Benham v. City Of Charlotte

• Decision Date: 08 January 2010
• Docket Number: No. 3:07cv395.,3:07cv395.
• Citation: 682 F.Supp.2d 549
• Parties: Philip BENHAM, et al., Plaintiffs, v. CITY OF CHARLOTTE, et al., Defendants.
• Court: U.S. District Court — Western District of North Carolina

682 F.Supp.2d 549

Philip BENHAM, et al., Plaintiffs,

v.CITY OF CHARLOTTE, et al., Defendants.

No. 3:07cv395.

United States District Court,

W.D. North Carolina,

Charlotte Division.

Decided: Jan. 8, 2010.

Frederick Herbert Nelson, Orlando, FL, J. Denice Von Gnechten, Charlotte, NC, for Plaintiffs.

Robert E. Hagemann, Office of the City Attorney, Charlotte, NC, for Defendants.

MEMORANDUM AND ORDER

ROBERT J. CONRAD, JR., Chief Judge.

THIS MATTER is before the Court on Defendants' Motion for Summary Judgment (Doc. Nos. 22 & 24), Plaintiffs' Response (Doc. No. 25), and Defendants' Reply (Doc. No. 30). For the reasons stated below, the Court GRANTS Defendants' Motion for Summary Judgment.

I. FACTUAL FINDINGS

This case involves the City of Charlotte's denial of a public assembly permit applied for by Rev. Philip Benham on behalf of Operation Save America, a non-profit corporation. In 2004, Charlotte amended portions of its Code dealing with picketing (Chapter 19, Article X) and public assemblies and parades (Chapter 19, Article XI). In doing so, Charlotte recognized its interest to protect the right of individuals to exercise First Amendment rights in traditional public forums, such as public sidewalks, streets, and parks. (Doc. No. 10-5: Response at Affidavit of Brenda Freeze, Exhibit A: Ordinance No. 2621). Charlotte further recognized its interest in "protecting the health, safety, and welfare of the general public and preserving public order" and in "maintaining the free flow of traffic on public streets and sidewalks, preserving access to public places and buildings and protecting property." Id. Charlotte's stated purpose in amending the Code was to further its governmental interests by imposing

... reasonable and constitutional regulations for the use of public streets, sidewalks, and parks during a picket, public assembly, or parade... without regard to the purpose or content of the message, but to preserve the public peace and to avoid unreasonable conflicts with other legitimate use of such property.

Id.

As amended, the Code requires a permit for any public assembly. Charlotte City Code, Art. XI, § 19-312(a). A public assembly is defined as

(1) a festival or demonstration which is reasonably anticipated to obstruct the normal flow of traffic upon any public street and that is collected together in one place; and

(2) a festival on the Old City Hall lawn, the Charlotte-Mecklenburg Government Center Plaza, or in Marshall Park, Polk Park, Independence Square Plaza, Are-quipa Park or any other city-controlled Park.

Charlotte City Code, Art. XI, § 19-311. A festival "means a concert, fair, exhibit, promotion, community event, block party, or similar event." Id. A permit may be denied based on reasons detailed in § 19-312(c). If the permit official denies an application, that decision may be appealed to the appeals official, who must hold a hearing. Charlotte City Code, Art. XI, § 19-312(f). If the denial is upheld, the applicant may appeal to the Superior Court of Mecklenburg County. Id.

The Code does not require a permit for a picket, which is defined as

... a public display or demonstration of sentiment for or against a person or cause, including protesting which may include the distribution of leaflets or handbills, the display of signs and any oral communication or speech, which may involve an effort to persuade or influence, including all expressive and symbolic conduct, whether active or passive.

Charlotte City Code, Art. X, § 19-301. Picketing is allowed on public sidewalks and at city-controlled locations, such as Independence Square Plaza. Charlotte City Code, Art. X, § 19-303. Picketers may not obstruct pedestrian or vehicular traffic and must comply with other city ordinances, such as the noise ordinance. Id.

