Am. Legion Post 7of Durham v. City of Durham

Decision Date01 November 2000
Docket NumberNo. 00-1500,00-1500
Parties(4th Cir. 2001) AMERICAN LEGION POST 7 OF DURHAM, NORTH CAROLINA, Plaintiff-Appellant, v. CITY OF DURHAM, Defendant-Appellee. . Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Middle District of North Carolina, at Durham.

Paul Trevor Sharp, Magistrate Judge. (CA-98-607-1) COUNSEL: ARGUED: James B. Craven, III, Durham, North Carolina, for Appellant. Karen Ann Sindelar, Assistant City Attorney for the City of Durham, Durham, North Carolina, for Appellee. ON BRIEF: Joseph H. Craven, Durham, North Carolina, for Appellant.

Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and Frank J. MAGILL, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Judge Williams wrote the opinion, in which Chief Judge Wilkinson and Senior Judge Magill joined.

OPINION

WILLIAMS, Circuit Judge:

Appellant, American Legion Post 7 of Durham, North Carolina, challenges the constitutionality of the City of Durham's zoning ordinance restricting the size of publicly displayed flags, signs, banners, and other visual displays.1 The district court granted summary judgment to the City. Because we find that the City's flag size restrictions reasonably limit the time, place, and manner of speech in a fashion that preserves ample alternative avenues for communication and is supported by the City's substantial aesthetic interests, we affirm.

I.

In 1988, the Durham City Council adopted a comprehensive sign ordinance ("the 1988 ordinance"), codified as Durham, N.C. City Zoning Ordinance S 12 (1994), which regulated the display of signs, banners, flags and other visual displays.2 The 1988 ordinance restricted the size of publicly displayed national and state flags to 60 square feet in area and provided that such flags must be flown from a pole not more than 40 feet high. Durham, N.C. City Zoning Ordinance S 12.3 P 10 (1994). The 1988 ordinance specifically provided for differential treatment for "[f]lags of this nation, state or other political subdivisions," which were regulated as"flags," as opposed to flags not meeting these content or political derivation criteria, which were regulated more stringently as "banners." See id. at P 22 (providing a regime of more stingent regulation for"banners," and providing that "banners" containing a message or logo are regulated as "signs" and subjected to a number of additional siting, size, and display restrictions). A "substitution provision" in the 1988 ordinance, as interpreted by the City, eliminated this content-based distinction for noncommercial flags, because any display carrying a noncommercial message could be "substituted" for any permitted display, so that a noncommercial flag not meeting the ordinance's content criteria could nonetheless qualify for treatment as a "flag" rather than a "banner."3 Durham, N.C. City Zoning Ordinance S 12.8.5 (1994). The City's stated purposes in enacting the 1988 ordinance included traffic safety, protection of the aesthetic environment, and promotion of economic development.4

Sometime in 1997, the City, enforcing its flag ordinance for the first time, cited a Bob Evans restaurant for flying a large American flag in violation of the 1988 ordinance. On June 26, 1998, the Legion held a ceremony honoring the American flag; the ceremony included representatives of the Veterans of Foreign Wars, the Marine Corps League, and the Military Order of the Purple Heart. As part of this ceremony, the Legion raised a 14 x 17 foot (238 square foot) American flag to the top of the flagpole and saluted it. On June 30, 1998, the City served upon the Legion a Notice of Violation alleging that the Legion had violated the 1988 ordinance by displaying an oversized flag, demanding that the Legion correct this violation within two days, and threatening financial penalties and possible criminal prosecution in the event of noncompliance.

