United States District Court, W.D. Arkansas
MEMORANDUM OPINION & ORDER
T. DAWSON, SENIOR U.S. DISTRICT JUDGE
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.
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
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. 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.)
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.” 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. (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).
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). 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
6217 went into effect January 5, 2018. 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.
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.
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.
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)).
Whether Plaintiff has Standing to Facially Challenge the
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 (8th 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
(8th Cir. 2014).
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.
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
(8th Cir. 2017) (quoting SOB, Inc. v. Cty. of
Benton, 317 F.3d 856, 864 (8th 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.
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 (8th 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.
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.
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).
Whether “Physical Interaction” is
Constitutionally Protected Speech
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.
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
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 (11th Cir.
2018) (context may be ...