Reyes v. City of Lynchburg

MICHAEL, Lynchburg.2 Court Before WIDENER HAMILTON, Senior Judges, and Circuit “[i]t provided parade ordinance Judge. Circuit person conduct unlawful for shall ... on parade in a participate a written Judge opinion. streets, ... which by published sidewalks Affirmed accordance opinion, issued majority not been has wrote WIDENER article.” provisions HAMILTON Judge which Senior X, § 25-374.1 Va., art. Code Lynchburg, wrote Judge MICHAEL concurred. 1998). February On March (repealed dissenting opinion. constitutionality challenged the affirmed, Reyes City’s 2. being judgment 1. The court, circuit before the parade ordinance is moot. cross-appeal dismissed the issue. did not address which Reyes process rights and Keith Tucci filed a Fourteenth Amendment due pursuant complaint granted summary the district court to the judgment challenging constitutionality City. face parade ordinance on its and as We de review novo district court’s applied seeking declaratory grant summary judgment City, injunction prohibiting relief and an viewing light the evidence in the most enforcing parade party. to the nonmoving favorable Shaw future. Tucci al Stroud, Cir.1994). protest leged they planned another Summary judgment appropriate when arrest, feared criminal civil but and/or genuine there no issue of material fact prosecution and penalties pa under the moving party judg- and the is entitled to thereby rade ordinance and were “de Corp. ment a matter of law. as Celotex terred and chilled the exercise of their Catrett, 317, 322, 477 U.S. 106 S.Ct. rights.” fundamental For constitutional (1986). af- Although L.Ed.2d 265 Reyes damages, claimed: “Award to John firm the district to grant court’s decision Reyes damages....” nominal A.18. On judgment summary City, to the we do so 24, 1998, June the district court found that upon than reasoning different relied repealed parade the City because ordi the district court. & Exch. Securities 10, 1998, nance on March the action for 80, 88, Corp., v. Chenery Comm’n declaratory was relief moot.3 The court 63 S.Ct. 87 L.Ed. 626 action, Tucci a party dismissed o the City’s but denied the motion to dismiss as II. Reyes, reasoning that Reyes’s Reyes following asserts the issues in this claim for damages created a live 1) appeal: parade the City’s ordinance is controversy. Tucci is not party to this facially it unconstitutional because lacks appeal. adequate procedural safeguards and is parties The filed for cross-motions sum- 2) overbroad, parade ordinance is un- mary judgment. hearing, After a the dis- 3) him, applied constitutional as granted trict court the City’s motion. Due upon court erred in relying affidavits of prior to the court’s ruling that the case City City officials. The appeals cross conduct, moot was as to future the court finding parade permit court’s that the found that a challenge parade facial to the procedurally defective and asks this court ordinance was moot as well. The court either grant to affirm the district court’s Reyes’s entertained claim parade that the summary judgment the City or to dis- ordinance was unconstitutional as applied miss the case as moot. to him and parade found ordi- Despite nance was defective.4 this finding, We first address whether City the court held that the not did violate district properly court refused examine Reyes’s First Amendment rights Reyes’s or challenge pa- his overbreadth to the protest Tucci his announced intention it reenacting Tucci that had no intention of high public school on March parade ordinance. Lynchburg’s City Attorney told Tucci and Reyes City that the and the Commonwealth’s parade 4. The court found that ordinance Attorney would enforce not the ordinance un- provide specific did not time frame for the City Thereafter, til the Council reviewed it. parade ap- permit decisionmaker to consider City repealed altogether. plications. Additionally, reassured challenge considered court district that the determining upon ordinance rade applied to 24, 1998, ordinance parade June On was moot. challenge speci- provide not moot as it did found case ruled that the court upon ordi to act parade chief of for the fied time application future it and repealed permit parade had application nance because one. We it a similar defective not to reenact found the promised re that the court safe- procedural the district adequate agree provide not did now, if it cannot parade safeguards, such pealed Without guards. constitution did, any amount reach posed ever that the ordinance court determined question The conduct.5 free ally protected restraining impermissibly danger of case a live present overbreadth rights. no There is court. for this controversy pro- question parade expectation reasonable part: in pertinent