Reynolds v. Middleton

• Decision Date: 24 February 2015
• Docket Number: No. 13–2389.,13–2389.
• Citation: 779 F.3d 222
• Parties: Robert S. REYNOLDS, Plaintiff–Appellant, v. Douglas A. MIDDLETON, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

779 F.3d 222

Robert S. REYNOLDS, Plaintiff–Appellant,

v.Douglas A. MIDDLETON, Defendant–Appellee.

No. 13–2389.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2014.

Decided: Feb. 24, 2015.

ARGUED:Brian Timothy Burgess, Goodwin Procter LLP, Washington, D.C., for Appellant. Andrew Ramsey Newby, Office of the County Attorney, Henrico, VA, for Appellee. ON BRIEF:William M. Jay, Washington, D.C., Kevin P. Martin, Goodwin Procter LLP, Boston, MA, for Appellant. Joseph P. Rapisarda, Jr., Lee Ann Anderson, County of Henrico, Henrico, VA, for Appellee.

Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and DAVIS, Senior Circuit Judge.

Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge DIAZ and Senior Judge DAVIS joined.

TRAXLER, Chief Judge:

Robert Reynolds is homeless and supports himself by soliciting donations in Henrico County, Virginia. Reynolds brought an action raising First Amendment challenges to a Henrico County ordinance that prohibits solicitation within County roadways. The district court granted summary judgment in favor of the County, and Reynolds appeals. For the reasons that follow, we vacate the grant of summary judgment and remand for further proceedings.

I.

Prior to 2012, Henrico County had an ordinance that prohibited those “standing” in County roadways, which the ordinance defined to include the medians, from distributing handbills, soliciting contributions, or selling merchandise to car drivers or passengers. Roadway solicitors got around the ordinance by soliciting funds while sitting in the medians.

Police Chief Douglas Middleton, the named defendant, urged the Henrico County Board of Supervisors to consider amending the ordinance to prohibit all roadway solicitation while standing or sitting. At a public hearing on the issue, Middleton stated that the number of people soliciting while sitting in medians had increased “[i]n the past few years and particularly the current year,” J.A. 63, and that this increase had led to an increased number of complaints from citizens. Middleton explained that he believed soliciting from the median was dangerous to the solicitors and to drivers and that prohibiting median-solicitation would make the roads safer. Middleton stated that “as chief of police I cannot ignore the increasingly present danger that the current activities are creating, [and] I would rather proceed to avoid a tragedy, and I am responding to that in a proactive manner as opposed to being reactive.” J.A. 64.

Middleton did not consult traffic-safety or other experts before seeking the changes to the ordinance, but based his proposal on his opinion that it is unsafe to solicit “in the highway,” an opinion that he based on his “personal observations, the credible reports of other law-enforcement officers and citizens, and [his] experience as a law-enforcement officer for over 40 years.” J.A. 60. Middleton did not give any specific examples of accidents or other problems caused by median-solicitors in his deposition testimony or in his statements at the public hearing.

The County Attorney's Office prepared a report addressing solicitation on County highways. The report stated that there had been an “increased presence of [roadway solicitors] in County highways, especiallyin the medians of numerous intersections in the West End of the County,” J.A. 29, and that “[n]umerous complaints have been received from County citizens over the past several months,” J.A. 30. According to the report, police received “97 calls for service concerning panhandling” in 2011 and received 93 such calls in the first 8 months of 2012. J.A. 31. There is no other empirical evidence in the record of actual problems caused by panhandling or soliciting from medians.

The Board of Supervisors agreed with Middleton and voted to amend the ordinance. The amended version of the ordinance (the “Amended Ordinance”) provides as follows:

Sec. 22–195. Distributing handbills, soliciting contributions or selling merchandise or services in highway.

(a) It shall be unlawful for any person while in the highway to:

(1) Distribute handbills, leaflets, bulletins, literature, advertisements or similar material to the drivers of motor vehicles or passengers therein on highways located within the county.

(2) Solicit contributions of any nature from the drivers of motor vehicles or passengers therein on highways located within the county.

