Asquith v. City of Beaufort, Civ. A. No. 3-92-1531-0

• Decision Date: 02 September 1995
• Docket Number: Civ. A. No. 3-92-1531-0,3-93-1145-0.,3-92-1656-0
• Citation: 911 F. Supp. 974
• Court: U.S. District Court — District of South Carolina
• Parties: John M. ASQUITH, Ricky L. Knowles, Billy D. Randall, Wayne H. Williamson, J. Blake Lindsey, Jeff Attlessey, John Doe, Mary Roe, and others similarly situated, Plaintiffs, v. CITY OF BEAUFORT; Colonel Jesse Altman, Jr., Chief of Police; Captain Jefferson Dowling, Sgt. Michael Lee, John Doe, and other unnamed police officers; David Taub, Mayor; Dr. Charles A. Bush, Edie Rogers, Donnie Beer, and Fred Washington, Jr., Members of the City Council; Dean Hunter, City Manager; all in their official capacities; and Colonel Jesse Altman, Jr., William Rhett, Nancy Rhett, Roger Karr, and Neil B. Lipsitz, in their individual capacities, Defendants. CALVARY BAPTIST CHURCH, on behalf of its members, and George Daughtey and Richard Simpson, Plaintiffs, v. CITY OF BEAUFORT; David Taub, Mayor, Dr. Charles A. "Tony" Bush, Edie Rogers, Donnie Beer, and Fred Washington, Jr., Members of the City Council; Dean Hunter, City Manager; and Colonel Jesse Altman, Jr., Chief of Police, all in their official capacities, Defendants. William Bradley LINDSEY, through his Guardian ad Litem Jeffrey Blake Lindsey, Plaintiff, v. CITY OF BEAUFORT; William R. Neill, Chief of Police; Captain Jefferson Dowling, Officer Brad Payne, and other unnamed police officers; David Taub, Mayor, Dr. Charles A. Bush, Edie Rogers, Donnie Beer, and Fred S. Washington, Jr., Members of the City Council; Dean Hunter, City Manager; all in their official capacities; Defendants.

911 F. Supp. 974

John M. ASQUITH, Ricky L. Knowles, Billy D. Randall, Wayne H. Williamson, J. Blake Lindsey, Jeff Attlessey, John Doe, Mary Roe, and others similarly situated, Plaintiffs, v. CITY OF BEAUFORT; Colonel Jesse Altman, Jr., Chief of Police; Captain Jefferson Dowling, Sgt. Michael Lee, John Doe, and other unnamed police officers; David Taub, Mayor; Dr. Charles A. Bush, Edie Rogers, Donnie Beer, and Fred Washington, Jr., Members of the

City Council; Dean Hunter, City Manager; all in their official capacities; and Colonel Jesse Altman, Jr., William Rhett, Nancy Rhett, Roger Karr, and Neil B. Lipsitz, in their individual capacities, Defendants.

CALVARY BAPTIST CHURCH, on behalf of its members, and George Daughtey and Richard Simpson, Plaintiffs, v. CITY OF BEAUFORT; David Taub, Mayor, Dr. Charles A. "Tony" Bush, Edie Rogers, Donnie Beer, and Fred Washington, Jr., Members of the City Council; Dean Hunter, City Manager; and Colonel Jesse Altman, Jr., Chief of Police, all in their official capacities, Defendants.

William Bradley LINDSEY, through his Guardian ad Litem Jeffrey Blake Lindsey, Plaintiff, v. CITY OF BEAUFORT; William R. Neill, Chief of Police; Captain Jefferson Dowling, Officer Brad Payne, and other unnamed police officers; David Taub, Mayor, Dr. Charles A. Bush, Edie Rogers, Donnie Beer, and Fred S. Washington, Jr., Members of the City Council; Dean Hunter, City Manager; all in their official capacities; Defendants.

Civ. A. Nos. 3-92-1531-0, 3-92-1656-0, 3-93-1145-0.

United States District Court, D. South Carolina, Columbia Division.

September 2, 1995.

COPYRIGHT MATERIAL OMITTED

Orin Gail Briggs, Bruce W. Green, American Family Ass. Law Center, Tupelo, MS, Patrick J. Flynn, USC School of Law, Law Center, Columbia, SC, for plaintiffs.

William B. Harvey, III, Beaufort, SC, Samuel Richard Clawson, Charleston, SC, James Warner Alford, Columbia, SC, for defendants.

PERRY, District Judge.

These cases are before the Court pursuant to motions by the plaintiffs for an order preliminarily enjoining the enforcement of a Beaufort, South Carolina ordinance which prohibits persons from "willfully disturbing any neighborhood or business in the city by making or continuing loud and unseemly noises or by profanely cursing and swearing or using obscene language...." The individual plaintiffs are ministers who engage in the practice known as "street preaching." Plaintiffs allege inter alia that they have from time to time preached the gospel and have otherwise spoken publicly while standing or walking on the sidewalks adjacent to and forming a part of the public streets in downtown commercial area of Beaufort, South Carolina. Plaintiffs allege further that, as they preached, Beaufort police officials have arrested or threatened to arrest them on charges that their "loud" preaching was in violation of the city's anti noise ordinance. Plaintiffs argue that the ordinance, both facially and as applied to them, is a prior restraint upon their rights of freedom of speech and freedom of assembly, in violation of the First and Fourteenth Amendments of the United States Constitution.

