Bruce WRIGHT, Plaintiff-Appellant, v. CITY OF ST. PETERSBURG, FLORIDA, Defendant-Appellee.
No. 15-10315
United States Court of Appeals, Eleventh Circuit.
Date Filed: 08/15/2016
1291
Before ED CARNES, Chief Judge, JILL PRYOR, Circuit Judge, and REEVES,* District Judge.
* Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by designation.
Joseph Paul Patner, Office of the City Attorney, Saint Petersburg, FL, for Defendant-Appellee.
Bruce Wright obstructed a police investigation and resisted arrest in a city park in St. Petersburg, Florida. He was arrested for that unlawful conduct and the arresting officer issued him a “trespass warning” under
I.
Wright is an ordained minister, co-director of an addiction recovery program, and advocate for the poor and homeless.1 As part of his work he hands out flyers and offers counseling to people who might benefit from his recovery program. Of the City‘s 142 parks, Wright prefers to use Williams Park in downtown St. Petersburg for his ministerial outreach and advocacy work because many poor and homeless people visit it. He also organizes and attends demonstrations, ranging from “sleep-outs” for the homeless to human rights marches, which have been held in Williams Park and other public areas in the city (such as streets and sidewalks). There is no question that the First Amendment protects Wright‘s ministerial outreach and рolitical speech. See Snyder v. Phelps, 562 U.S. 443, 451-53, 131 S.Ct. 1207, 1215-16, 179 L.Ed.2d 172 (2011); Heffron v. Int‘l Soc‘y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981).
On March 27, 2013, Officers Steven Laurenzi and Richard Targaszewski were patrolling Williams Park when they encountered Wright. They were speaking to a man who had an outstanding arrest warrant when Wright approached them from behind, told the officers to stop harassing the man, and asked what the man had done wrong. Laurenzi cautioned Wright not to interfere, told him several times to step back, and warned him that he would be arrested for obstructing an investigation if he did not back off. When Wright refused to back off and stop, Laurenzi arrested him. Targaszewski had to help Laurenzi handcuff Wright because he braced and tensed his arms. Wright was arrested for two counts of resisting an officer without violence or obstruction. He later pleaded guilty to that offense, and the trial court withheld adjudication.
When Laurenzi arrested Wright he also issued him a “trespass warning” for Williams Park under
Wright‘s trespass warning under Ordinance § 20-30 prohibited him from re-entering Williams Park for one year. The prohibition made his ministerial outreach more difficult because he could nо longer interact with people inside the park. The trespass warning also prevented him from attending a press conference on police brutality held inside the park the day after his arrest. Wright appealed his warning according to the procedures in the ordinance, and the hearing master denied his appeal, concluding that the warning had been lawfully issued. He appealed that denial to a three-judge panel of the Sixth Judicial Circuit Court in and for Pinellas County, which upheld that decision.
On April 19, 2013, Wright applied to the City for a suspension of his trespass warning under
In October 2013 Wright filed a complaint against the City under
II.
We review de novo the grant of summary judgment to the City. CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006). We also review de novo the constitutionаlity of ordinances. Café Erotica of Fla., Inc. v. St. Johns Cty., 360 F.3d 1274, 1282 (11th Cir. 2004). We can “affirm for any reason supported by the record,” even if the district court did not rely on that reason. United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012).
Wright raises three challenges. First, he contends that Ordinance § 20-30 as a whole violates the First Amendment on its face and as applied to him because it allows the City to exclude people from traditional public fora, including people who wish to engage in protected expression. Second, he contends that
A. First Amendment Challenge to Ordinance § 20-30
To succeed on his facial challenge, Wright must show that Ordinance § 20-30 is “unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008). There is an exception to that rule for facial challengеs based on the overbreadth doctrine if the plaintiff can show that a “substantial number of [the statute‘s] applications are unconstitutional, judged in relation to [its] plainly legitimate sweep.” Id. at 449 n.6, 128 S.Ct. at 1190 n.6 (quotation marks omitted). We have already held that § 20-30 is not facially unconstitutional under the overbreadth doctrine, Catron v. City of St. Petersburg, 658 F.3d 1260, 1269-70 (11th Cir. 2011), and we are bound by that decision.3 See Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001) (“Under the well-established prior panel precedent rule of this Circuit, the holding of the first panel to address an issue is the law of this Circuit, thereby binding all subsequent panels....“). If a plaintiff cannot show that a statute is unconstitutional in a substantial number of its applications, as overbreadth challenges require, he certainly cannot show that all applications of it are unconstitutional. See Wash. State Grange, 552 U.S. at 449 & n.6, 128 S.Ct. at 1190 & n.6; see also United States v. Martinez, 736 F.3d 981, 991 (11th Cir. 2013) (Carnes, C.J., concurring) (stating that the difference between a regular facial challenge and an overbreadth challenge is “having to show that all applicаtions of the statute are unconstitutional and having to show that a substantial number of them are“), (emphasis added), vacated on other grounds, Martinez v. United States, — U.S. —, 135 S.Ct. 2798, 192 L.Ed.2d 842 (2015). It follows that Wright‘s facial challenge fails.
His as applied challenge does not fare any better. Wright contends that Ordinance § 20-30 impinges on First Amendment rights because it restricts his access to a traditional public forum where he wants to engage in expressive activity. The “rights of the state to limit expressive activity are sharply circumscribed” in traditional public fora such as city parks and streets. Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). A law that restricts access to traditional public fora for expressive activity is subject to “First Amendment scrutiny.” McCullen v. Coakley, 573 U.S. —, —, 134 S.Ct. 2518, 2526, 2529-30, 189 L.Ed.2d 502 (2014). If the restrictions are content-neutral and prescribe the time, place, and manner of expression, they must be narrowly tailored and leave open alternative means of communication. Perry, 460 U.S. at 45, 103 S.Ct. at 954-55. If the restrictions are not content neutral, they must survive strict scrutiny. Id.
