Green v. City of Raleigh
| Decision Date | 16 April 2008 |
| Docket Number | No. 07-1351.,07-1351. |
| Citation | 523 F.3d 293 |
| Parties | Dennis GREEN, Plaintiff-Appellant, v. CITY OF RALEIGH; Jane Perlov, individually and in her official capacity as Chief of Police for the City of Raleigh, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Nathan W. Kellum, Alliance Defense Fund, Memphis, Tennessee, for Appellant. Dorothy K. Leapley, Deputy City Attorney for the City of Raleigh, Raleigh, North Carolina, for Appellees.
ON BRIEF:
Jonathan A. Scruggs, Alliance Defense Fund, Memphis, Tennessee, for Appellant. Thomas A. McCormick, City Attorney for the City of Raleigh, Raleigh, North Carolina, for Appellees.
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge TRAXLER and Judge DUNCAN joined.
This appeal involves challenges to the constitutionality of city ordinances requiring those who wish to picket on public ways to provide the city with prior notice of this intent and comply with certain restrictions while picketing. The district court held that the ordinances do not violate the First Amendment. We affirm.
On August 23, 2003, Dennis Green and at least ten others met outside the RBC Center in Raleigh, North Carolina (the "City"). The group distributed flyers to attendees of a Promise Keepers event, carried signs, and picketed in the parking lot adjacent to the Center. After approximately an hour, an off-duty police officer working security requested that Green and his companions leave the area. The officer explained that the Center and attached parking areas were private property and that the group could be cited for trespass violations.
The group moved to a grassy right-of-way along a public street near the Center and resumed picketing. Upon learning of its relocation, the officer contacted the police department to ask if the group had notified the City of its intent to picket and been issued a receipt of this notice.
When the officer learned that the group had neither notified the City nor obtained a receipt of notice, he explained to the group that picketing without a receipt violated the City's ordinances and that refusal to leave the area could result in citations and fines as well the confiscation of signs. Green and his group left the area.
On February 10, 2005, Green filed this action, seeking injunctive and declaratory relief, actual and/or nominal damages, and attorney's fees against the City and its Chief of Police, Jane Perlov, in both her individual and official capacities. Green alleges that certain portions of the City ordinances violate his First Amendment rights to free speech and peaceable assembly. Specifically, Green alleges in his complaint, inter alia, that the City ordinances effective at the time of his picketing in 2003 unconstitutionally required picketers to provide the police department with notice of their intent to picket (the "notice requirement") and to submit information regarding the name of the organization demonstrating, the time and location of the event, and the name of the individual designated to carry the receipt of notice (collectively, the "disclosure requirement"). Raleigh, N.C., City Code §§ 12-1056, 12-1057(g) (2003). Green also challenges provisions that restricted picketers to signs of no larger than two feet (the "sign-size requirement") and that required picketers to remain on the outermost part of the sidewalk (the "outermost sidewalk requirement"). § 12-1057(b), (e) (2003).
In March 2006, the City revised and liberalized the picketing ordinances by eliminating the notice requirement for groups of fewer than ten picketers (the "small-group exception"), allowing anonymous picketing by any group (with only the name of the individual holding the receipt of notice required), and enlarging the allowable sign size. Raleigh, N.C., City Code §§ 12-1056(b), 12-1057(b) (2006).1 Although Green did not file an amended complaint challenging the new ordinances, he maintained (and continues to maintain on appeal) that the amended ordinances offended his right to free speech "in the same manner" as the original ones, and he also challenges the smallgroup exception added in the amended ordinance. The City does not contend that Green's failure to amend his complaint bars consideration of his challenges to the amended ordinances. Accordingly, we treat his challenges to the amended ordinances "in all respects as if raised in the pleadings." See Fed.R.Civ.P. 15(b).
After discovery, the district court dismissed Green's claims against Chief Perlov, holding that the claims against her in her official capacity were indistinguishable from the claims against the Raleigh Police Department and that she was entitled to qualified immunity for the claims against her in her individual capacity. Green does not appeal these rulings. The district court then granted the City's motions for summary judgment on Green's remaining claims.
On appeal, Green challenges both the original and amended ordinances. He argues that provisions in the original ordinances were unconstitutional as-applied to his conduct on August 23, 2003; he has abandoned any facial challenge to the original ordinances by failing to raise this claim in his opening brief. See United States v. Al-Hamdi, 356 F.3d 564, 571 n. 8 (4th Cir.2004). However, Green does raise both facial and as-applied challenges to the amended ordinances.
