Lytle v. Brewer
| Decision Date | 22 December 1999 |
| Docket Number | No. Civ.A. 2:99cv1366.,Civ.A. 2:99cv1366. |
| Citation | 77 F.Supp.2d 730 |
| Parties | David LYTLE, Jeanette Lytle, and Joan Maguire, Plaintiffs, v. Charles BREWER, individually and in his official capacity as Lieutenant of the Norfolk Police Department; Charles D. Griffith, Jr., in his official capacity as Norfolk Commonwealth Attorney, and Hon. James S. Gilmore, III, in his official capacity as Governor of the Commonwealth of Virginia, Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Anthony S. Mulford, Davis & Brynteson, PC, Chesapeake, VA, Michael J. DePrimo, Stephen M. Crampton, Brian Fahling American Family Association Center for Law and Policy, Tupelo, MS, for plaintiff.
Jack E. Cloud, Harold P. Juren, City Attorney's Office, Norfolk, VA, for defendant Charles Brewer.
Kevin O. Barnard, Gregory E. Lucyk, William H. Hurd, Mark L. Earley, Office of the Attorney General, Richmond, VA, for defendant Charles D. Griffith, Jr.
Alison P. Landry, Kevin O. Barnard, Todd E. Lepage, Gregory E. Lucyk, William H. Hurd, Thomas J. Lambert, Mark L. Earley, Office of the Attorney General, Richmond, VA, for defendant Hon. James S. Gilmore, III.
This case involves constitutional challenges to Virginia Code Section 46.2-930, which prohibits loitering on certain bridges designated by the Commissioner of the Virginia Department of Transportation. The complaint was filed on August 27, 1999, and on the same day the plaintiffs moved the Court for a preliminary injunction. On November 2, the Court granted a preliminary injunction preventing the enforcement of the challenged statute. On the heels of the plaintiffs' motion for preliminary relief, Lt. Charles Brewer, moved to dismiss the claims against him in his official capacity, and for summary judgment as to claims against him in his individual capacity.
The Court did not consider the merits of Brewer's motions during the review of the motion for preliminary relief because the briefing had not been completed. On November 3, the Court conducted a hearing on Brewer's motions and took the motions under advisement. The Court has since thoroughly considered the legal issues raised in Brewer's motions, and for the reasons set forth below, the Court hereby GRANTS the motions dismissing the claims against Brewer both in his individual capacity and in his official capacity.
The general facts giving rise to the claims in this case were set forth in the Court's November 2 Opinion granting the plaintiffs' motion for preliminary relief. However, additional facts more specific to Brewer and his involvement with the July 16 protest as the police officer from the Norfolk Police Department in charge are necessary for the Court's review of the pending motions. The facts set forth below are taken from the plaintiffs' complaint, and where summary judgment is at issue, the facts are additionally taken from Brewer's affidavit submitted in support of his motion for summary judgment, the video of the July 16 protest and arrest submitted by the plaintiffs in opposition, along with the attached affidavits of plaintiffs' counsel, Michael DePrimo, the videographer, Ronald Brock, and a fellow protestor, Dennis Greene.
On July 16, Brewer, a police officer with more than 25 years of experience, was notified by the police dispatcher that there was a group of protestors located on the Piccadilly Overpass in Norfolk. After informing his supervisors of the ongoing protest, Brewer was instructed to proceed to the scene of the protest and to order all protestors to either leave or face charges under Virginia's Code Section 46.2-930. Brewer claims that until his discussions with his supervisor on July 16, he was not aware of this statute.
Brewer submits that prior to leaving the police station, he made copies of Section 46.2-930 for the protestors he anticipated. By the time Brewer arrived at the overpass, a Virginia state trooper had already arrived. Brewer noted the existence of "No Loitering" sign at each entrance to the overpass. Brewer claims that he observed the traffic traveling below the overpass at 4:30 p.m. on July 16, and that it was "heavy," presumably indicative of a normal rush hour traffic on Interstate 64. Brewer claims that when he arrived, traffic was beginning to "back up" and that he heard several cars with tires "squealing."
The majority of the protestors on the overpass were either carrying or had posted on the overpass large signs, some depicting pictures expressing their opposition to abortion. The signs were propped against the overpass fencing and were directed at the oncoming traffic. Brewer claims that based on his observations, he believed the protestors were intentionally attempting to distract the cars traveling on the Interstate. After observing the scene, Brewer, together with the Virginia State Trooper, approached the protestors, and provided each protestor with a copy of Va.Code Ann. § 46.2-930, the anti-loitering statute applicable to designated bridges. As set forth fully in the Court's November Opinion, after receipt of a copy of the challenged statute and some explanation from Lt. Brewer, the plaintiffs ceased their protest and vacated the pedestrian bridge. However, two of their fellow-protestors not party to this case refused to cease protests and as a result, were arrested by Lt. Brewer.
