Baker v. City of Fort Worth

• Decision Date: 08 December 2020
• Docket Number: Civil Action No. 4:19-cv-00869-O
• Citation: 506 F.Supp.3d 413
• Parties: Brookes H. BAKER and Curtis Ryan Roberts, Plaintiffs, v. CITY OF FORT WORTH, Defendant.
• Court: U.S. District Court — Northern District of Texas

506 F.Supp.3d 413

Brookes H. BAKER and Curtis Ryan Roberts, Plaintiffs,

v.CITY OF FORT WORTH, Defendant.

Civil Action No. 4:19-cv-00869-O

United States District Court, N.D. Texas, Fort Worth Division.

Signed December 8, 2020

Warren V. Norred, C. Chad Lampe, Norred Law PLLC, Arlington, TX, for Plaintiffs.

Laetitia Coleman Brown, Lynn Marie Winter, Fort Worth City Attorney's Office, Fort Worth, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

Reed O'Connor, UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiff Brookes Baker's Motion for Partial Judgment on the Pleadings (ECF No. 39), filed October 20, 2020, and Defendant City of Fort Worth's Response to Motion for Partial Judgment and Appendix in Support (ECF Nos. 40–41). Because Federal Rule of Civil Procedure 12(c) is limited to asserting defenses and objections to a pleading, the Court only addresses Plaintiff's alternative request for partial summary judgment. Having considered the briefing, pleadings, appendices, and applicable law, the Court GRANTS Plaintiff's Motion.

I. BACKGROUND

This section-1983 action arises from Defendant City of Fort Worth ("the City") citing Plaintiff Brookes Baker ("Baker") for placing eighteen-inch crosses in the public right-of-way in front of an abortion clinic. See Citation, Pl.’s Ex. B, ECF No. 39-2. On March 24, 2018, an officer cited Baker under the City's ordinance governing posting of handbills, signs, posters, or advertisements in certain places. See Fort Worth, Texas, City Code § 23-14 (Def.’s App. 2, ECF No. 41); see also Affidavit of Sgt. Justin Seabourn with Fort Worth Police Department Incident Report No. 180026153, Def.’s App. 35–39, ECF No. 41. Chapter 23 Article 14 of the Fort Worth City Code mandates any person seeking to place any signs in a right-of-way of a public street or upon any public property to first seek approval from the city council—excepting only government employees performing their duties and those placing political signs in accordance with another section of the City Code:

§ 23-14 POSTING OF HANDBILLS, SIGNS, POSTERS OR ADVERTISEMENTS IN CERTAIN PLACES—PROHIBITED.

(a) It shall be unlawful for any person, firm or corporation, other than the owner of the property to post, fasten, erect or display, or cause to be posted, fastened, erected or displayed:

(1) Any type of handbill, sign, poster or advertisement on or upon any structure, tree, pole, curb or elsewhere within the right-of-way of any public street, or upon any public property within the City of Fort Worth, without the express permission of the city council of the City of Fort Worth;

(2) Any handbill, sign, poster or advertisement on or upon any private property, real, personal or mixed, within the City of Fort Worth if:

a. Said property has a "No Soliciting," "No Handbills" or "No Trespassing" sign posted that is clearly visible from the street; or

b. The property owner, during the time of placement, orally instructs that no such material be placed on the property.

(3) At any residence before 9:00 a.m. and after 7:00 p.m. Central Standard Time and after 8:00 p.m. during Daylight Savings Time, unless at the occupant's request.

(b) This section shall not apply to a federal, state or local government employee or public utility employee in the performance of their duties for their employer or to a political sign on public property as allowed in Chapter 29, § A01.3.(c).

Fort Worth, Texas, City Code § 23-14 (Def.’s App. 2, ECF No. 41). Chapter 29, Article 1 Section 3(c) of the City Code defines a political sign on public property as those "referring to the candidates or issues involved in a public election" and are subject to the following additional regulations:

a. Political signs shall be permitted on private property only with the consent of the property owner and provided the signs:

1. Do not exceed eight feet in height;

2. Do not have an effective area greater than 36 square feet;

3. Do not contain any moving elements; and

4. Are not illuminated.

b. Political signs, including those with messages on both sides of the sign, shall be permitted on public property during the time the public property is used as an election polling location provided the signs:

