Brazos Valley Coalition for Life v. City of Bryan
| Decision Date | 15 August 2005 |
| Docket Number | No. 04-20201.,04-20201. |
| Citation | 421 F.3d 314 |
| Parties | BRAZOS VALLEY COALITION FOR LIFE, INC., a Texas not-for-profit corporation; Donald Parsons; Ismael Escobar; Janice Eoff; Renee Linder; Rosalinda Maldonado; Jim Donahue, Plaintiffs-Appellants, v. The CITY OF BRYAN, TEXAS, a public body municipal corporation of the State of Texas, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frederick Herbert Nelson (argued), American Liberties Institute, Orlando, FL, for Plaintiffs-Appellants.
Patrick C. Bernal, Lowell Frank Denton (argued), Ryan Scott Henry, Denton, Navarro, Rocha & Bernal, San Antonio, TX, for Defendant-Appellee.
Appeals from the United States District Court for the Southern District of Texas.
Before GARWOOD, GARZA and BENAVIDES, Circuit Judges.
Appellants Brazos Valley Coalition for Life, Incorporated, Donald Parsons, Janice Eoff, Jim Donahue, Ismael Escobar, Renee Linder, and Rosalinda Maldonado brought suit against appellee City of Bryan, Texas seeking preliminary and permanent injunctive relief, a declaratory judgment, and damages on their allegations that the City's Sign Code is, inter alia, unconstitutional under the First Amendment. The district court granted summary judgment to the City and we affirm.
Brazos Valley Coalition for Life, Incorporated (Coalition for Life) is a Texas not-for-profit corporation formed in 1998 that is dedicated to advancing its members' belief that life is sacred from conception forward. The individual appellants also share this belief. They express their conviction that abortion is murder by participating in organized protests at Planned Parenthood in Bryan, Texas where abortions are regularly performed. These protests have in the past consisted of, among other things, picketing with handheld signs and placing signs and flags in the "grassy strip" between the street and the sidewalk in front of Planned Parenthood.
The City has a comprehensive Sign Code to regulate where and how signs are displayed in Bryan, including public rights-of-way. The first version of the Sign Code relevant to this case is Ordinance 999, which was enacted on May 1, 1996. Among its many rules, Ordinance 999 declared it "unlawful for any person to erect, place, or maintain a sign in the City of Bryan" within a public right-of-way. Ordinance 999 § 22-3 & 4. A sign is defined as:
"any device, structure, fixture, or placard using graphics, symbols, and/or written copy designed specifically for the purpose of advertising or identifying any person, persons, political party, event, establishment, product, goods, or services."1
Though contentious discussions with the City over the scope of protests at Planned Parenthood began at least as early as 2000, it is enough for our purposes to begin with July 2002 when City police officers told protesters that they could not place signs in the public right-of-way.2 The City, in correspondence between it and certain appellants in August 2002, took the position that the Sign Code forbade any sign that touched the ground, even a sign that was resting on the ground but being propped up by a protestor.3 This position eventually was that even resting a handheld sign on the ground was prohibited. Despite several police visits to Planned Parenthood no citations were ever issued, no one was ever arrested, there is no allegation of police use or threatened use of force, and the only signs the police ever took were those lying on the ground unclaimed and thus deemed abandoned.
Unable to reach a compromise with the City, appellants filed their original nine-count complaint on November 21, 2002, in which they alleged violations of (1) First Amendment rights of speech and assembly; (2) First Amendment right of free exercise of religion; (3) Fifth and Fourteenth Amendment rights of due process; (4) Fourteenth Amendment right of equal protection of the law; (5) the right under the Texas constitution to equality; (6) the right under the Texas constitution to freedom of worship; (7) the right under the Texas constitution to freedom of speech; (8) the Texas Religious Freedom Act, TEX. CIV. PRAC. & REM.CODE ANN. §§ 100.001-012; and (9) the City's duty to supervise its employees non-negligently. Appellants sought preliminary and permanent injunctive relief, declaratory judgment, and damages.
As the lawsuit proceeded, appellants and the City continued to discuss how to remedy the asserted defects in the Sign Code. Appellants did not dispute that the City could constitutionally ban the placement of signs in the public right-of-way. Rather, they contended that exceptions to the Sign Code's prohibition on certain kinds of signs constituted impermissible viewpoint discrimination, thus rendering the Sign Code unconstitutional as a whole.