vided Arizonans See the ordinance. will reenact (a) police, designee, chief of Arizona, 520 U.S. English Official proposed if the issue the shall picketing will assemblage or Communications, parade, (1997), Telco see welfare, health, or safe- endanger Carbaugh, 885 Inc. v. following criteria applying the ty, Cir.1989). that: finding as other next address We time, duration, and size (1) route the parade ordi repealed the about sertions not unreason- ... will parade the of ac § 1983 for his grounds the nance orderly the safe interrupt ably matter, note that initial As an tion. traffic; ... movement of the damages from nominal sought damages Nominal § 1983. City under ... is not of such (2) parade if a case in a 1983 available may be diversion require that it will nature right an absolute deprived plaintiff or fire police number of great so injury. See an actual suffer yet did the line properly police to personnel 247, 266, 98 435 U.S. Piphus, Carey contiguous in the areas movement (1978) (holding 1042, 252 L.Ed.2d 55 S.Ct. impair the normal so as thereto process is due to procedural that the right the remainder protection of the deprivation making the absolute [CJity; damages with for right actionable for (3) provided has applicant Reyes claims injury). actual proof of out con- sufficient of monitors services Amendment his First City violated parade orderly conduct trol Fourteenth speech and his free right permit; such conformity with ... by apply process rights due Amendment ... will parade (4) of the conduct ordinance, he asserts which parade ing the proper unduly interfere with him.6 unconstitutional, against (1990) opin- (plurality 596, 603 L.Ed.2d 107 aof facial invalidation note that We also J., (Scalia, J.) ion) (O'Connor, 261 concur- & medicine,” "strong overbreadth law dissenting part). 613-14, part and ring in Oklahoma, 413 U.S. Broadrick v. (1973), 830 93 S.Ct. to refer to considered Reyes must be promotes law unless the generally disfavored ordi- prosecution indictment giving discre unbridled licensing scheme apply attempted to FW/PBS, he never nance Inc. to the decisionmaker. tion the ordinance. required under permit as Dallas, 110 S.Ct. U.S. police of, fire and protection or ambu- mits as a traditional exercise of by control to, lance service the remainder of the the local government. Cox v. New Hamp [C]ity, or unreasonably disrupt other shire, 569, 574, protection services and normal- L.Ed. 1049 These ordinances are provided ly [C]ity; generally time, treated as place, and man (5) parade ... will not interfere ner upheld restrictions and are courts if parade with another ... for which a they neutral, are content serve a substan permit has granted. been governmental interest, tial open and leave (b) If the chief police, or his designee, alternative avenues of communication. disapproves application, he FW/PBS, Inc., shall See (White, 493 U.S. at 245 mail to the applicant a notice J., of his concurring in part and dissenting action, stating (citations reasons for his denial omitted). part) A court in permit. validate a permit if, despite scheme being (c) Nothing in neutral, this article content shall the scheme vests unbri police, the chief of or his designee, dled discretion in the decision-maker. See deny a permit upon based political, so- v. Birmingham, Shuttlesworth cial, or religious grounds 147, 150-52, or reasons or S.Ct. L.Ed.2d 162 based upon (1969) the content of the views (striking down a pa content-based expressed. ordinance). rade The district court found that although parade Va., Lynchburg, ordinance did not X, § Code art. 25-374.3 give the (repealed 1998) chief of March unbridled (emphasis discre add- ed). tion, it did not contain procedural all of the safeguards required to constitute per The other sections of parade ordi- missible prior noted, restraint. As nance germane the analysis are: court interpreted the ordinance as failing person desiring to conduct a parade must provide to specific time frame which in make an application to the police chief of the police, chief of or his designee, should 48 prior hours parade, § 25- permit consider application and found 374.2(a); police the chief of has the author- that the of lack such time frame violated ity to consider applications filed less than requirement set forth in Freedman 48 prior hours parade where the Maryland, 51, 58-60, 85 applicant S.Ct. good cause, shows 25-374.2(c); § 734, (1965),7 FW/PBS, applicant an permit whose disap- Inc. See also 11126 Baltimore proved Blvd. v. may appeal to the City Manager Prince George’s County, 58 F.3d hours, within 48 Manager (4th Cir.) (en banc), denied, cert. must act on the appeal within five working days after its L.Ed.2d 492 receipt, § 25-374.7. (1995). A city, such as Lynchburg,