(3) Sell or attempt to sell merchandise or services to the drivers of motor vehicles or passengers therein on highways located within in the county.

(b) For purposes of this section, the term “highway” means the entire width of a road or street that is improved, designed, or ordinarily used for vehicular travel and the shoulder, the median, and the area between the travel lane and the back of the curb.

J.A. 16. Given the definition of “highway,” the Amended Ordinance prohibits a homeless person from sitting (or standing) in a median with a sign asking for donations or offering to work in exchange for food, but it permits, for example, campaign workers with signs urging drivers to vote for their candidate to gather in the medians. Solicitation and other activities prohibited on the highways and medians remain permissible on County sidewalks, which are not included in the definition of “highway.”

Acting pro se, Reynolds brought this action challenging the Amended Ordinance on First Amendment grounds. Reynolds and the County cross-moved for summary judgment. The district court denied Reynolds' motion and granted the County's. The court recognized that streets and medians are traditional public forums, but the court nonetheless upheld the Amended Ordinance as a content-neutral and narrowly tailored time, place, and manner restriction on speech. This appeal followed.

II.

There is no question that panhandling and solicitation of charitable contributions are protected speech. See Clatterbuck v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir.2013). There is likewise no question that public streets and medians qualify as “traditional public forum [s].” Id. at 555; see Warren v. Fairfax Cnty., 196 F.3d 186, 196 (4th Cir.1999) (en banc) (“Median strips, like sidewalks, are integral parts of the public thoroughfares that constitute the traditional public fora.”).

The government's power to regulate speech in a traditional public forum is “limited, though not foreclosed.” Clatterbuck, 708 F.3d at 555. Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny—that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Id.; see Ross v. Early, 746 F.3d 546, 552–53 (4th Cir.), cert. denied, ––– U.S. ––––, 135 S.Ct. 183, 190 L.Ed.2d 129 (2014). A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government's legitimate interests.” McCullen v. Coakley, ––– U.S. ––––, 134 S.Ct. 2518, 2535, 189 L.Ed.2d 502 (2014) (internal quotation marks omitted). To be valid, the regulation “need not be the least restrictive or least intrusive means of serving the government's interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Id. (internal quotation marks omitted).

Reynolds, now represented by counsel, challenges the district court's decision upholding the Amended Ordinance. Reynolds argues that the County bears the burden of proof and that the County's evidence was insufficient to establish that the Amended Ordinance is narrowly tailored or that it leaves open ample alternative channels of communication.¹

III.

We begin with the burden of proof. “[W]here a plaintiff claims suppression of speech under the First Amendment, the plaintiff bears the initial burden of proving that speech was restricted by the governmental action in question.” Lim v. City of Long Beach, 217 F.3d 1050, 1054 n. 4 (9th Cir.2000); see American Legion Post 7 v. City of Durham, 239 F.3d 601, 606 (4th Cir.2001) (threshold determination triggering application of First Amendment scrutiny is whether challenged regulation burdens speech). After the plaintiff makes his initial showing, the burden then falls on the government to prove the constitutionality of the speech restriction. See McCullen, 134 S.Ct. at 2540 (“To meet the requirement of narrow tailoring, the government must demonstrate [that the speech restriction meets the relevant requirements].” (emphasis added)); see also Edenfield v. Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (“It is well established that the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.” (internal quotation marks and alteration omitted)).

Here, Reynolds made the necessary threshold showing. As discussed, solicitation of charitable contributions is speech, and Reynolds alleged in his verified complaint that the Amended Ordinance inhibits his ability to collect donations by requiring him to move to locations where it is more difficult for drivers to make contributions.²See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991) (verified complaint “is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge”). The County was therefore obligated to prove that the Amended Ordinance is narrowly tailored to further a significant government interest and that it leaves open ample alternative channels of communication.

The more difficult issue—and the issue on which this appeal turns—is determining precisely what the County must present in order to carry its burden of proof. The County contends that intermediate scrutiny “does not always require an evidentiary showing,” ...