On August 12, 2003, the Bryan City Council gave a first reading to Ordinance 1428 which, among other changes, would revise the Sign Code such that the placement of all signs (other than hand held signs) in the public right-of-way, regardless of their content, would be prohibited. See Ordinance 1428 § 22-4(8). This proposal, however, apparently caused some consternation in the community because on its face it banned placing even an American flag in the public right-of-way and, were it to be enacted, would render unlawful a traditional Labor Day fundraiser by local boy scouts in which they put up an American flag in the public right-of-way in front of a donor's property.4
The City Council unanimously passed Ordinance 1428 on August 30, 2003, but at the same time also passed Ordinance 1431. This second ordinance preserved 1428's prohibition on signs (other than hand held) in the right-of-way, but carved out an exception for "flags":
"The owner of property abutting a public right-of-way may place or consent to the placement of not more than one flag, attached to a single free-standing pole, in the public right-of-way for each 10 linear feet of frontage if placed and maintained in a manner that does not endanger public safety."
Ordinance 1431 § 22-4(8)(a). Ordinance 1431 also included the following definition of "flag": "[a] piece of fabric that contains colors, patterns, symbols, or words that convey a non-commercial message." Id. at § 22-2. By enacting Ordinances 1428 and 1431 simultaneously, the City hoped it had satisfactorily balanced its constitutional obligation to preserve content neutrality with the public's desire to be able to freely display the American flag over Labor Day in the public rights-of-way.
Appellants, however, were not satisfied. On September 18, 2003, they filed an amended complaint which, in addition to restating the causes of action in the original complaint verbatim, recited in its statement of facts that Ordinances 1428 and 1431 allow a property owner to decide whether a flag will be permitted in the public right-of-way abutting his or her property. The amended complaint also stated that the City implicitly retained the authority under the Sign Code to determine at its own discretion whether a flag is "commercial" and therefore prohibited.
On October 14, 2003, appellants filed a motion for summary judgment on all claims. However, before the district court ruled on this motion, the City comprehensively revised its Sign Code on October 30, 2003, by enacting Ordinance 1443. Whereas the public right-of-way had only been a peripheral detail in the preceding version of the Sign Code, Ordinance 1443 dedicated several pages solely to that matter. Ordinance 1443 preserved the general ban on placing signs (other than hand held signs; see note 3, supra) in the public right-of-way, but excepted therefrom government signs, temporary safety signs, and:
"One (1) flag attached to a single free-standing pole, may be placed in the unimproved portion [i.e. `grassy strip'] of the public right of way for every 10 linear feet of frontage, if placed by the owner of the property abutting the public right of way or with the consent of said owner."
Ordinance 1443 § 24-60(B)(1)-(3). The definition of flag also remained the same.
Ordinance 1443 also introduced a detailed procedure for determining whether a flag placed in the public right-of-way pursuant to section 24-60(B)(3) is commercial or non-commercial. Under Ordinance 1443, a flag is presumptively non-commercial and the burden, both in terms of proof and expense, is entirely on the City to establish otherwise. See generally id. at § 22-62.5
On November 10, 2003, the City filed its own motion for summary judgment, arguing, inter alia, that Ordinance 1443 mooted appellants' prospective claims. The City also sought, and in December 2003 was granted, a protective order barring further discovery. Following a hearing on the cross-motions for summary judgment, the district court, on January 30, 2004, granted summary judgment to the City. The district court also eventually awarded costs in the amount of $5,600.40, but denied attorney's fees.
Appellants appeal both the judgment, the discovery ruling, and the award of costs.
A grant of summary judgment is reviewed de novo under the same standard applied by the district court. Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002).
Though it did not specifically address the issue of damages in its summary judgment order, the district court implicitly found appellants' claims for damages to be without merit. We concur. As noted above, the record contains no evidence that any of appellants (or their members) were ever cited, arrested, or subjected to actual or threatened physical force. To the extent that appellants pleaded damages on account of sign confiscation, there is no summary judgment evidence of any confiscation.6
We confine our consideration to those specific challenges to the Sign Code which appel...
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