justified in forth setting regulations and At this we point emphasize that there is ordinances requiring parade advance per- no claim this in case of content discrimina- Supreme Court in Freedman judicial identified review of that decision must be avail- requirements three necessary to able; ensure a 3) the censor must bear the burden prompt permits decision for or licenses for going of suppress court to 1) First Amendment any activities: restraint must proof bear burden of once in court. prior judicial review imposed can be FW/PBS, Inc., 493 U.S. at 227 (citing Freed- specified for a period during brief which sta- man, 58-60). 380 U.S. at quo maintained; tus must 2) expeditious Burk’s, p. costs.” with of writ is awarded non-issuance or the issuance in tion Supreme Virginia Court of that 325. That emphasize And permits. parade inwrit to award the previously as does not hesitate question, in official, police against local original proceeding chief of noted, provides that Pre- upon political, of the South Wise Registrar even the based “deny reasons or in County, or is demonstrated social, grounds cinct in religious Wise ex- Skeen, the views of 165 Va. 186 S.E. Kennedy upon contents based question serious quite So pressed.” such many the courts confronts

which likely Virginia Although it is that here. does not exist cases prompt relief give courts would in this case Also, is made question no satisfy the Freedman enough manner required proof any burden analysis no there has been requirement, permit, parade of a the denial support as requirements time such this case of requirement. third Freedman v. Prince in 11126 Baltimore was made So we ex- County Maryland. George’s that the available court held The district that opinion question. press no review of judicial procedures Virginia permits complied parade the denial we will purposes analysis, of our For the requirement, Freedman the second assume, correct the deciding, to be without review. judicial expeditious available court, the ordi- the district decision of Virginia, it is true While sufficiently re- does not nance in question 15.2-1404, “[e]very locali- Code Virginia the chief of the time in which strict in its own name be sued may sue or ty deny parade permit; grant must with its connected all relation to matters analysis, we will purposes of our for the litigation duties,” the door for opening thus assume, deciding, that without also cases, impor- more it is of even in such prompt judicial requirement Freedman remedy of extraordinary tance complied with. not been review has in such cases mandamus is available courts, are which this, circuit in the both III. jurisdiction, and general courts us to the the above leads All Virginia, Supreme Court even remaining only question the position that Virgi- See jurisdiction. original a court of Reyes, under is whether not in the case See §§ 17.1-309. nia 17.1-513 Code of ac (1952) 1983, a civil cause may prosecute § Practice Pleading and Burk’s City the damages against for nominal in tion by highest the court § Mandamus 199. un indictment, acquittal trial and for his and efficient certainly plain is State was later ordinance which parade the no der speedy, for probably “[i]f remedy, and hold that We unconstitutional.8 a held to be petition states made defense writ, he not. peremptory for the proper case violating claim, the ordinance. not-guilly of found Reyes claims § 1983 in his

8. Included Reyes in- not-guilty, was being found right After to free First Amendment that his 3, parade 1998 that March formed on sufficiently to constitute chilled had been against him case, not be enforced would facts of this Under violation. repealed on was The ordinance the future. Reyes was indict- in claim. merit to find no that he Reyes asserts pa- March unconstitutional ed under the assumed anti-abortion a March 13 planned attend the initial weeks after rade three which chilled warned, prosecution, arrested, protest, feared or ha- but protest; he in- without protest occurred speech. The Ultimately, he the scene. rassed on position The succinctly stat- Richardsons, meantime, had ed in his brief: filed a § suit under 42 U.S.C. district court against City and certain City enacted and maintained the officials, claiming to have suffered Ordinance. It remained exclusively humiliation, distress, emotional physical City’s

within prerogative to amend harm, of earnings, legal loss expenses repeal Ordinance, and the City as a result of their defense against chose neither until after had been prosecution. They $250,000 sought indicted and criminally prosecuted under damages. The granted district court sum- Such Ordinance. inaction mary judgment because it context of a facially unconstitutional Or- found no deprivation Constitutional suffi- dinance renders the City liable. Br.26. cient support § suit. This follow the We case of Richardson City holding by was affirmed the Sixth Circuit. Cir.1990), Euclid, South 904 F.2d 1050 That court question stated the as follows: denied, rt. 498 U.S. ce We next examine whether the Richard- 691, 112 (1991), a case essen sons, having prosecuted been under an tially on all fours with the case at hand. ordinance, unconstitutional suffered a case, In that Richardson, Ronnie and Diva deprivation constitutional sufficient wife, husband and moved to South Euclid support a claim under 42 U.S.C. in May October, In the City § 1983.... passed South Euclid an ordinance which The Richardsons claimed loss liber-

made it own, a misdemeanor to operate, or ty as a interest result of being required to manage a brothel or to invite or entice bear the burden of defending against a another to engage acts of lewdness or criminal prosecution brought an in- under December, sexual conduct. In valid ordinance. 904 F.2d at 1052. The Richardsons were charged with violating court, citing McCollan, Baker v. ordinance, June (1979), S.Ct. L.Ed.2d 433 charges against the Richardsons were dis noted that three-day even detention missed when the Municipal Court of South Baker did not amount deprivation to a Euclid found the ordinance to vague, liberty recognized since overbroad, and unconstitutional on its face police complied had process due under the First and Fourteenth Amend law. Accordingly, Richardson held that ments. The decision of the Municipal the prosecution did deprive Rich- Court was by affirmed the Ohio Court of ardsons liberty interest. “The Appeals and then Supreme Ohio Richardsons were not convicted without Court in 1990. notice and trial. They were charged in facts, cident. denied, Under the we 1032, find this claim 498 U.S. 111 S.Ct. 112 merit, without repealed the ordinance (1991): on L.Ed.2d 681 March 10th could not chill to occur on Freedom from prosecution, criminal [ab- th. March 13 faith, sent Pfister, bad see Dombrowski v. Just importantly, Reyes 479, 480, 380 suffered no U.S. loss 85 S.Ct. 14 from the question (1965),] ordinance in 22 was is not an that interest is —he guilty found not and was assured he protection. would accorded constitutional Where not be prosecuted further followed, under the ordi appropriate procedures are appears It Reyes's nance. that main recognize conten states no interest to be free from is tion freedom from prosecution. criminal defending burdens of against oneself an

