O'Connell v. City of New Bern

Decision Date10 March 2020
Docket NumberNO. 7:18-CV-86-FL,7:18-CV-86-FL
CourtU.S. District Court — Eastern District of North Carolina
Parties Patrick O'CONNELL and Jason Crowley, Plaintiffs, v. CITY OF NEW BERN, NORTH CAROLINA and Todd Conway, in his individual capacity acting as a police officer for the City of New Bern, North Carolina, Defendants.

Frederick H. Nelson, David J. Markese, American Liberties Institute, Orlando, FL, Keith A. Williams, Law Offices of Keith A. Williams, P.A., Greenville, NC, for Plaintiffs.

Natalia K. Isenberg, Brian Matthew Love, Teague, Campbell, Dennis & Gorham, LLP, Raleigh, NC, for Defendants.

ORDER

LOUISE W. FLANAGAN, United States District Judge

This matter comes before the court on the parties' cross-motions for summary judgment. (DE 34, 37). The issues raised have been fully briefed, and in this posture are ripe for ruling. For the reasons that follow, defendants' motion for summary judgment is granted in part and denied in part, and plaintiffs' motion for summary judgment is denied.

STATEMENT OF THE CASE

Plaintiffs initiated this action on May 25, 2018, pursuant to 42 U.S.C. § 1983. Plaintiffs claim defendants violated their rights under the First and Fourteenth Amendments to the United States Constitution.1 Plaintiffs moved for preliminary injunction on July 12, 2018, asking the court to enjoin enforcement of defendant City of New Bern's ("New Bern") picketing ordinance. See New Bern, N.C., Code of Ordinances ("Code") § 66-84(a), (b), and (d) (2019).2 The court denied the motion on December 10, 2018, holding that, based on the record before it, plaintiffs lacked standing to challenge § 66-84(b), and failed to show a likelihood of success on the merits as to their constitutional challenges of § 66-84(a) or (d).

After an uneventful period of discovery, the parties filed the instant motions on August 30, 2019. The parties collectively rely upon their own testimony;3 the testimony of Brenda Blanco ("Blanco"), defendant New Bern's City Clerk; Mark Stephens ("Stephens"), defendant New Bern's City Manager; and Toussaint Summers, Jr. ("Summers"), defendant New Bern's Chief of Police; a map of Mumfest drawn by plaintiff Patrick O'Connell ("O'Connell"); manually filed audio recordings labeled "VN520367," "VN520317," "151010_001," and "Mumfest," together with transcriptions; and manually filed video recordings marked "MAH02855," "MAH02858," "MAH02860," "MAH02861," "MAH02862," "MAH02863," "MAH02867," and "MAH02870."

STATEMENT OF UNDISPUTED FACTS

The undisputed facts may be summarized as follows. Mumfest is an annual fall festival held for the last 37 years in defendant New Bern's historic downtown. (Stephens Aff. (DE 22-2) ¶ 4). The festival is open to the public free of charge, and Mumfest is not an expression of a particular message. (Id.; Conway Dep. (DE 36-3) 53:23–54:10). The public is invited to enjoy a variety of entertainment, attractions, exhibits, and food in defendant New Bern's historic downtown and along its waterfront. (Stephens Aff. (DE 22-2) ¶ 4). Most of the attractions, displays, exhibits, and vendors are located on defendant New Bern's sidewalks and streets. (Id.; Conway Dep. (DE 36-3) 54:11–22; O'Connell Decl. (DE 39) ¶¶ 6, 19; Crowley Decl. (DE 39) ¶ 6).

In 2015 and 2017, an estimated 100,000 people attended Mumfest each year. (Id. ¶ 6; Summers Aff. (DE 22-3) ¶ 4). During the festival, defendant New Bern's streets, sidewalks and public areas were densely crowded. (Stephens Aff. (DE 22-2) ¶ 6; Summers Aff. (DE 22-3) ¶ 5). Because of the small space in which Mumfest occurs relative to the size of the crowd, defendant New Bern has real and significant interests in maintaining public safety, crowd control, the flow of pedestrian and vehicular traffic, and access to buildings abutting public sidewalks and driveways. (Stephens Aff. (DE 22-2) ¶ 6; Summers Aff. (DE 22-3) ¶ 5).

Plaintiffs are individuals acting to spread awareness of their views regarding religious, political, and social topics. (O'Connell Decl. (DE 39) ¶¶ 3, 4; Crowley Decl. (DE 39) ¶¶ 3, 4). Specifically, plaintiffs' message is one of hope and salvation that Christianity offers. (O'Connell Decl. (DE 39) ¶ 25; Crowley Decl. (DE 39) ¶ 19). Plaintiffs share their faith in various ways, including distributing free literature, carrying portable signs or a replica of the cross of Christ's crucifixion, recording public events for commentary and distribution, and engaging others in respectful, one-on-one discussions about Jesus Christ and the Christian faith. (O'Connell Decl. (DE 39) ¶¶ 30–33; Crowley Decl. (DE 39) ¶¶ 17–20). In 2015 and 2017, plaintiffs attended Mumfest for the purpose of preaching the Gospel to festival attendees. (See O'Connell Decl. (DE 39) ¶ 35; Crowley Decl. (DE 39) ¶ 24).

