O'Connell v. City of New Bern

• Decision Date: 10 December 2018
• Docket Number: NO. 7:18-CV-86-FL,7:18-CV-86-FL
• Citation: 353 F.Supp.3d 423
• Court: U.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.

353 F.Supp.3d 423

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.

NO. 7:18-CV-86-FL

United States District Court, E.D. North Carolina, SOUTHERN DIVISION.

Signed December 10, 2018

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

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

ORDER

LOUISE W. FLANAGAN, United States District Judge

This matter is before the court on plaintiffs' motion for preliminary injunction.(DE 16).The matters have been fully briefed, and in this posture the issue raised are ripe for ruling.For the reasons that follow, the court denies plaintiffs' motion.

STATEMENT OF THE CASE

Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983 by filing complaint on May 25, 2018, asserting both facial and as applied constitutional challenges to the city of New Bern's code of ordinances ("Code") that apply to picketing on public streets, sidewalks, and other public places.More specifically, plaintiffs assert deprivations of their constitutional rights to freedom of speech and free exercise of religion under the First Amendment and their right to due process under the Fourteenth Amendment as a result of defendantcity of New Bern and defendantTodd Conway's ("Conway") alleged interference with plaintiffs' religious picketing activities at the New Bern Mumfest ("Mumfest") in both 2015 and 2017.Plaintiffs seek damages as well as declaratory and injunctive relief.

On July 12, 2018, plaintiffs filed the instant motion for preliminary injunction, seeking "an Order of this Court enjoining Defendants from enforcing the Code against them in any manner that prohibits or prevents Plaintiffs from exercising their constitutional rights in public spaces in the City."(DE 17at 2).Defendants filed response in opposition on August 7, 2018, including affidavits in support from Brenda Blanco, city clerk for the city of New Bern; Marc Stephens, city manager for the city of New Bern; Toussaint Summers, Jr., chief of the New Bern police department; and defendant Conway, officer of the city of New Bern police department.Defendants additionally submit a current copy of Chapter 66, Article III of the Code, as adopted by the city council of the city of New Bern and thereafter amended.(SeeDE 22-1at 3-22).Plaintiffs filed no reply.

STATEMENT OF THE FACTS

Except as otherwise indicated, the facts alleged in the complaint and evidence proffered by defendants relevant to the resolution of the instant motion may be summarized as follows.

A.The Code

The Code provides regulations setting 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 ....

(Compl. (DE 1)¶¶ 20-21;see alsoDE 22-1at 11-13).¹

B.Plaintiffs' Activities at Mumfest in 2015

According to defendants, MumFest is an annual fall festival that has been held for the past 37 years in the historic downtown of the city of New Bern.(DE 22at 2).The public is invited to enjoy a wide variety of entertainment, attractions, exhibitors, and food, all locations of which are held open to the public free of charge.(Id. ).Around 100,000 people attended MumFest in 2015 and 2017.(Id. ).Plaintiffs allege, and defendants dispute, that the city issues permits to allow organizers to conduct Mumfest.(Compl. (DE 1)¶¶ 22-26;DE 22at 10("MumFest is not an event which requires a permit, and it is open to the general public") ).

Plaintiffs allege that in 2015, plaintiffs were peacefully sharing their religious, political, and social message on the city's sidewalks and streets near the festival areas, during the festival, (Compl. (DE 1)¶ 32),² and that the city enforced the Code regarding picketing by informing plaintiffsthey were not allowed to speak to or distribute literature to festival attendees during the festival and by not allowing plaintiffs to carry a replica of a cross, while other individuals were allowed to carry five-foot-tall "windmills" on the city's sidewalks and streets, (id.¶¶ 37-44).³

More specifically, plaintiffs allege that plaintiff Crowley entered the festival areas in 2015, but defendant Conway banned him from distributing literature.(Id.¶ 33).Defendant Conway also banned plaintiff O'Connell from entering the festival unless he agreed to leave his cross outside the festival area.(Id.¶ 34).⁴Plaintiff O'Connell attempted to stand in one location on the city's sidewalks and streets near the festival areas to hold his cross, but defendant Conway instructed two festival workers to park their trash utility cart in front of plaintiff O'Connell and directed them to place the cart in reverse so that the "beep" warning would drown out plaintiff O'Connell.(Id.¶¶ 35-36).Defendant Conway and the event workers then laughed together while the constant "beep" sound emanated from the cart, and defendant Conway returned with another utility cart later in the day and engaged in the same activity again.(Id.¶ 36).

C.Plaintiffs' Activities at Mumfest in 2017

Plaintiffs allege that in 2017, plaintiff O'Connell was again peacefully sharing his religious, political, and social message on the city's sidewalks and streets in and around the festival areas, during the festival.(Id.¶ 55).Thereafter, a city representative ordered plaintiff O'Connell to cease and desist expressing his messages on the city's sidewalks and streets in and around the festival areas, or face arrest and incarceration.(Id.¶ 56).Plaintiffs allege that a city officer "enforced the Code" and "admitted that the City was subjectively enforcing the Code."(Id.¶ 57).Plaintiffs allege the city enforced the Code by informing plaintiff O'Connell that he was not allowed to carry a replica of a cross on the city's sidewalks and streets in and around the festival areas.(Id.¶ 59).

D.Plaintiffs' Planned Future Activities

Plaintiffs allege that on "upcoming days – including but not limited to days in May 2018 through December 2022 – Plaintiffs have concrete plans to engage in their constitutionally protected activities by peacefully expressing religious, political, and social speech within the City's Public Spaces, including during festivals and other events."(Id.¶ 70).

DISCUSSION

A.Standard of Review

Rule 65 of the Federal Rules of Civil Procedure allows a court to enter preliminary injunctive relief prior to adjudication on the merits of the action.Fed. R. Civ. P. 65(a).A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief."Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249(2008).To obtain a preliminary injunction, plaintiff must establish four requirements: 1) likelihood of success on the merits; 2) likelihood of irreparable harm in the absence of preliminary relief; 3) that the balance of equities tips in plaintiff's favor; and 4) that an injunction is in the public interest.Id. at 20, 129 S.Ct. 365;see alsoReal Truth About Obama, Inc. v. Federal Election Comm'n, 575 F.3d 342, 346(4th Cir.2009), vacated on other grounds, 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764(2010), reinstated in relevant part on remand, 607 F.3d 355(4th Cir.2010)(per curiam).

B.Analysis

1.Likelihood of Success on the Merits

a. Standing Issues Regarding...