As noted in Richardson v. City South Eu prosecution, unsuccessful and neither does of clid, 904 1990), F.2d Cir. Rights. cert. the Bill of F.2d at itself.” process to re- opportunity writing, permitted found no Richardson court 1055. The court, by the vindicated at open in spond and none municipal process, procedural after the of due charges denial of all dismissal unconstitution- claimed here. the ordinance is even found court court held The at 1053. F.2d al.” 904 that concluded The court are essential- facts which that, those under integrity of [concern This case, they Reyes’s in those same as ly the a to us that process] suggests judicial interest any liberty of deprived were prose- persons action for per se cause of held to be was later the ordinance because a law later to be determined cuted under We 1053. 904 F.2d at unconstitutional. rejected be- unconstitutional should agree. enforce- place it would state law cause prose- that argued Richardsons The position precarious ment officials subsequently an ordinance under cution a new to whether having of determine automatically gives invalid to be deemed their enforce- worthy valid of law is § 1983. action under of to cause rise enforce- risking, through ment before akin to the very much argument This ment, the law damages should suffering here and which makes Reyes argument invalid. We think later be deemed above. just his brief quoted have contem- amendment fourteenth apparently that goes argument affairs. plate that state law should itself unconstitutionality of F.2d at 1055. underly- element supply the Constitutional under a valid claim ing the case distinguish to We are unable held there court Richardson at 1054. The Indeed, any if from Richardson. hand on account § 1983 claim no automatic stronger case seem to be thing, this would ordinance. under invalid prosecution only because Piphus, Carey The court relied claimed, damages are 55 L.Ed.2d than convicted acquitted rather procedur- (1978), proposition for the with agree We question. action- may be process in due deficiency al Richardson.9 a claim prosecute such able but that court is of the district judgment the tri- ... convince plaintiff [must] “[t]he accordingly distress actually he suffered fact er of AFFIRMED.10 due procedural denial pending in this appeal was While this intervening the Court decision of 9. The court, the court to file with moved Thomas, dissenting opinion, mentioned response to supplemental materials certain necessity position. The strengthens our pages Six out City's which are: brief supporting argue obtain overbreadth one deposition of pages of a apparently 113 by the dis- conclusion reached reason for the McRorie; the circuit a letter from E. William reasoning of the perfectly the illustrates sent Lynch- court of judge of the circuit Circuit, p. slip quoted, we have which Sixth answer apparent response, and in burg in holdings advocated such adherents, to re- Reyes’s motion dissent, cause amounting to an automatic sentence; copy of a modify his duce action, place law enforce- would state "... 18, 1997 November newspaper dated article position precarious ment officials which respect the demonstration law is a new having to determine case; page out of and one subject of the before worthy their enforcement and valid pages a certain apparently 52 deposition of enforcement, suffering dam- through risking, Bennett, men- W. who Colonel Charles invalid.” law later be deemed ages the should newspaper Bennett article. tioned in said MICHAEL, Circuit Judge, dissenting. ry present deprivation “where no oth- er than that suffered as a result of main- The majority, relying on Richardson v. taining legal a defense is by sustained Euclid, South 904 F.2d 1050 party prosecuted.” at Id. 1051. Because Cir.1990), that Reyes’s concludes claim for the injury alleged in Richardson was sole- damages must fail because he suf- ly that of against defending prosecu- fered no constitutional injury from being tion—an injury of being required to en- indicted prosecuted and under Lynch- gage in the process criminal court burg public —the assembly ordinance. I re- analyzed the claim under the Due Process spectfully disagree. Reyes, unlike the Clause rather than the First Amendment. plaintiffs Richardson, in has alleged a clas- Id. at 1052-53. In due process its analy- sic First injury Amendment by claiming sis, the court reasoned that prosecu- “[t]he that his indictment prosecution tion itself is the process observance of due ordinance chilled the exercise of his Id. accused.” particu- 1053. More constitutional rights speech of free larly, plaintiffs assembly. had Richardson re- Because the City has done ceived process due nothing they because cast doubt on the “were truth of this charged in allegation, writing, permitted opportu- district court erred when it nity respond open court, determined on summary judgment vindicat- that Reyes by ed had not the dismissal suffered of all charges constitutional after the injury. municipal court found the un-

constitutional.” Id. A. This quite case is different. Unlike the plaintiffs in Richardson, Reyes alleges As the majority explains, plaintiffs that because of his indictment prose Richardson sought damages under 42 cution, “[t]he fear of prosecution criminal U.S.C. compensate them for has caused [him] their alleged humiliation, be deterred and chilled emotional dis- tress, physical harm, exercise of [his] loss of fundamental consti earnings, and tutional legal expenses rights,” including that resulted from the First defend- ing prosecution against rights Amendment under an of free later peaceable found to assembly.1 Thus, Reyes unconstitutional. alleges plaintiffs in that Richardson his speech did allege was chilled during peri their speech or od in conduct had which he been chilled or was indicted and prosecut deterred as a result of prosecution, ed under the prior repeal. its fact critical to analysis in that case. The act of defending against a criminal Rather, as the it, Sixth Circuit put prosecution under an unconstitutional ordi question was whether a constitutional inju- may nance not constitute a First is apparently a police official. The defen- alleges, plaintiffs like in Rich- deny dants papers those properly ardson, are defending against prosecution part case, record upon However, itself a injury. constitutional examination, we believe likely it more alleges other constitutional in- not, they are in which event peremptory juries, this is not a depriva- case “where no denial of the usually motion would be in or- tion than other that suffered as a result of caution, der. however, In an abundance of maintaining legal defense is sustained

we grant the motion and papers, consider the party prosecuted.” Richardson, 904 F.2d which, singly none of together, have had at 1051. any bearing on our decision in this case.

