O'Connell v. City of New Bern
Decision Date | 10 March 2020 |
Docket Number | NO. 7:18-CV-86-FL,7:18-CV-86-FL |
Court | U.S. District Court — Eastern District of North Carolina |
Parties | Patrick O'CONNELL and Jason Crowley, Plaintiffs, v. CITY OF NEW BERN, NORTH CAROLINA and Todd Conway, in his individual capacity acting as a police officer for the City of New Bern, North Carolina, Defendants. |
Frederick H. Nelson, David J. Markese, American Liberties Institute, Orlando, FL, Keith A. Williams, Law Offices of Keith A. Williams, P.A., Greenville, NC, for Plaintiffs.
Natalia K. Isenberg, Brian Matthew Love, Teague, Campbell, Dennis & Gorham, LLP, Raleigh, NC, for Defendants.
This matter comes before the court on the parties' cross-motions for summary judgment. (DE 34, 37). The issues raised have been fully briefed, and in this posture are ripe for ruling. For the reasons that follow, defendants' motion for summary judgment is granted in part and denied in part, and plaintiffs' motion for summary judgment is denied.
Plaintiffs initiated this action on May 25, 2018, pursuant to 42 U.S.C. § 1983. Plaintiffs claim defendants violated their rights under the First and Fourteenth Amendments to the United States Constitution.1 Plaintiffs moved for preliminary injunction on July 12, 2018, asking the court to enjoin enforcement of defendant City of New Bern's ("New Bern") picketing ordinance. See New Bern, N.C., Code of Ordinances ("Code") § 66-84(a), (b), and (d) (2019).2 The court denied the motion on December 10, 2018, holding that, based on the record before it, plaintiffs lacked standing to challenge § 66-84(b), and failed to show a likelihood of success on the merits as to their constitutional challenges of § 66-84(a) or (d).
After an uneventful period of discovery, the parties filed the instant motions on August 30, 2019. The parties collectively rely upon their own testimony;3 the testimony of Brenda Blanco ("Blanco"), defendant New Bern's City Clerk; Mark Stephens ("Stephens"), defendant New Bern's City Manager; and Toussaint Summers, Jr. ("Summers"), defendant New Bern's Chief of Police; a map of Mumfest drawn by plaintiff Patrick O'Connell ("O'Connell"); manually filed audio recordings labeled "VN520367," "VN520317," "151010_001," and "Mumfest," together with transcriptions; and manually filed video recordings marked "MAH02855," "MAH02858," "MAH02860," "MAH02861," "MAH02862," "MAH02863," "MAH02867," and "MAH02870."
The undisputed facts may be summarized as follows. Mumfest is an annual fall festival held for the last 37 years in defendant New Bern's historic downtown. (Stephens Aff. (DE 22-2) ¶ 4). The festival is open to the public free of charge, and Mumfest is not an expression of a particular message. (Id.; Conway Dep. (DE 36-3) 53:23–54:10). The public is invited to enjoy a variety of entertainment, attractions, exhibits, and food in defendant New Bern's historic downtown and along its waterfront. (Stephens Aff. (DE 22-2) ¶ 4). Most of the attractions, displays, exhibits, and vendors are located on defendant New Bern's sidewalks and streets. (Id.; Conway Dep. (DE 36-3) 54:11–22; O'Connell Decl. (DE 39) ¶¶ 6, 19; Crowley Decl. (DE 39) ¶ 6).
In 2015 and 2017, an estimated 100,000 people attended Mumfest each year. (Id. ¶ 6; Summers Aff. (DE 22-3) ¶ 4). During the festival, defendant New Bern's streets, sidewalks and public areas were densely crowded. (Stephens Aff. (DE 22-2) ¶ 6; Summers Aff. (DE 22-3) ¶ 5). Because of the small space in which Mumfest occurs relative to the size of the crowd, defendant New Bern has real and significant interests in maintaining public safety, crowd control, the flow of pedestrian and vehicular traffic, and access to buildings abutting public sidewalks and driveways. (Stephens Aff. (DE 22-2) ¶ 6; Summers Aff. (DE 22-3) ¶ 5).
Plaintiffs are individuals acting to spread awareness of their views regarding religious, political, and social topics. (O'Connell Decl. (DE 39) ¶¶ 3, 4; Crowley Decl. (DE 39) ¶¶ 3, 4). Specifically, plaintiffs' message is one of hope and salvation that Christianity offers. (O'Connell Decl. (DE 39) ¶ 25; Crowley Decl. (DE 39) ¶ 19). Plaintiffs share their faith in various ways, including distributing free literature, carrying portable signs or a replica of the cross of Christ's crucifixion, recording public events for commentary and distribution, and engaging others in respectful, one-on-one discussions about Jesus Christ and the Christian faith. (O'Connell Decl. (DE 39) ¶¶ 30–33; Crowley Decl. (DE 39) ¶¶ 17–20). In 2015 and 2017, plaintiffs attended Mumfest for the purpose of preaching the Gospel to festival attendees. (See O'Connell Decl. (DE 39) ¶ 35; Crowley Decl. (DE 39) ¶ 24).
Defendant New Bern's local ordinances set forth conditions for picketing and definitions regarding the same, as follows:
Code §§ 66-81, 66-84 ; . In addition to defendant New Bern's picketing ordinance, the Code also includes a noise ordinance, which in pertinent part provides:
In 2015, several of defendant New Bern's police officers approached plaintiffs and their group when they arrived at Mumfest and told them that they could not bring their nine-foot cross into the festival because it was taller than 40 inches and more than three-quarter inches in diameter. (MAH02855 at 00:00–00:32; O'Connell Dep. (DE 36-1) 18:18–25; Crowley Dep. (DE 36-2) 10:16–23; see Pl. Opp. Statement of Facts (DE 50) ¶ 9).4 Plaintiff O'Connell asked to talk to the officer's supervisor. (MAH02855 at 00:40–00:52; O'Connell Dep. (DE 36-1) 18:23–19:1). Defendant Conway, who was supervisor at that time, reiterated the officers' point, telling plaintiff O'Connell that he could not bring the cross into the event because it was taller than 40 inches and more than three-quarter inches in diameter.5 (Conway Dep. (DE 36-3) 74:8–18, 95:23–96:12). Plaintiff O'Connell nonetheless attempted to enter the...
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