We reject Wright‘s contention that Ordinance § 20-30 must be treated as a
In Arcara the state sought to close an adult bookstore under New York‘s Public Health Law because the bookstore doubled as a site of prostitution and illicit sexual acts. Id. at 698-702, 106 S.Ct. at 3173-75. The storeowners argued that the closure “impermissibly burden[ed] [their] First Amendment protected bookselling activities.” Id. at 705, 106 S.Ct. at 3177. But because the illegal аctivity that prompted the closure “manifest[ed] absolutely no element of protected expression,” and the statute did not “inevitably single out bookstores or others engaged in First Amendment protected activities for the imposition of its burden,” the Supreme Court held that the closure did not implicate the First Amendment and as a result was not unconstitutional. Id. at 705, 707, 106 S.Ct. at 3176-77. The Court reasoned that First Amendment scrutiny of a law is not justified just because thе law has an incidental effect of burdening protected speech or expression. Id. at 705-06, 106 S.Ct. at 3177. For example, the Court explained, a “thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement, but we have explicitly rejected a prisoner‘s claim to a prison environment least restrictive of his desire to speak to outsiders.” Id. at 706, 106 S.Ct. at 3177. By thе same token, Wright also could have been incarcerated for his unlawful conduct, see
The Arcara decision provides the proper framework for analyzing Ordinance § 20-30.4 Simply because the trespass warning incidentally burdened Wright‘s First Amendment activities does not mean that Ordinance § 20-30 is subject to First Amendment scrutiny, since “every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities.” Id. at 706, 106 S.Ct. at 3177.5 Like the public health statute in
Another reason that the application of Ordinance § 20-30 to Wright does not violate the First Amendment is that he cannot show that he received the trespass warning because he engaged in conduct with “a significant expressive element” or conduct that was “intimately related to exprеssive conduct protected under the First Amendment.” Arcara, 478 U.S. at 706 & n.3, 106 S.Ct. at 3177 & n.3; see Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5, 104 S.Ct. 3065, 3069 n.5, 82 L.Ed.2d 221 (1984) (“[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies.“). Wright pleaded guilty to resisting an officer without violence or obstruction and was issued a trespass warning as a penalty for that offense. That is undisputed.
There is no evidence in the record that Wright was arrested as a pretext for suppression of speech protected by the First Amendment. See Arcara, 478 U.S. at 707 n.4, 106 S.Ct. at 3178 n.4 (rejecting a claim of pretextual enforcement because there was no evidence in the record that “the closure of [the] bookstore was sought under the public health nuisance statute as a pretext for the suppression of First Amendment [activity].“). Like the illegal sexual activity that prompted the closure of the bookstore in Arcara, Wright‘s arrest for obstruсtion and resisting arrest “manifest[ed] absolutely no element of protected expression.” Id. at 705, 106 S.Ct. at 3176; see also Doe v. City of Lafayette, 377 F.3d 757, 760, 764 (7th Cir. 2004) (en banc) (upholding a ban indefinitely prohibiting a convicted sex offender from every city park because the conduct that drew the ban—entering a park to find children—“contain[ed] no more of an expressive element than the activity at issue in Arcara and therefore deserves no protection under the First Amendment“).
Wright argues that his exclusiоn from Williams Park, of all parks, impermissibly burdened his First Amendment activities. As we have explained, any burden was incidental and that incidental burden was mitigated by the fact that the ordinance allowed him to enter the sidewalks around Williams Park even while his trespass warning was in effect. See
First Amendment scrutiny “has no relevance to [Ordinance § 20-30, which is] directed at imposing sanctions on nonexpressive activity.” Arcara, 478 U.S. at 707, 106 S.Ct. at 3177. Wright‘s arguments to the contrary fail.
B. First Amendment Challenge to Ordinance § 20-30(g)
Wright separately challenges
“A prior restraint on expression exists when the government can deny access to a forum for expression before the expression occurs.” United States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000); see also id. at 1237 (holding that a federal regulation that permitted “public assemblies, meetings, gatherings, demonstrations, parades, and other public expressions of views” in national parks “only if the park superintendent issue[d] a permit in advance of the activity” was a prior restraint) (quotation marks and alteration omitted). Prior restraints generally occur in the context of liсensing or permitting schemes. See, e.g., id.; see also Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 2401, 120 L.Ed.2d 101 (1992) (“[An] ordinance requiring a permit and a fee before authorizing public speaking, parades, or assemblies in ... a traditional public forum is a prior restraint on speech.“) (citations and quotation marks omitted); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 149-51, 89 S.Ct. 935, 937-38, 22 L.Ed.2d 162 (1969) (holding that an ordinance that made it unlawful to organize or hold “any parade or procession or other public demonstration” on city streets without securing a permit from the city commission was a
Because of the discretion it gives to City officials, Wright raises the specter of
III.
The
AFFIRMED.
ALEXANDRA H., Plaintiff-Appellant, v. OXFORD HEALTH INSURANCE INC. FREEDOM ACCESS PLAN, Defendant,
Notes
Wright also argues that Arcara cannot apply here because that case involved a commercial establishment, which is not regulated the way that traditional public fora are. That misses the point. The question is whether First Amendment scrutiny applies to a law imposing a sanction on unlawful conduct when the law also happens to incidentally affect First Amendment activities. That was also the question in Arcara, and the answer the Supreme Court gave was no. The answer is the same here.