459 also notes that majority The 8. note being inhibited But injury.2 Amendment 10, 1998, on March repealed was pros ongoing of an speaking from Reyes that was and thus concludes inju Amendment classic First ais ecution planned in a participating deterred from Traxler, v. Inc. Beigay, Vernon See ry. agree with I 13. Id. on March protest (assum Cir.1986) (4th 1088, 1091 F.2d cannot Reyes observations. both these actually had actions police officers’ that ing before he chilled was speech that his claim suf plaintiff then speech, plaintiffs chilled 1997, 1, or after on December indicted was fact); injury Amendment a First fered 10, March repealed on was the ordinance (11th Cole, F.3d v. Pittman a three-and-a-half- this leaves Yet Judicial Alabama Cir.2001) that (allegation December window between month “self- caused opinion Commission Inquiry Reyes’s com- 10, In March and if plaintiffs, part censorship” 27, 1998, before the February filed plaint, injury Amendment true, First constituted that alleges he repealed, was Tadlock, 21 F.3d v. fact); Sloman has prosecution fear of criminal “[t]he “reasonably (The Cir.1994) jury (9th and chilled deterred to be [him] caused polit [plaintiffs] that have concluded could Amendment his First exercise” motivating awas substantial activity ical assembly. and speech free rights to decisions officer’s] police in [the factor that alleging not Clearly, Reyes him, that warnings a citation issue deter him will prosecution of criminal fear the citation reasons claimed planned protest participating from such and that groundless, warnings were pend- 13, 1998, that the but also for March expres the political chilled conduct de- already has prosecution ing criminal This is group. his [plaintiff] sion of speaking. him and chilled terred liability support predicate adequate “[u]nder concludes majority (em 1983.”) under officer] against [the to” no case, merit find[s] [it] of this facts as he added). prove, Reyes can If phasis First of his exercise that his Reyes’ claim chilled speech was that his alleged, has However, chilled. was rights Amendment indictment his after during period of this the facts about know little what then he repealed, before whether regard case, least with at very at the damages is entitled chilled, comes speech was Reyes’s when Carey Piphus, See least. allegations entirely from Reyes I concede complaint. chilled speech his that because how detail explains allege majority be- months a half three and at during or arrested harassed was not repeal of and the his indictment on November tween protest original scene notice system our Under ordinance. 10, 1997, claim he cannot is not however, specificity great pleading, at 455 ante See was chilled. event of the Richardson approach courts follow alleged constitu adequately 2. Because County See, e.g., Faustin majority. speech, chilled the form of injury in tional Cir. Denver, 947-48 on' require a decision. does not case stand 2001) (First plaintiff "has Amendment holding that adopt Richardson's prosecu on her .damages based ing to sue an un prosecution under against defending damages, which she (including nominal tion does not amount constitutional [bill 3-1 section though "the sought)” even Incidentally, the Rich injury. constitutional was dismissed against Faustin charge posting] vigorous dissent. holding prompted a ardson being prosecuted is not she (Merritt, ... and Richardson, at 1055-58 904 F.2d See time.”). at this 3-1 section not all C.J., appears that dissenting). itAnd required: a complaint need “a contain claim his anti-abortion message.” The plain short and statement of the claim.” court noted that “Reyes previously 8(a). In response Fed.R.Civ.P. Reyes’s protested had in other areas of the City allegation that his been had chilled without much so a warning as from a (as opposed to would be chilled in the police officer.” These observations in are future), City of Lynchburg stated in its sufficient to Reyes’s overcome allegation answer that “it is without or knowledge that his constitutional rights had been information sufficient form a belief as to by chilled the indictment prosecution. the truth” of this allegation. And in its Amendment, The First provides which for motion summary judgment, peaceable freedom of assembly as well as address, did not contest, let alone freedom speech, protects Reyes’s right allegation that he had already suffered a speak from the sidewalk in the chill to his First rights Amendment as a company just friend clearly it result of prosecution. It is of course protects right to stand there and speak true that “a party opposing a properly all Button, alone. See NAACP 371 U.S. supported motion for summary judgment 415, 430, (1963) 83 S.Ct. 9 L.Ed.2d 405 may not upon rest the mere allegations or (“[Tjhere is no longer any doubt that the denials of his pleading.” Anderson v. Lib First and Fourteenth protect Amendments erty Inc., Lobby, 477 U.S. 248, 106 certain forms of orderly group activity.”). (1986) (internal S.Ct. 91 L.Ed.2d 202 Nor is it clear to why me the district court omitted). quotations Nevertheless, when a thought that the fact that Reyes had en defendant has not contested allegation gaged in prior protests without arrest with an affidavit or other evidentiary ma prosecution undermined his claim that his terials, a district court not simply speech was chilled. Because had discount allegation in deciding mo been indicted and was facing criminal tion for summary judgment. See Elbe v. prosecution, a reasonable fact-finder could Indep. Yankton School Dist. No. certainly conclude that at until least March (8th Cir.1983) (For F.2d summary 10, 1998, when the ordinance repealed, judgment purposes, “[ajllegations in a Reyes feared punishment future if he en complaint, which are not contested by gaged in protests. further See Dombrow moving party by affidavit other eviden- ski v. Pfister, 479, 487, tiary materials, true.”); are assumed Gal (1965) (“The 14 L.Ed.2d 22 chilling Tex., van County, Bexar 785 upon effect the exercise of First Amend (5th Cir.1986). rights ment may derive from the fact of court, The district like the majority, con- prosecution, by unaffected pros cluded had failed to show that pects of failure.”). its success or his First Amendment free speech rights sum, were In “sufficiently apart chilled to constitute a whether the majority violation.” But the district is correct adopt court reached holding Richard- son, conclusion on very different grounds summary judgment for the City was than the majority. The district .inappropriate court ac- because Reyes has ade- knowledged “Reyes quately claims alleged a constitutional injury threat of future indictments the form violating of chilled speech. He claims that ordinance chilled speech.” his free the indictment