We first consider preliminary questions as to Green's standing and the possible mootness of some of his challenges. We review de novo the district court's holdings on these questions. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir.2005).
Green contends that the district court erred in holding that he lacked standing to bring as-applied challenges to the outermost sidewalk and disclosure requirements as well as to the absence of a small-group exception. Neither Green nor the City disputes that Green does have standing to mount as-applied challenges to the notice and sign-size requirements.
With respect to the outermost sidewalk requirement, we agree with the district court that Green does lack standing to bring an as-applied challenge. Green was never ordered to remain on the outermost sidewalk because, in fact, there was no sidewalk where Green's group chose to picket. After leaving the RBC Center, Green and the other picketers moved onto the grassy right-of-way along a public road. Police never asked Green or others to move to any section of the right-of-way and indeed never referred to this requirement at any point. Thus, the City never applied this requirement to Green's conduct.
We believe the district court did, however, err in holding that Green lacked standing to bring an as-applied challenge to the disclosure requirement. Although Green did not comply with the requirement that he reveal his identity to the City, indisputably a security officer told Green's group that failure to submit a notice of intent to picket would violate the City ordinances. Green could not have obtained a receipt entitling him to picket unless he informed the City of "[t]he name, if any, of the organization or group sponsoring or proposing to picket," "[t]he name of the person and organization giving notice of intent to picket," and "[t]he person or persons to be in charge of the activity and who will accompany it and carry any receipt of notice at all times." § 12-1056(b)(1), (4), (6) (2003). Mandating Green's possession of a receipt of notice hence also mandated his conformance with the ordinance's disclosure requirement. "The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (internal quotation marks omitted). Thus, Green possesses standing to bring an as-applied challenge to the disclosure requirement.
The district court also erred when it held that Green lacked standing to challenge the original ordinances as they were applied to his group of eleven or more persons on August 23, 2003. The district court reasoned that because the original ordinances contained no small-group exception, the exception could not have been applied to Green. But Green challenges the absence of a small-group exception in the original ordinances. That is, Green maintains that because the original ordinances contained no exception for small groups, the ordinances were unconstitutionally applied to his group on August 23, 2003. Clearly Green has standing to bring this as-applied challenge to the original ordinances.
The City argues that the district court erred in holding that Green has standing to assert a facial challenge to the amended picketing ordinances. According to the City, the amended ordinances cannot be challenged for facial overbreadth unless they are "substantially over-broad."
As the district court explained, the City's argument confuses standing with a final determination of overbreadth on the merits. Green's overbreadth challenge will fail if he cannot adequately demonstrate that a challenged provision "reaches a substantial amount of constitutionally protected conduct." Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). But "[a] plaintiff's standing to bring a case does not depend upon his ultimate success on the merits underlying his case," because otherwise "`every unsuccessful plaintiff will have lacked standing in the first place.'" Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 429 (4th Cir. 2007) (quoting White Tail Park, 413 F.3d at 461).
The district court thus did not err in holding that Green possesses standing to mount a facial challenge to the amended ordinances.
...
To continue reading
Request your trial
-
Sansotta v. Town of Nags Head
...access to Seagull Drive was substantially related to public safety and was not arbitrary or irrational. See, e.g., Green v. City of Raleigh, 523 F.3d 293, 303 (4th Cir.2008) (recognizing significant governmental interest in traffic and safety); Sullivan v. City of Augusta, 511 F.3d 16, 37 (......
-
St. Michael's Media, Inc. v. Mayor and City Council of Baltimore
...some degree of constitutional scrutiny," and analyzing an assembly claim using the public forum framework); Green v. City of Raleigh , 523 F.3d 293, 297, 300-07 (4th Cir. 2008) (analyzing plaintiff's free speech and peaceable assembly challenges to a picketing ordinance together).Therefore,......
-
Ross v. Early
...and accessibility of its streets and sidewalks' ” is sufficient to justify a time, place, and manner regulation. Green v. City Of Raleigh, 523 F.3d 293, 301 (4th Cir.2008) (quoting Cox v. City of Charleston, 416 F.3d 281, 284 (4th Cir.2005)). Indeed, as described by the Supreme Court, “muni......
-
Stover v. Fingerhut Direct Mktg. Inc
...Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 94 L.Ed. 925 (1950) and Grayned, 408 U.S. at 110, 92 S.Ct. 2294); see also Green v. City of Raleigh, 523 F.3d 293, 306 (4th Cir.2008). Accordingly, Defendants' challenge to the WVCCPA must be rejected to the extent that it presents an overbreadth (2) ......