I.

For periods exceeding ten years male members of Calvary Baptist Church have preached while standing or walking upon the public streets and sidewalks in Beaufort, South Carolina.¹ In October, 1991 following receipt of citizen complaints about street preaching, the City Council enacted Section 9-1008 of the Beaufort Municipal Code which provides as follows:

It shall be unlawful for any person to willfully disturb any neighborhood or business in the City by making or continuing loud and unseemly noises, or by profanely cursing and swearing, or using obscene language. It shall further be unlawful for any person to wilfully disturb any neighborhood or business within the City by use of words which threaten or tend to threaten or incite physical violence, or which endanger or tend to endanger the health and safety of others within the City.

Following enactment of the ordinance, Beaufort's police chief wrote a "Notice to Street Preachers," copies of which were delivered to street preachers prior to placing them under arrest, which stated that "This Notice constitutes a warning that the present volume of your message upon the streets of Beaufort, in a business district, is considered unseemly noise and constitutes a violation of the city ordinance 9-1008(a). This warning is a result of a complaint from a business person who is considered a captive audience and objects to the unseemly noise." Copies of the "Notice" were distributed to Beaufort city policemen for presentation to offending street preachers as warnings prior to arresting them.

Thereafter, members of Calvary Baptist Church continued to preach on the public streets of Beaufort and several of them have been arrested and charged with violating City Ordinance 9-1008(a).² Members of another church group, the Gethsemane Anabaptist Church, also began preaching upon Beaufort's public streets and sidewalks and many of them have been arrested and charged with violating the ordinance.³

Several plaintiffs testified and have filed affidavits averring that they commenced preaching and that, upon receipt of the notification to cease or be arrested, they stopped preaching.⁴ Plaintiffs argue that on all occasions when they were warned or arrested, they were preaching and urging people to follow the teachings of Jesus Christ; that each of them has preached in a voice loud enough to be heard and that no amplification devices were used; that they have at all times conducted themselves in an orderly manner; and that they have not interfered with pedestrian or vehicular traffic and have not blocked entrances to or exits from any business establishment.

The defendants admit that the plaintiffs have been notified that their loud preaching was in violation of Beaufort Ordinance Section 9-1008(a) and that church members have been arrested and convicted.

The city of Beaufort defendants argue that all action taken by them was lawful and proper and that the plaintiffs may not proceed with this action, but should proceed to vindicate their rights in the ongoing criminal proceedings that were then pending on appeal in the South Carolina state courts.

II.

The defendants move to dismiss these cases pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure upon the ground that the complaints fail to state claims upon which relief can be granted. Defendants argue that when Numbers 92-1531 (Asquith, et al) and 92-1656 (Calvery Baptist Church, et al.) were commenced, some or all of the plaintiffs had been arrested and charged with violating the anti noise ordinance which they seek here to invalidate; and that some of them had been convicted of having violated the ordinance and that their convictions were then pending appeal.⁵ The defendants argue that, therefore, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its progeny require this Court to dismiss these cases or to abstain from further consideration of them. The plaintiffs deny that all of them were convicted under the ordinance and they argue that those who are not charged with such violations may pursue their claims for relief in this Court. Plaintiffs also argue that, as to those plaintiffs who were under pending charges, they seek prospective relief only and that they do not ask this Court to enjoin pending prosecutions. Plaintiffs argue that, therefore, Younger v. Harris does not prevent this Court from granting them the relief they seek.

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) the plaintiff Harris was indicted by a California Grand Jury for allegedly violating the California Criminal Syndicalism Act. Harris then commenced suit in a United States District Court, seeking to enjoin the District Attorney of Los Angeles County from prosecuting him and alleging that the prosecution and even the presence of the Act inhibited the exercise of his rights of freedom of speech, guaranteed him under the First and Fourteenth Amendments. The three judge district court granted the injunctive relief. The Supreme Court reversed, holding that our "national policy" forbids federal writs from staying or enjoining state court proceedings except under special circumstances. Younger v. Harris recognizes the principle that judicial economy and proper state-federal relations preclude federal courts from exercising equitable jurisdiction to enjoin ongoing state prosecutions. Id. 401 U.S. at 43, 91 S.Ct. at 750. Thus, a federal court may not enjoin a pending state prosecution.

The record discloses that several ministers associated with Calvary Baptist Church and Gethsemane Anabaptist Church have been arrested while speaking or preaching while on public streets in Beaufort. Many of them have been convicted of violating the noise ordinance here challenged and have appealed their conviction. The South Carolina Supreme Court has affirmed those convictions and rejected challenges to the constitutionality of the ordinance. City of Beaufort v. Baker, 432 S.E.2d 470 (S.C.1993).

Several of the plaintiffs, Daughety, Simpson, Attlessey and William Bradley Lindsey had not been charged with violating the ordinance and, when these actions were commenced, had no state criminal proceedings pending against them. The plaintiff John Asquith has been convicted of loud preaching while on a Beaufort Street in violation of the ordinance and has paid a fine in accordance with the sentence imposed upon him. Asquith has not appealed his conviction and, when his action was filed, had no state criminal proceedings pending against him. The plaintiffs have testified that they fear they will again be arrested and prosecuted under the Beaufort noise ordinance if they speak or preach while on Beaufort city streets. The plaintiffs' stated fears cannot be characterized as imaginary or speculative. Many of their fellow ministers have...