prosecution for his pub- The court went on to say, however, protest lic “has caused [him] to be de- “the ordinance prohibit did not Reyes from terred and chilled” in the exercise of his standing on a sidewalk pro- First Amendment rights. This allegation, himself decision and official’s guide complaint dards ain past tense framed judicial re- subject to effective render it read only be 27, 1998, can February filed Dist., Chicago Park view.” Thomas chilled speech was Reyes’s that to mean 775, 780, 151 316, 122 S.Ct. U.S. 534 Decem- on his indictment after period the (2002). disagree, parties The 783 L.Ed.2d was the ordinance 1997, 1, before ber however, the ordinance whether about City of 10, The on March repealed analyzed determine be must con- or to confront nothing did Lynchburg on a restraint prior it is whether judg- summary allegation test this requirements procedural subject dis- the Accordingly, proceedings. ment 380 Maryland, in Freedman out set summary granted it when erred court trict 85 S.Ct. that ground the City on the judgment recently Supreme Court has (1965). The sup- injury constitutional no was there that explaining question, resolved damages. claim for Reyes’s port “is not that licensing scheme permit but content- censorship subject-matter B. regulation time, and manner place, neutral on rule squarely majority The is not sub- forum” a public the use It ordinance. the Constitutionality of set requirements procedural to “the ject uncon- is ordinance if even that holds Thomas, 122 S.Ct. Freedman.” forth no constitu- stitutional, has suffered that not contend Reyes does 779-80. that sum- I believe Because injury. tional based, re- is content ordinance on inappropriate mary judgment that it is the ordinance confirms view deal I must injury, constitutional issue indicates The ordinance neutral. content un- in fact is the ordinance whether designee with or his chief of that ordi- I conclude proposed constitutional. unless the permit issue shall be- face on its is unconstitutional “endanger nance would conduct narrowly it is by a it is overbroad: clarified safety,” cause as health, welfare govern- Va., the substantial to serve Lynchburg, tailored specific concerns. list 25.374.3(a) (repealed asserted. interests X, § ment art. Code Thomas, 1998). “[n]one As in March appro- to determine job is The first has denying for grounds review- for standard constitutional priate might speaker awhat do to with anything agree parties ordinance. ing the Thus, Thomas, at 779. 122 S.Ct. say.” satisfy must ordinance subject to is not Lynchburg ordinance time, man- place, for a requirements Freed- requirements procedural that the namely, regulation, ner man. nar- content-neutral, be “must must be aside, requirements gov- Freedman a significant to serve rowly tailored uncon is the ordinance open claims interest, leave must ernmental conduct to his applied both for communication.” stitutional alternatives ample Be overbreadth. due to face on its Move- v. Nationalist County, Ga. Forsyth is over- I believe cause ment, 505 U.S. face, address I will not its addition, broad In 120 L.Ed.2d In the challenge.3 applied stan- adequate “contain must time, place, and manner requirements currently stands itas record The factual unclear, example, how regulation. It is the ordi- to determine not sufficient Reyes, protesting were many people Reyes, met the nance, applied as it context, First Amendment Kansas, “an overbroad F.Supp. 1546, (D.Kan. regulation may subject to facial review 1994); Fallon, Jr., Richard H. Making invalidation, though even its applica Overbreadth, Sense 100 Yale L.J. tion in the case under consideration (1991) (“Although point is often be constitutionally unobjectionable.” For of, sight lost First Amendment over- syth, 505 U.S. at 129. A challenge that an breadth doctrine has constitutionally facially permit overbroad is core, mandated involving personal when, ted among things, other “the ordi right of defendants not to be sanctioned sweeps nance broadly, too penalizing a except a constitutionally valid rule substantial amount speech of that is consti law.”). Because question of dam tutionally. protected.” at Id. 130. The ages issue, remains live the City of majority reasons that because the ordi Lynchburg should not able to insulate nance has been repealed, it no longer its ordinance from overbreadth review reaches any amount of constitutionally simply by repealing it. While the City is protected conduct. Accordingly, the ma ordinance, correct that the repealed, now jority concludes that Reyes’s overbreadth will not any protected chill speech in the challenge longer presents no a live case or future, Reyes’s damages requires claim us controversy. I disagree. Reyes in to determine whether it did so in past. dicted under on ordinance December See Comm. the First Amendment v. prosecuted and in the following Campbell, (10th 962 F.2d 1526-27 weeks and months. Reyes alleges that Cir.1992). I Accordingly, will now up take during the time before the ordinance was Reyes’s overbreadth challenge to the ordi repealed, speech was chilled nance. this indictment prosecution. and If the above, As noted the First Amendment ordinance was unconstitutional, Reyes suf requires even per content-neutral fered an injury to his First Amendment mit scheme regulating speech public ain rights regardless of whether the constitu forum be “narrowly tailored to serve a tional infirmity was due to or overbreadth significant governmental interest.” For some deficiency in the application syth, 505 U.S. 130. Narrow tailoring in ordinance to him. injury, This proven, if the First Amendment context does not entitles to nominal damages. Be require government regulate cause us has a live claim for nominal ing “the least restrictive or damages, whether the least intrusive ordinance is uncon means” stitutional, available to goals, either on achieve its its but it face or as applied, prohibit does government remains a live issue. See “regu Massachusetts v. Oakes, lating] expression 491 585-88, U.S. such a manner that a S.Ct. (1989) substantial portion L.Ed.2d 493 (Scalia, J., of the burden on joined as to by Blackmun, speech Part I Brennan, serve to advance its Marshall, Stevens, J.J., goals.” Ward v. concurring in Against Racism, Rock the judgment in part 781, 798-99, U.S. dissenting part) (repeal of statute under which defen Similarly, when an dant was convicted does prevent him ordinance “sweeps too broadly, penalizing from making an overbreadth challenge to a substantial amount speech that is con statute); v. City Leavenworth, stitutionally protected,” Ruff it is unconstitu- they where time, were located in relation place, analysis manner would re- school, or heavy how the pedestrian quire traffic a remand to the district court for fur-

