Kelly v. City of Parkersburg
| Decision Date | 16 October 2013 |
| Docket Number | Civil Action No. 6:13–cv–23260. |
| Citation | 978 F.Supp.2d 624 |
| Parties | Charles KELLY, Plaintiff, v. CITY OF PARKERSBURG, et al., Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
OPINION TEXT STARTS HERE
Sarah Austin Rogers, American Civil Liberties Union of West Virginia Foundation, Charleston, WV, Walt Auvil, Rusen & Auvil, Parkersburg, WV, for Plaintiff.
Johnnie E. Brown, S. Andrew Stonestreet, Pullin Fowler Flanagan Brown and Poe, Charleston, WV, for Defendants.
Pending before the court is the plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction [Docket 5]. On October 2, 2013, I entered a Temporary Restraining Order [Docket 13] prohibiting the defendants from enforcing Parkersburg Codified Ordinance 347.28. I held a hearing on October 9, 2013, to determine whether to enter a preliminary injunction. For the reasons described below, the plaintiff's motion is GRANTED. The defendants are ENJOINED from enforcing Parkersburg Codified Ordinance 347.28 pending a trial on the merits.
The plaintiff, Charles Kelly, argues that Parkersburg's Ordinance 347.28 unconstitutionally restricts his First Amendment right to solicit charitable donations at city intersections. Mr. Kelly is a disabled Vietnam veteran who seeks to solicit charitable donations to supplement his fixed income. (Verified Compl. [Docket 1] ¶¶ 13, 17, 18). In September 2012, he solicited donations on the sidewalk at the intersection of 6th Street and Ann Street in downtown Parkersburg, West Virginia. ( Id. ¶ 20). Mr. Kelly held a sign that read, “Disabled Veteran, Please Help, God Bless.” ( Id.). Mr. Kelly remained on the sidewalk for approximately three hours until a Parkersburg police officer cited him for violation of Ordinance 761.03, requiring him to pay a fine of $137.00. ( Id. ¶ 22).
Ordinance 761.03 was repealed by the Parkersburg City Council on December 11, 2012. ( Id. ¶ 31). The resolution repealing Article 761 specified that a different provision,Ordinance 347.28, had earlier been enacted “in the place of” Article 761. ( Id. ¶ 31). The Parkersburg City Attorney subsequently directed police officers to “issue all future citations for solicitation under 347.28 of the City Code.” (Verified Compl., Ex. B, Attach. 7 [Docket 10–7], at 2). Ordinance 347.28 provides as follows:
347.28 RESTRICTION ON THE SOLICITATION OF MONEY
It shall be unlawful for any person, firm, corporation, organization or association to solicit money or contributions for any purpose in an intersection, or in that portion of the public right of way that is within twenty feet of an intersection, on or upon the following streets: [the ordinance lists fourteen streets].
Mr. Kelly “wishes to engage in peaceful solicitation of funds in the future” in the locations listed under Ordinance 347.28 without fear of citation, arrest, or prosecution. ( Id. ¶ 37). He alleges that he has refrained from soliciting donations in the areas covered by Ordinance 347.28 because he fears citation, arrest, and prosecution. ( Id. ¶ 44). In his Verified Complaint, Mr. Kelly brings four claims in relation to the Ordinance: (1) a facial challenge under the First Amendment right to freedom of speech, (2) an as-applied challenge under the First Amendment right to freedom of speech, (3) an as-applied challenge under the Fourteenth Amendment Equal Protection Clause, and (4) an as-applied challenge under the Fourteenth Amendment Due Process Clause. ( Id. ¶¶ 76–93). He brings this motion to enjoin the city of Parkersburg and the Parkersburg Chief of Police from enforcing Ordinance 347.28 until a trial can be held on the merits of his claims.