A. The Code

Defendant New Bern's local ordinances set forth conditions for picketing and definitions regarding the same, as follows:

Sec. 66-81. – Definitions ....
Picket or picketing means to make 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.
Sidewalk means that portion of the street right-of-way which is designated for the use of pedestrians and may be paved or unpaved and shall include easements and rights-of-ways.
Street means the entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter or right, for the purposes of vehicular traffic, including that portion that is known as the shoulder of the roadway and the curb ....
Sec. 66-84 – Picketing Regulations.
a) Picketing may be conducted on public sidewalks, in any city-controlled park, or in other city owned areas normally used or reserved for pedestrian movement, including easements and rights-of-way, and shall not be conducted on the portion of the public roadway used primarily for vehicular traffic.
(b) Notwithstanding subsection (a), picketing may not be conducted:
(1) On any city-controlled park during a festival that has been permitted at that particular property or when that property has been otherwise reserved for private use ....
c) Picketing shall not disrupt, block, obstruct or interfere with pedestrian or vehicular traffic ....
d) Written or printed placards or signs, flags, or banners carried by individuals engaged in picketing shall be of such a size and/ or carried on the sidewalks or other city-owned areas, as to allow safe and unobstructed passage of pedestrian or vehicular traffic. The staff or pole on which a sign, flag, or banner may be carried shall be made of corrugated material, plastic, or wood, and shall not exceed 40 inches in length and shall not be made of metal or metal alloy. If made of wood, the staff or pole shall be no greater than three-fourths inch in diameter at any point. A staff or pole must be blunt at both ends ....
f) Spectators of pickets shall not physically interfere with individuals engaged in picketing. Picketers and spectators of pickets shall not speak fighting words or threats that would tend to provoke a reasonable person to a breach of the peace.

Code §§ 66-81, 66-84 ; (see also Blanco Aff. (DE 22-1) ¶¶ 1–3, Ex. A). In addition to defendant New Bern's picketing ordinance, the Code also includes a noise ordinance, which in pertinent part provides:

Sec. 26-66 – General prohibitions; loud, raucous and disturbing noise.
It shall be unlawful for any person or group of persons, regardless of number, willfully to make, continue, or cause to be made or continued, any loud, raucous and disturbing noise, which term shall mean any sound which because of its volume level, duration, and character annoys, disturbs, injures, or endangers the comfort, health, peace, or safety of reasonable persons of ordinary sensibilities within the limits of the city. The term ‘loud, raucous and disturbing noise’ shall be limited to loud, raucous and disturbing noises heard upon the public streets, in any public park, in any school or public building or upon the grounds thereof while in use, in any church or hospital or upon the grounds thereof while in use, upon any parking lot open to members of the public as invitees or licensees, or any occupied residential unit which is not the source of the noise or upon the grounds thereof.
Sec. 26-67 – Prohibited noise activities.
The following acts are hereby declared to be public nuisances in violation of the above section, but the acts enumerated in this section shall not be deemed to be exclusive:
(1) The use or operation of any mechanical or electrical device, apparatus, or instrument to amplify, intensify, or reproduce the human voice, or to produce, reproduce, intensify, or amplify any other sound when the sound from such activity is clearly audible more than 100 feet from the device, apparatus, or instrument ....

Code §§ 26-66, 26-67.

B. Mumfest 2015

In 2015, several of defendant New Bern's police officers approached plaintiffs and their group when they arrived at Mumfest and told them that they could not bring their nine-foot cross into the festival because it was taller than 40 inches and more than three-quarter inches in diameter. (MAH02855 at 00:00–00:32; O'Connell Dep. (DE 36-1) 18:18–25; Crowley Dep. (DE 36-2) 10:16–23; see Pl. Opp. Statement of Facts (DE 50) ¶ 9).4 Plaintiff O'Connell asked to talk to the officer's supervisor. (MAH02855 at 00:40–00:52; O'Connell Dep. (DE 36-1) 18:23–19:1). Defendant Conway, who was supervisor at that time, reiterated the officers' point, telling plaintiff O'Connell that he could not bring the cross into the event because it was taller than 40 inches and more than three-quarter inches in diameter.5 (Conway Dep. (DE 36-3) 74:8–18, 95:23–96:12). Plaintiff O'Connell nonetheless attempted to enter the...

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    • United States
    • U.S. District Court — Western District of North Carolina
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    ...on the Eleventh Circuit's decision in Pine v. City of West Palm Beach and the Eastern District of North Carolina's decision in O'Connell v. City of New Bern to argue that amplification ban in § 1085(2) is narrowly tailored. In O'Connell, the Eastern District of North Carolina held that an o......
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    ...on the Eleventh Circuit's decision in Pine v. City of West Palm Beach and the Eastern District of North Carolina's decision in O'Connell v. City of New Bern to argue that amplification ban in § 1085(2) is narrowly tailored. In O'Connell, the Eastern District of North Carolina held that an o......
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