was in this Accordingly, area. applied ther factual development. Cir.2001) gov- (significant Forsyth, 505 to overbreadth. due tional safety of “the include interests ernment at 130. ef- citizens, organized, specifically requires traffic, including fective, flow of and safe picketing, “parade, any planned vehicles”). only question emergency con- rally, gathering, assembly, meeting, narrowly tai- public assemblage or other test these interests. to serve lored or other sidewalks, squares streets, parks, encompasses a its On face 25-374.1(a). The § Code public places.” amount stunningly broad “any “assembly” as defines requires it things, Among other conduct. persons, group or meeting, gathering gathering any planned permit for combination or a vehicles animals, or (or, person than one place of more design purpose, a common having thereof or more indeed, person one one 374(b). “Picketing” Code goal.” 25— 25-374(b)) vehicles, § animals express- of methods “peaceful as is defined but not including goal, or purpose common and social, religious economic, political, ing economic, so expression of to limited may and which public other issues to or other issues cial, religious political, by ... signs use of not include or 25-374, 25-374.1. The §§ Code public. (1) at a specific person one than more about thus covers as written 374(c). The ordi- § Code location.” 25— social preplanned of type every conceivable activities such exempts certain nance playing public place, such activity in a events,” or walk- “jogging “spontaneous (so long as the park dog in the with a fetch Code processions.” “funeral ing,” and meeting friends spontaneous), is not game 25-374.1(b). § dinner, standing corner for a street of ordi- notes, goals City As the holding city sidewalk on a a friend with ordi- face. The on its apparent nance are the School Yes on reading “Vote signs public protect meant nance However, Amend in a First even Levy.”4 by specifically, welfare, safety, health, and not courts look challenge, facial ment not unrea- will any gathering ensuring but challenged ordinance of the the face pedestrian interrupt vehicular sonably authori [government’s] “consider so ordinance, “of a diversion traffic, require in not will constructions tative police person- inter of fire implementation a number” great cluding own its parts in other at 131. protection Forsyth, impair nel as to of it.” pretation claim to monitored not adequately will be City, City of of The orderliness, regulations not interfere will any authoritative to ensure have ordinance, but service, will that construe or ambulance guidelines with application history of its permitted point to previously it does interfere by affidavits ordinance, 374.3(a)(1)—(5). as evidenced These § Code events. 25— permits a list city officials significant from are interests government It is in 1996 and account, and denied and granted take into appropriate City has never clear, example, See contend otherwise. Reyes does game planned for a permit required a Chicago, 243 City MacDonald having a ... com- (a ... animals "group of ordi- whether the wonder is reasonable It alley”), public ... upon any ... purpose mon group of racoons a require nance would person only prohibits through rummage garbage permit to obtain assembly an participating conducting or group would alley. While such in an bins 25-374.1(a). § permit. 25-374(b) Code without ''assembly” under an constitute city park. fetch in a City The argues sanitation, rity, and traffic control at event court, evidence before involving 30,000 the district in- around participants). However, cluding of recently permitted City the list permits has also issued activ- ities, makes it activities such as picket- clear that informational the ordinance was ing relating public applied issues, in a mental health manner that rendered it nar- picketing by the National Association of rowly tailored to serve the interests identi- Carriers, Letter distribution New Tes- fied the ordinance and that left ade- public taments on the sidewalk by a local quate alternative means of communication. chapter Gideons, protests of history of an application, ordinance’s gay discrimination, and engaging “public without regulations authoritative judi- or a ministry.” list does not reveal construction, cial can scope narrow the the exact of all size of these events or purposes ordinance for the of over- activities, but the suggests record that at analysis only breadth “a when wellunder- least some of them quite were small. In- uniformly stood and applied practice has deed, routinely granted permits to developed virtually has the force of a protesters, lone such as one man who judicial construction.” Lakewood planned protest against the United Co., Plain Publ’g Dealer government States at City intersection, 770 n. 100 L.Ed.2d 771 even though protester indicated that in is questionable It all he likelihood would be there himself. City’s implementation of the ordinance was Lewis, Jack an officer in the Lynchburg so well known and uniformly applied as to Department Police responsible for issuing “virtually have judicial force” of con- permits ordinance, under the testified that Nonetheless, struction. even if City’s in opinion people two picketing any in argument about implementation narrow