1. Are not located within 100 feet of an outside door through which a voter may enter the building of a polling location or such other distance as required by the Texas Election Code;

2. Are on individual posts, stakes or holders placed into the ground or are attached to vehicles lawfully parked at the premises of a polling location;

3. Do not have an effective area greater than four square feet;

4. Are not more than two feet in height;

5. Are posted only during the period beginning the first day the polls are open for voting and ending 24 hours after the polls close or the last voter has voted on election day;

6. Are not placed within ten feet of driveways of a polling location;

7. Are not illuminated;

8. Do not block or obscure other signs; and

9. Are not attached, placed or affixed to any building, tree, shrub, planting or landscaping areas, parking areas, driveways on medians with parking areas, pole, fence or other improvement on the public property used as a polling location.

Fort Worth, Texas, City Code § 29-1 (Def.’s App. 5, ECF No. 41).

On October 13, 2019, Plaintiffs Baker and Curtis Ryan Roberts ("Roberts") (collectively, "Plaintiffs") brought this action under 42 U.S.C. § 1983 against the City, city council members, and seven individual police officers, seeking actual and nominal damages, injunctive relief, and attorneys’ fees; and alleging constitutional violations under the First Amendment rights to free speech and to free exercise of religion, under the Fourteenth Amendment Due Process Clause for unconstitutional vagueness, and under Article 1, Section 8 of the Texas Constitution right to free speech. Compl. ¶¶ 47–63, ECF No. 1. The only remaining Defendant is the City. See ECF Nos. 16, 25. On April 14, 2020, the City moved to dismiss all the claims against it under Rule 12(b)(6). ECF No. 29. In response, Plaintiffs filed their Supplement to Original Complaint, ECF No. 33, for which the Court finds good cause to addend to the Original Complaint. In light of the Supplement and the City's failure to reply, the Court denied the City's motion to dismiss on July 7, 2020. ECF No. 35. On October 20, 2020, Baker moved for judgment on the pleadings under Rule 12(c) and, alternatively, for partial summary judgment under Rule 56. ECF No. 39. The motion is now ripe for the Court's consideration.

II. LEGAL STANDARD

A. Motion for Summary Judgment

The Court may grant summary judgment where the pleadings and evidence show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is not "a disfavored procedural shortcut," but rather an "integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

"[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute as to any material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant must inform the court of the basis of its motion and demonstrate from the record that no genuine dispute as to any material fact exists. See Celotex , 477 U.S. at 323, 106 S.Ct. 2548. "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim." Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998).

When reviewing the evidence on a motion for summary judgment, courts must resolve all reasonable doubts and draw all reasonable inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co. , 853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a credibility determination in light of conflicting evidence or competing inferences. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. If there appears to be some support for disputed allegations, such that "reasonable minds could differ as to the import of the evidence," the court must deny the motion. Id. at 250, 106 S.Ct. 2505.

III. ANALYSIS

Baker moves for partial summary judgment, challenging the constitutionality of the City's ordinances governing signs on public property—both facially and as-applied—in light of the First Amendment's Free Speech Clause and Free Exercise Clause. Mot. 5, ECF No. 39. Specifically, Baker contends that the City "distinguishes signs it allows for temporary placement based on content-based categories" so the Court must apply strict scrutiny in its review. Mot. 2–3, ECF No. 39 (citing Reed v. Town of Gilbert , 576 U.S. 155, 163–64, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015) ). The City rejects the argument, maintaining that both sign-governing ordinances are content neutral. Resp. 6, ECF No. 40. Though the Court declines to address the constitutionality of the temporary sign provisions of Chapter 29,¹ the Court finds two adequate and independent grounds to subject section 23-14 to strict scrutiny: (1) it regulates speech differently based on content and (2) it subjects speech to a prior restraint by the City. The Court addresses each in turn.²

A. Content-Based Distinctions Draw Strict Scrutiny

First, the Court concludes that the City's sign ordinance embodied in section 23-14 creates a content-based distinction, subject to strict scrutiny. If a distinction is content based, then it is "presumptively unconstitutional" and subject to strict scrutiny. Reed , 576 U.S. at 163, 135 S.Ct. 2218. If content neutral, it is subject to intermediate scrutiny. Id. The Fifth Circuit recently clarified how courts should determine whether a law is...