Lutz v. CITY OF YORK, PA.

• Decision Date: 18 August 1988
• Docket Number: Civ. A. No. 88-1100.
• Citation: 692 F. Supp. 457
• Parties: David D. LUTZ, Plaintiff, v. CITY OF YORK, PENNSYLVANIA, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

692 F. Supp. 457

David D. LUTZ, Plaintiff, v. CITY OF YORK, PENNSYLVANIA, Defendant.

Civ. A. No. 88-1100.

United States District Court, M.D. Pennsylvania.

August 18, 1988.

William Anderson, Steve Zorbaugh, Daniel M. Fennick, Anderson, Converse & Fennick, P.C., York, Pa., for plaintiff.

Robert J. Katherman, Edward C. Roberts, York, Pa., for defendants.

MEMORANDUM

CALDWELL, District Judge.

Plaintiff, David D. Lutz, has filed a motion for a preliminary injunction, challenging the constitutionality of the defendant, City of York's, Cruising Ordinance. A hearing on the motion was held on August 5, 1988, the parties have submitted briefs and the motion is ready for disposition.

On April 19, 1988, the City of York enacted the Cruising Ordinance, prohibiting "unnecessary repetitive driving, also known ... as cruising." Ordinance No. 6, § 4. Cruising was defined in section 3(a) as follows:

driving a motor vehicle on a street past a traffic control point, as designated by the York City Police Department, more than twice in any two (2) hour period, between the hours of 7:00 p.m. and 3:30 a.m. The passing of a designated control point a third time under the aforesaid conditions shall constitute unnecessary repetitive driving and therefore a violation of this Ordinance.

Section 3(b) of the Ordinance defined the designated area, roughly a long narrow rectangular area of the City popularly known as the "Loop," "as Market Street from the 900 block west and eastward therefrom through and including the 1200 block east, and the 1200 block of east Philadelphia Street and westward through and including the 900 block west." The Ordinance excluded from its scope municipal and commercial vehicles and those used in public transportation. Section 5. It was enacted upon the following legislative findings:

It is hereby found that with consistency, on certain days and times, a threat to the public health, safety and welfare arises from the congestion created by repetitive unnecessary driving of motor vehicles on main thoroughfares within the City of York. The purpose of this Ordinance is to reduce the dangerous traffic congestion, as well as the excessive noise and pollution resulting from such unnecessary repetitive driving, and to ensure sufficient access for emergency vehicles to and through the designated city thoroughfares now hampered by this repetitive driving of motor vehicles.

Plaintiff claims the Ordinance violates the constitutional rights to travel and of association. He also claims that the Ordinance is overbroad. He seeks a preliminary injunction against its enforcement. To obtain the injunction, plaintiff must show:

(1) a reasonable probability of eventual success in the litigation and (2) that the movant will be irreparably injured pendente lite if relief is not granted. Moreover, while the burden rests upon the moving party to make these two requisite showings, the district court "should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest."

Professional Plan Examiners v. LeFante, 750 F.2d 282, 288 (3d Cir.1984) (quoting In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir.1982)).

In support of his claim that the Ordinance violates the constitutional right to travel, plaintiff cites, among other cases, Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) and Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Defendant argues that these cases are factually distinguishable and involve administrative actions or statutes hindering the right to travel abroad or to move between the various states. Here, in contrast, plaintiff only seeks to vindicate his right to travel on city streets solely for his amusement.

We agree with defendant that plaintiff is not asserting the right to travel as it has been commonly understood in prior cases. In those actions travel has typically referred to migration. See Carmouche v. Bethlehem Steel Corp., 450 F.Supp. 1361 (D.Nev.1978). Nevertheless, plaintiff has asserted a liberty interest which has been recognized by this court in the past. In Bykofsky v. Borough of Middletown, 401 F.Supp. 1242 (M.D.Pa.1975), aff'd without opinion, 535 F.2d 1245 (3d Cir.) (table), cert. denied, 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976), plaintiff challenged a curfew ordinance for minors. In discussing the nature of the right asserted, the court stated:

The rights of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others are basic values "implicit in the concept of ordered liberty" protected by the due process clause of the fourteenth amendment. citations omitted. One may be on the streets even though he is there merely for exercise, recreation, walking, standing, talking, socializing, or any other purpose that does not interfere with other persons' rights.