is public place would require permit. a In accepted, the ordinance is still unconstitu- contrast, he indicated people that two tional. walking down street discussing religion could, The City course, require of per a permit. would not need a Officer Lewis mit for some of the activities covered by also that group indicated people of four the ordinance without running afoul of the standing on the sidewalk outside an abor- include, Constitution. These for example, tion clinic declaring their opposition to the the Thousand Man proposed Watch by the practice of abortion would require likewise Coalition of Concerned African American permit under the ordinance. In con- Men and the Walk a Thon proposed by the trast, a group of people four playing horse- March of Dimes. It apparent from their shoes the park would not need permit, very names that these activities would like even if the preplanned. event was Officer ly large involve numbers people of gather Lewis testified that if someone inquired ing public places. Such might permit, events about a he would probably have reasonably be said to pose legitimate person that gov fill out an application and ernment grant recognized approval concerns by the for the activity ordi if there was nance, impact any question such as the that pedestrian proposed activity might fall vehicle traffic potential and the within the ordinance. diver police sion of protection and fire from cer I accept City’s representations, parts tain See, City. e.g., Coalition which supported are by testimony and the the Abolition Marijuana Prohibi for permitted list of activities, of that it does not Atlanta, tion v. City 1301, 1318 219 F.3d apply the permit ordinance to activities (11th Cir.2000) (permit requirements nar such as playing public horseshoes in a park rowly tailored city’s to fit interests in secu- or discussing religion walking while down ordinance, as permit”). The for Still, list of activities the street. narrow- by City, implemented and the issued have been permits which interests legitimate fit the for tailored to ly those activities describing testimony traf- order, flow of the smooth maintaining demon- required would be permits which Rather, actually as fic, both the like. application City’s strates by City interpreted rendering and as implemented close to not come “sweeps broad- officials, too the stated achieve narrowly tailored it amount a substantial of vehicu- interruption ly, penalizing preventing goals pub- constitutionally protected.” traffic, maintaining that is pedestrian lar and I Accordingly, monitor- at 130. adequate order, ensuring Forsyth, 505 lic unconsti- officials. department the ordinance hold that and fire would by police ing out handing quietly tutionally overbroad. picketers peaceful Two sleepy side- on a signs holding leaflets ordinance, imple- even as Because park pose aof the middle walk or nar- clearly fails the City, by mented traffic pedestrian to vehicular no threat test, not address I will tailoring row or no little require public order and toor require- meets additional it and fire officials. attention ample alternatives “leav[ing] open ment Portland, 33 See, Grossman e.g., passing I Id. note communication.” for (ordi- Cir.1994) 1200, 1205-08 F.3d every public covers any organized for permit requiring nance imagine hard to it is place, so park not narrow- in public demonstration alternatives adequate permits interests; ordi- city’s to serve tailored ly City suggests communication. for peaceful groups applied nance was exist insofar adequate alternatives Community eight); as small protesters editor to send letters free Reyes is Turner, 893 Non-Violence Creative himself. on the sidewalk protest toor (CCNV) (D.C.Cir.1990) 1387, 1392 pursue certainly free to Reyes is Although two or requiring (regulation communication, methods of these together speaking people more it can therefore claim that seriously cannot held not of Metro areas above-ground any public speaking groups banish many of tailored; “it is clear that narrowly them to do so. permits for require place, mean- not interfere would these activities hold that I would Accordingly, inter- asserted WMATA’s ingfully with unconstitutional ests.”). City, by because, implemented even as City routine- no moment It is of to serve narrowly tailored not it was benign gatherings permits for ly granted alleged Because City’s interests. procedur- “Both the people. a few only aas result was chilled that his submitting a out filling al hurdle this under prosecution indictment hur- temporal and the application, written ordinance, and because unconstitutional granted to be for the waiting dle this to rebut no effort has made speakers.” potential discourage should summary judgment allegation, Grossman, See granted have been J., (Williams, CCNV, 1396-97 F.2d at § 1983. damages for nominal claim (“WMATA judgment) concurring dissent. respectfully I requirement, a license imposed has is not But outright ban. in- government [No it.... enough save lone requiring justify

terest] would office for go to WMATA’s wearer

button

Case Details

Case Name: Reyes v. City of Lynchburg

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 16, 2002

Citation: 300 F.3d 449

Docket Number: 98-2583, 98-2690

Court Abbreviation: 4th Cir.