On December 14, 2006, Sheryl Chandler submitted a public assembly application on behalf of Rev. Benham and Operation Save America. The application described the proposed event's name as "Roe vs Wade Memorial" to be held on January 22, 2007, between 11:30 a.m. and 1 p.m., at "Trade and Tryon—in front of the bronze disc sculpture."¹ (Doc. No. 26: PI. Ex. 13). The application stated that the event would not involve the closure of streets, the sale of alcoholic beverages or food, the provision of portable toilets, or the charging of admission and vendor fees. Id. The event was described as "evangelical, gospel proclamation, praise + worship band, local Christian pastors speaking, post-abortive mothers give testimony, call to repentance" with one stage for musical entertainment. Id. Based on previous years' attendance, ² it was estimated that 100 people would attend. Id.

On December 20, 2006, Permit Official Emily Westbrook notified Rev. Benham by letter that she could not accept and process his application. (Doc. No. 26: PI. Ex. 14). She explained that the event was a demonstration and not a festival according to the City Code and that permits for demonstrations at Independence Square Plaza are not issued.³ Id. Instead, demonstrations at that location are covered by the picketing ordinance which does not require a permit. Id. Ms. Westbrook informed Rev. Benham that he was required to notify the police department if he expected 50 or more attendees and to obtain an amplified sound permit if he used amplification. Id.

On December 28, 2006, Rev. Benham appealed Ms. Westbrook's decision to Appeals Official Keith Parker, who held a hearing on January 3, 2007. (Doc. No. 26: PI. Ex. 15). Mr. Parker upheld the classification of the Roe vs Wade Memorial as a demonstration and not a festival. He reasoned that January 22 was the anniversary of the Supreme Court's decision in Roe v. Wade⁴ and that the event would "primarily consist of individuals and groups taking turns speaking and singing regarding the subject of abortion." Id. Thus he concluded:

[t]he Roe v. Wade Memorial would constitute a public demonstration or sentiment for or against a cause (i.e., the subject of abortion) and is, therefore, a "demonstration" within the meaning of the Public Assembly Ordinance and a "picket" within the meaning of the Picket Ordinance.

Id. He informed Rev. Benham that, subject to the regulations in the picketing ordinance, the event could be held at the time and place proposed without a permit. Id.

Rev. Benham did not seek judicial review of Mr. Parker's decision. Instead, the event was held on January 22, 2007, without a permit. Sgt. Oliver Cunningham of the Charlotte-Mecklenburg Police Department observed the entire event and noted no one involved with the event was arrested or cited for any violation of law, although two noise ordinance warnings were issued. (Doc. No. 25: PL Ex. 11: Oliver Dep. at 18, 21). It appeared to Sgt. Cunningham that the event was conducted as planned, (Doc. No. 10-6: Response at Affidavit of Oliver Cunningham), and there is no evidence in the record that any speech or expressive conduct was inhibited by the lack of a public assembly permit.

On September 20, 2007, Plaintiffs filed the instant complaint pursuant to 42 U.S.C. § 1983 alleging that Defendants impeded, and continue to impede, their free speech and free exercise rights guaranteed by the United States and North Carolina Constitutions.⁵ (Doc. No. 1).

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment may be granted in a First Amendment case. Steinburg v. Chesterfield County Planning Comni'n, 527 F.3d 377 (4th Cir.2008) (affirming district court's grant of summary judgment on free speech claim). Summary judgment shall be granted "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 and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). The movant has the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Id. The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings to defeat a motion for summary judgment. Id. Evidence that is not supported is insufficient to defeat a motion for summary judgment. Id. at 323-24, 106 S.Ct. 2548. The non-moving party must present sufficient evidence from which "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.1995). When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, "a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505.

Plaintiffs' summary judgment response includes a section titled "Statement of Disputed Facts," (Doc. No. 25: Mem. at 3-21), which details Ms. Westbrook's and Mr. Parker's interpretation of the ordinance and contains facts about other events that were granted permits. Plaintiffs take issue with Charlotte's classification of the Roe vs Wade Memorial as a demonstration and other events as festivals. They point out characteristics of other events which should, in their opinion, have resulted in a demonstration classification for them as well. Defendants point...