No right is more sacred, or is more carefully guarded, by the liberty assurance of the due process clause than the right of every citizen to the possession and control of his own person, free from restraint or interference by the state. The makers of our Constitution conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized man. Union Pacific Railway Company v. Botsford, 1891, 141 U.S. 250, 251, 11 S.Ct. 1000 1001, 35 L.Ed. 734; Olmstead v. United States, 1928, 277 U.S. 438, 478, 48 S.Ct. 564 572, 72 L.Ed. 944 (Brandeis, J., dissenting). Uninhibited movement is essential to freedom. Baker v. Bindner, W.D.Ky.1967, 274 F.Supp. 658, 662; see Aptheker v. Secretary of State, 1964, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992.

Id. at 1254-55 (brackets added). See generally Papachristou, supra.

We recognize that defendant would distinguish pedestrians strolling and meeting on the sidewalk from persons operating motor vehicles on the streets but we reject this argument. Motor vehicles are a lawful means of locomotion and plaintiff has the right to drive himself where he pleases—to go where he wants to go for whatever reason—if he is otherwise obeying the law, including relevant traffic statutes and ordinances. Plaintiff has therefore asserted a valid liberty interest.

Plaintiff also claims that the ordinance violates the right of association. Plaintiff and another witness testified that people cruised, in part, to meet and socialize with others, but he has not specified what aspect of the constitutional right of association has been violated by the Ordinance. The Supreme Court has:

afforded constitutional protection to freedom of association in two distinct senses. First, the Court has held that the constitution protects against unjustified government interference with an individual's choice to enter into and maintain certain intimate or private relationships. Second, the Court has upheld the freedom of individuals to associate for the purpose of engaging in protected speech or religious activities.

Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, ___, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474, 483 (1987); see also Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.1988).

Plaintiff has not stated a valid claim based upon his right to maintain an intimate association. A random meeting with other cruisers, even those who could be considered friends, is not the type of association protected by the constitution. See Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.1988).

Rode also disposes of any "expressive association" claim, see New York State Club Ass'n, Inc. v. City of New York, ___ U.S. ___, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988), that could be asserted. This second type of claim protects "associations formed for the purpose of engaging in activities protected by the first amendment, such as the exercise of speech, assembly and religion." Rode, 845 F.2d at 1204. Plaintiff did not present any evidence establishing that the brief associations formed when cruisers encountered each other on the street had as their purpose any activity protected by the first amendment. At best, the activity could be understood as socializing, but under Rode that is insufficient to assert the protection of the constitutional right of association. Accord IDK, Inc. v. County of Clark, 836 F.2d 1185, 1195 (9th Cir.1988) (escort services' claim of expressive association denied when they made "no claim that expression is a significant or necessary component of their activities.").

Because plaintiff has only established a liberty interest in being able to drive freely about, we will examine his attack upon the Ordinance only to see whether the enactment is rationally related to a legitimate governmental objective. See Bykofsky, supra. Cf. Baldwin v. Fish and Game Commission, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978) (A higher hunting fee imposed upon nonresidents of Montana does not violate the privileges and immunities clause of the Constitution because, in part, hunting is recreational and not necessary to the well-being of the Nation or to the nonresidents' livelihood. Additionally, a statutory classification which does not intrude upon a fundamental right need not be drawn with precision to meet an equal protection challenge.). Compare Memorial Hospital v. Maricopa County, 415 U.S. 250, 262 and n. 21, 94 S.Ct. 1076, 1084 and n. 21, 39 L.Ed.2d 306, 317 and n. 21 (1974); Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986) (plurality opinion).

The rational relationship test is easily met in this case. The legislative findings indicate that the City wanted to prevent, in part, the threat to public safety created by the traffic congestion arising from cruising traffic. These...