Based on the posted signs and his instructions from his supervisor, Brewer submits that on July 16 he believed that the challenged statute was in effect as to the overpass in question. He additionally claims that he was unaware of any case law or precedent regarding the validity of similar loitering statutes. Finally, and not surprisingly, Brewer claims that he has not received training regarding the constitutionality of the statute. However, subsequent to events on July 16, on August 30, Brewer was informed that the Norfolk City Attorney had instructed the Police Department to cease enforcement of the statute. Brewer also states that he was present in the Norfolk District Court on September 9, 1999, when the charges pending against the two protestors who had been arrested on July 16 were nolle prossed.
Brewer's motion to dismiss has two focuses. First, as to the claims against Brewer in his individual capacity, he argues that the claims should be dismissed and summary judgment should be granted pursuant to the doctrine of qualified immunity. Second, as to the claims against Brewer in his official capacity, he argues that the plaintiffs have failed to state a claim for which relief can be granted, and even if they had, that he is not the proper defendant as a policy maker for the City of Norfolk.
Brewer moves for summary judgment as to the claims pending against him in his individual capacity; i.e., those claims related to Brewer's actions on July 16 contained in Counts 1 and 2. Specifically, Brewer requests that the Court grant summary judgment based on a finding of qualified immunity.
The standard for granting summary judgment is met if after a review of all of the pleadings, depositions, affidavits and other documents submitted by the parties, the court finds that there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Roe v. Doe, 28 F.3d 404, 406 (4th Cir.1994). To find against the movants, the Court must find both that the facts in dispute are material and that the disputed issues are genuine. As for materiality, the factual dispute must be dispositive of the claim. See Thompson Everett, Inc. v. National Cable Advertising, L.P., 57 F.3d 1317, 1323 (4th Cir. 1995). Similarly, the genuineness of the factual dispute must be more than a dispute based on speculation or inference. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (); Runnebaum v. NationsBank of Md., N.A., 123 F.3d 156, 164 (4th Cir.1997).
In support of their conflicting positions, Brewer, submitted an affidavit, and the plaintiffs submitted a video of the protest and subsequent arrest by Brewer. In considering the motion for preliminary relief, the Court reviewed both of these evidentiary items. In the plaintiffs' opposition memorandum to Brewer's motion, the plaintiffs specifically referred to facts outside of the pleadings and made certain arguments regarding "disputes of fact." However, at the hearing on this matter, the plaintiffs objected to Brewer's motion for summary judgment, and asked the Court to defer a decision until the completion of discovery. Based on the analysis that follows, the Court finds that summary judgment is appropriate as to the claims for individual liability and that discovery will not change the Court's determination.
Brewer has additionally moved to dismiss the official capacity claims pending against him pursuant to Fed.R.Civ.P. 12(b)(6). When ruling on a motion to dismiss for failure to state a claim for which relief can be granted, the facts should be taken as true and construed in the light most favorable to plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Dismissal should be granted when movant demonstrates that the plaintiff's allegations cannot support the claims brought even in the light most favorable to the plaintiff. Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989); District 28, United Mine Workers of America, Inc. v. Wellmore Coal Corp., 609 F.2d 1083 (4th Cir.1979).
Brewer argues that he is entitled to qualified immunity regarding the plaintiffs' claims that he personally violated their...
To continue reading
Request your trial
-
Lytle v. Doyle
...because the loitering statute could not apply to demonstrators engaged in protected First Amendment activity. See Lytle v. Brewer, 77 F.Supp.2d 730, 737-38 (E.D.Va.1999).5 Having concluded that the plaintiffs' constitutional rights were violated, the court turns to whether the City police a......
-
Bruce & Tanya & Assocs., Inc. v. Bd. of Supervisors of Fairfax Cnty.
...on government property (such as land "within the limits of the highway") depends on the nature of that property. Lytle v. Brewer, 77 F.Supp.2d 730, 735-36 (E.D. Va. 1999) (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ). "Traditi......
-
Rinehart v. State, 2D99-4642.
...(6th Cir.1990); Fields v. City of Omaha, 810 F.2d 830 (8th Cir.1987); Waldron v. McAtee, 723 F.2d 1348 (7th Cir.1983); Lytle v. Brewer, 77 F.Supp.2d 730 (E.D.Va.1999); Bernstein v. Aivazis, 584 F.Supp. 606 (D.N.J.1983); Johnson v. McTigue, 122 F.R.D. 9 (S.D.N.Y.1986); Lawrence v. Schaefer, ......
-
Faustin v. City & Cnty. of Denver
...grid, and pedestrians use it as a gateway to the other side of the highway. In a case analogous to the case at bar, Lytle v. Brewer, 77 F. Supp. 2d 730 (E.D. Va. 1999), a group displayed anti-abortion signs on a pedestrian overpass running over a highway. The court, noting that "nothing in ......