injury would be redressed by a favorable decision of this Court. The Court finds that Plaintiff has standing to bring this constitutional challenge to the Ordinance as it applies to his own activities.

         Plaintiff seeks not only to vindicate his own rights as a pedestrian begging in the roadway, but also the rights other pedestrians and motorists and the occupants of motor vehicles whose First Amendment rights may be infringed by the Ordinance. The City argues Plaintiff lacks standing to assert the unconstitutionality of the Ordinance provisions applicable to occupants and drivers of vehicles in operation. “Ordinarily, a party may not facially challenge a law on the ground that it would be unconstitutional if applied to someone else.” Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 864 F.3d 905, 911 (8^th Cir. 2017) (quoting SOB, Inc. v. Cty. of Benton, 317 F.3d 856, 864 (8^th Cir. 2003). However, in addition to finding some statutes unconstitutional as applied to the litigant, the Supreme Court has found other “statutes unconstitutional on their face because it was apparent that any attempt to enforce such legislation would create an unacceptable risk of the suppression of ideas.” Members of the City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796-97, 114 S.Ct. 2118, 80 L.Ed.2d 772 (1983). “Under the First Amendment overbreadth doctrine, an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face ‘because it also threatens others not before the court - those who desire to engage in legally-protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.'” Bd. Of Airport Comm'rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985)). The doctrine may be applied in cases where the overbreadth of the ordinance affecting both conduct and pure speech is both “real” and “substantial” in relation to its “plainly legitimate sweep.” Havlak, 864 F.3d, at 912. To find a statute substantially overbroad, the Court must find a “realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988) (quoting Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 2125, 80 L.Ed.2d 772 (1984)). “We generally do not apply the ‘strong medicine' of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law.” Havlak, supra.

         Plaintiff bears the burden to demonstrate he has standing to bring a facial overbreadth claim. Havlak, id. For such challenges, “the party before the court must identify a significant difference between his claim that the statute is [facially] invalid on overbreadth grounds, and his claim that it is unconstitutional as applied to his particular activity.” Id. (quoting Van Bergen v. Minn., 59 F.3d 1541, 1549 (8^th Cir. 1995). “It is inappropriate to entertain a facial overbreadth challenge when the plaintiff fails to adduce any evidence that third parties will be affected in any manner differently from [himself].” Id.

         Plaintiff describes numerous instances of arguable overbreadth, pointing out that Ordinance inhibits “any individual who physically interacts with a vehicle that has its engine on and who desires to speak to the occupant of that vehicle, including anyone asking or answering a question about directions; or hailing a ride from a taxi, Uber driver, or bus; or anyone seeking assistance from an occupant of a vehicle in operation; or anyone offering assistance, having been asked for assistance from the occupant of a vehicle; or anyone walking toward an occupied vehicle in operation to get in the vehicle while talking to the driver, or anyone holding a political sign who walks toward a vehicle because the occupant has asked a question about the sign.” Pl.'s Br. Supp. Mot. Summ. J. at 7 (ECF No. 32). The Court finds that Plaintiff has identified significant differences between his claim that the Ordinance is unconstitutional as applied to his particular activity of begging, and his claim that the Ordinance is facially invalid on overbreadth grounds. Accordingly, the Court finds the Plaintiff has standing to challenge the ordinance on grounds of facial overbreadth.

         B. The First Amendment Right to Free Speech

          “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal.” Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws “abridging the freedom of speech.” U.S. Const., Amdt.1. The clause applies to a government vested with state authority, including a municipal government, and makes clear that no government “has the power to restrict expression because of its message, its ideas, its subject matter, or its content.” Reed v. Town of Gilbert, Ariz., __U.S.__, __, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015) (citing Police Dept. of Chicago v. Mosely, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 305 (1992)). Laws that stifle speech on account of its message “pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Turner, supra. Content-based burdens on speech “raise the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 116, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). “Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” Turner, supra. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

         1. Whether “Physical Interaction” is Constitutionally Protected Speech

         The Ordinance defines what it means to “interact physically” and specifically states that it “does not include the exercise of protected free speech or expression by any person.” Ordinance 6217 § (1). Plaintiff contends that his panhandling and begging activities constitute protected speech, and the City does not dispute this. Therefore, the Court finds that Plaintiff's begging is expressive activity protected by the First Amendment. See Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (“charitable appeals for funds…involve a variety of speech interests…that are within the protection of the First Amendment…”). This does not end the inquiry, however, because the Ordinance does not prohibit begging or solicitation or panhandling, it prohibits “physical interaction” between a pedestrian and the occupants of a motor vehicle in operation on the roadway when the vehicle is not legally parked.

         The City asserts that Plaintiff and others are not prohibited from exercising their constitutional rights to speech in the public streets and roadways of the City, pointing out that the Ordinance does not target speech in any form and does not reference any type of protected First Amendment activity. Def's Resp. Mot. Summ. J. (ECF No. 34). The Ordinance does not prohibit any person from entering the roadway to speak, it only forbids them to interact with vehicles and pedestrians in ways that pose traffic safety concerns, regardless of whether they are speaking. Citing United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the City argues that the First Amendment right to free speech does not include all conduct connected to speech. The Court interprets this argument to mean that “physical interaction” as it is defined in the Ordinance is not speech protected by the First Amendment.

         The Court is unpersuaded by the City's effort to separate physical interaction from its expressive intent or message as a means of avoiding conflict with the First Amendment. While it is true that the right to free speech does not include all conduct that is connected to speech, when it comes to physical interaction between humans, the act itself is often both the message and the conduct. In many instances the two are so intertwined it is not possible to separate the speech and non-speech elements. All people everywhere routinely communicate non-verbal messages through physical interaction, often without even noticing it. It is visceral and instinctive, and it is often the quickest way to communicate. Messages conveyed through physical interaction include acknowledgment, support, contribution, charity, love, gratitude, agreement, acceptance, instruction, compliance, cooperation, inclusion, generosity, praise, disgust, aggression, sympathy, and sadness just to name a few. It matters not that the Ordinance does not prohibit with specificity the exact messages delivered through physical interaction. “[A] narrow, succinctly articulable message is not a condition of constitutional protection.” Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). Whether conduct is expressive is determined by looking to surrounding circumstances. Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235 (11^th Cir. 2018) (context may be ...