In 1997, following the issuance of the Bob Evans restaurant citation, the City began to consider possible revisions to the 1988 ordinance. This process culminated with the enactment on August 3, 1998, slightly more than one month after issuance of the Legion's citation, of a revised flag ordinance ("the 1998 ordinance"), codified as Durham, N.C. City Zoning Ordinance S 8.1.27. The 1998 ordinance replaced the fixed 60-square-foot flag size limit with a flexible limit based upon flagpole height, which in turn was limited based upon the area's zoning designation. See id. at PP 2, 3. In nonresidential districts, a flagpole with a maximum height of 70 feet bearing a flag or flags of up to 216 square feet is permitted. In a residential district, such as the one in which the Legion's property is located, flagpole height is limited to 25 feet and thus, flag size is limited to 40 square feet. See id. at PP 2 3. The 1998 ordinance also requires flags to be displayed on flagpoles; prohibits the construction of more than three flag poles on a given property; prohibits the display of more than two flags on a flagpole; establishes a setback requirement for flagpoles, and further restricts flags containing commercial messages by rendering the separate provisions of the City's sign ordinance applicable to such flags. See id. at PP 2-7. The 1998 ordinance also replaced the content-based distinctions of the 1988 ordinance with a definition of a "flag" as "a piece of fabric or other flexible material solely containing distinctive colors, patterns, standards, words or emblems used as a symbol of an organization or entity, including but not limited to political jurisdictions . . . ." Id. at P 1.

On July 14, 1998, the Legion filed a complaint against the City, alleging that the 1988 ordinance violated the First Amendment insofar as it regulated the display of American flags. The suit sought injunctive relief, a declaratory judgment that the ordinance was unconstitutional, damages, and costs. After the City amended the ordinance on August 3, 1998, the Legion amended its complaint to include claims similar to those raised in the original complaint regarding the new ordinance. Both sides consented to determination of the case before a United States magistrate judge and filed motions for summary judgment and supporting affidavits.5 On March 21, 2000, the district court denied the Legion's summary judgment motion, granted summary judgment for the City, and entered final judgment for the City. The Legion filed its notice of appeal on April 17, 2000.

In this appeal, the Legion argues that the district court erred in holding that its challenge to the City's now-superseded 1988 ordinance is moot. The Legion further argues that the 1998 ordinance is content-based and is thus subject to heightened First Amendment scrutiny. In response, the City argues first that its 1998 ordinance does not burden speech to any significant degree, so that the district court erred in applying the time, place, and manner analysis elucidated by the Supreme Court in Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293 (1984). The City argues second that if the 1998 ordinance does burden speech, the ordinance is contentneutral and therefore should be evaluated under Clark; the City contends that the ordinance meets this standard. We understand the Legion to counter that, assuming the ordinance is analyzed under the less onerous Clark test, it fails to meet those standards because it is not narrowly tailored and the record does not support a finding that, as applied to the Legion, the ordinance furthers any significant government interest. We address each argument in turn, reviewing the district court's grant of summary judgment de novo. See Providence Square Assoc., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000) (reviewing a grant of summary judgment de novo). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

II.

The Legion has attacked both the 1988 ordinance, under which it was cited in the incident giving rise to this action, and the 1998 ordinance. The district court found that the claim that the 1988 ordinance was unconstitutional was mooted by the City's subsequent amendment of that ordinance because "there is no real or imminent threat . . . that Defendant will reenact the [1988] ordinance at any time in the future." (J.A. at 248.)

The Legion argues that the district court erred in finding that the claims as to the 1988 ordinance were moot. The Legion argues that without a definitive ruling as to the 1988 ordinance's constitutionality, the City remains free to re-enact that ordinance at any time. (Appellant's Br. at 13-15.) See also National Advertising v. City of Fort Lauderdale, 934 F.2d 283, 285-86 (11th Cir. 1991) (holding that because "[i]t remains uncertain whether the City would return the sign code to its original form if it managed to defeat jurisdiction in this case," a live case or controversy exists and the district court erred in mooting claim based on amended ordinance).

Mootness is primarily a function of the Article III"case or controversy" limitation on the jurisdiction of the Federal courts.6 See id. at 286 (noting that moot cases cannot meet the Article III standard). The Legion observes, correctly, that the mere amendment or repeal of a challenged ordinance does not automatically moot a challenge to that ordinance. See City of Mesquite v....

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