The United States Supreme Court and the United States Court of Appeals for the Fourth Circuit have provided district courts with a precise analytical framework for determining whether to grant a preliminary injunction. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 345–47 (4th Cir.2009), vacated on other grounds,559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010). First, plaintiffs must make a clear showing that they will likely succeed on the merits. The Real Truth About Obama, Inc., 575 F.3d at 346. Second, plaintiffs must make a clear showing that they are likely to be irreparably harmed absent preliminary relief. Id. Third, plaintiffs must show that the balance of equities tips in their favor. Id. Finally, the plaintiffs must show that an injunction is in the public interest. Id. All four requirements must be satisfied for a preliminary injunction to be appropriate. Id.
Although the parties focus most of their arguments on whether the plaintiff is likely to succeed on the merits, the defendants contest each of the four requirements for obtaining a preliminary injunction.
Charitable solicitation by individuals is protected by the First Amendment. See Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Clatterbuck v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir.2013) (). The primary dispute between the parties is whether Ordinance 347.28 is a content-based or content-neutral restriction. Content-based restrictions are subject to strict scrutiny. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Clatterbuck, 708 F.3d at 555. Content-based restrictions will pass constitutional muster only if they are “necessary to serve a compelling state interest,” Perry, 460 U.S. at 45, 103 S.Ct. 948, and they are the least restrictive means of achieving that compelling state interest, see Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). On the other hand, mere “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication” are permitted. Perry, 460 U.S. at 45, 103 S.Ct. 948.
In evaluating whether a regulation is a content-based restriction, the Fourth Circuit has adopted a pragmatic, rather than formalistic, test. See Clatterbuck, 708 F.3d at 556;Brown v. Town of Cary, 706 F.3d 294, 302–04 (4th Cir.2013). Under this test, a district court should first determine whether a regulation facially distinguishes based on content. Cf. Clatterbuck, 708 F.3d at 556 (). If the court determines that the regulation facially distinguishes based on content, it must then determine whether the regulation distinguishes “ because of content.” Brown, 706 F.3d at 304. “[A] distinction is only content-based if it distinguishes content with a censorial intent to value some forms of speech over others....” Clatterbuck, 708 F.3d at 556 (internal quotation omitted). One way to determine whether a regulation distinguishes content with a censorial intent is to examine whether it is “justified without reference to the content of regulated speech.” Brown, 706 F.3d at 303 (quoting Hill v. Colorado, 530 U.S. 703, 720, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)). If a regulation is “justified without reference to the content of regulated speech ... even if it facially differentiates between types of speech,” it will not be treated as a content-based restriction. Brown, 706 F.3d at 303 (). In other words, the district court should examine whether the government has asserted a content-neutral purpose for the regulation. See Clatterbuck, 708 F.3d at 556.
However, “the mere assertion of a content-neutral purpose” is not enough. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642–43, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). A regulation that makes content distinctions will be treated as content neutral only if the government can demonstrate a “reasonable fit” between a legitimate content-neutral government interest and the content distinction at issue. Brown, 706 F.3d at 303. This approach is illustrated by Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality), where the United States Supreme Court invalidated an ordinance that generally prohibited outdoor signs, but allowed onsite commercial advertising. See id. at 493–494, 521, 101 S.Ct. 2882. San Diego's stated purpose for the regulation was aesthetics and traffic safety. Id. at 493, 101 S.Ct. 2882. In determining that San Diego had discriminated based on content, the Court stated that the city failed to “explain how or why noncommercial billboards located in places where commercial billboards are permitted would be more threatening to safe driving or would detract more from the beauty of the city.” Id. at 513, 101 S.Ct. 2882. Interpreting Metromedia, the Fourth Circuit stated that “it was the relationship—or lack thereof—between the content distinction and the legislative end of traffic safety that convinced the ... Court that [San Diego] had discriminated for reasons of content.” Brown, 706 F.3d at 303. Accordingly, pursuant to the Fourth Circuit's practical inquiry, I will first determine whether Ordinance 347.28 makes content distinctions on its face. If I find that it does, I will then determine whether that content distinction is based on a censorial intent.
The defendants argue that the Ordinance does not discriminate based on content because it “prohibits solicitations for any purpose.” ...
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