McCoy v. City of Columbia, C/A No. 5:10–cv–00132–JFA.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: JOSEPH F. ANDERSON
• Citation: 929 F.Supp.2d 541
• Parties: Jonathan David McCOY, Plaintiff, v. CITY OF COLUMBIA, John K. Passmore, James Heywood, and Amanda H. Long, Defendants.
• Docket Number: C/A No. 5:10–cv–00132–JFA.
• Decision Date: 11 March 2013

929 F.Supp.2d 541

Jonathan David McCOY, Plaintiff,
v.
CITY OF COLUMBIA, John K. Passmore, James Heywood, and Amanda H. Long, Defendants.

C/A No. 5:10–cv–00132–JFA.

United States District Court,
D. South Carolina.

March 11, 2013.

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David W. Harwell, James Edward Bell, III, James Bernice Moore, III, Scott Christopher Evans, Bell Legal Group, Georgetown, SC, Robert Fredrick Goings, Goings Law Firm, Columbia, SC, for Plaintiff.

Peter M. Balthazor, City of Columbia, Matthew B. Rosbrugh, MBR Law, Columbia, SC, for Defendants.

ORDER
JOSEPH F. ANDERSON, JR., District Judge.
I. Introduction

Plaintiff Jonathan David McCoy (McCoy) brings this action against the above-captioned defendants pursuant to 42 U.S.C. § 1983 for violations of his First and Fourth Amendment rights which allegedly occurred during his arrest pursuant to City of Columbia Municipal Ordinance Section 10–34(b) (the Ordinance) on October 17, 2009. McCoy additionally seeks a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., that the Ordinance is unconstitutional on its face or as applied to him. Finally, McCoy brings tort claims against these defendants under South Carolina law for malicious prosecution, false imprisonment, and assault and battery.

This matter is before the court on the parties' several dispositive motions. In particular, McCoy has moved for partial summary judgment on the constitutionality of the Ordinance and, to the extent the Ordinance is unconstitutional, on his cause

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of action under § 1983. See ECF No. 201. Defendant City of Columbia (the City) has moved for judgment on the pleadings as to McCoy's § 1983 cause of action. The City has also moved for summary judgment on all of McCoy's claims. See ECF Nos. 200, 202. Defendants John K. Passmore, James Heywood, and Amanda H. Long (the Officer Defendants) have moved for summary judgment on McCoy's § 1983 and state law tort claims against them. See ECF No. 203.

The Magistrate Judge assigned to this matter heard argument on the parties' motions on December 11, 2012 and has prepared a Report and Recommendation. ¹See ECF No. 220. Her Report and Recommendation sets forth in detail the relevant facts and standards of review in this matter, and the court incorporates such without a recitation. In general, the Magistrate Judge recommended the following disposition of the parties' motions. First, the Magistrate Judge recommended that the court deny McCoy's motion for partial summary judgment on the constitutionality of the Ordinance. Next, regarding the City's motions, the Magistrate Judge recommended the court deny the City's motion for judgment on the pleadings and grant, in part, and deny, in part, the City's motion for summary judgment. Finally, the Magistrate Judge recommended that the court deny the Officer Defendants' motion for summary judgment. The parties timely filed extensive objections to the Report and Recommendation, see ECF Nos. 226, 228–29, and this court heard argument on the parties' objections on February 12, 2013. Thus, this matter is ripe for review.

After detailed consideration of the Report and Recommendation, the briefs of the parties, and the arguments held on the parties' objections, the court modifies the Report and Recommendation as set forth below. Additionally, the court adopts those portions of the Report and Recommendation which are not inconsistent with this Order.

II. DiscussionA. Constitutionality of the Ordinance

McCoy was arrested pursuant to City of Columbia Ordinance Section 10–34(b), which states: “It shall be unlawful for any person to interfere with or molest a police officer in the lawful discharge of his duties.” Focusing in particular on the phrase “interfere with” in the Ordinance, McCoy asserts that the Ordinance is facially unconstitutional as overly broad and/or vague. McCoy further asserts that the Ordinance is unconstitutional as applied to him in his arrest.

The Magistrate Judge first considered both the alleged overbreadth and vagueness of the Ordinance, and she recommended a ruling that the Ordinance is neither overly broad nor unduly vague in violation of the Constitution. Thus, with respect to McCoy's facial challenge, the Magistrate Judge recommended that the court deny McCoy's motion for summary judgment and grant the City's motion for summary judgment. The Magistrate Judge then reviewed McCoy's as-applied

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challenge and found that genuine issues of material fact preclude entry of summary judgment in favor of any of the parties.²

The legal standards for analyzing whether the Ordinance is unconstitutionally overbroad or vague are set forth in detail in the Report and Recommendation, and the court only briefly summarizes them here. First, regarding overbreadth, “[o]nly a statute which is substantially overbroad may be invalidated on its face.” City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (citing New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). Thus, the Supreme Court has “never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application.” Id. (quoting Broadrick, 413 U.S. at 630, 93 S.Ct. 2908) (internal quotation marks omitted). The requirement that the overbreadth be substantial “stems from the underlying justification for the overbreadth exception itself—the interest in preventing an invalid statute from inhibiting the speech of third parties who are not before the Court.” City Council of Los Angeles v. Vincent, 466 U.S. 789, 802, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). However, it is well-settled that the degree of permissible overbreadth depends on the nature of the statute or ordinance at issue. For example, criminal statutes, like the one at issue in this case, “must be scrutinized with particular care.” City of Houston, 482 U.S. at 459, 107 S.Ct. 2502 (citing Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840 (1948)). Thus, criminal statutes which “make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” Id.

Next, a statute is impermissibly vague if it either (1) “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or (2) “authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (citing City of Chicago v. Morales, 527 U.S. 41, 56–57, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)). The Supreme Court has explained that

[v]ague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.....

Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (internal footnote call numbers omitted). As with challenges based on overbreadth, in evaluating vagueness challenges, the Court has “expressed a greater tolerance of enactments with civil rather than criminal penalties because the

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consequences of imprecision are qualitatively less severe.” Village of Hoffman Estates v. Flipside, 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (citing Winters, 333 U.S. at 515, 68 S.Ct. 665). However, “a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Id. Finally, “perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” Id. Thus, although it is possible for a law which “does not reach constitutionally protected conduct” to be declared facially unduly vague, “[i]f, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Id. at 497, 499, 102 S.Ct. 1186.

In reviewing “a facial challenge to the overbreadth and vagueness of a law,” this court must first “determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Id. at 494, 102 S.Ct. 1186. Accordingly, the court will now examine the extent to which the Ordinance reaches constitutionally protected conduct. At the outset, it is important to understand that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston, 482 U.S. at 461, 107 S.Ct. 2502. Indeed, the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462–63, 107 S.Ct. 2502. Freedom of speech is protected against censorship and punishment precisely because “[s]peech is often provocative and challenging,” and “[i]t may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Speech directed at police officers may only be censored where it is “shown likely to produce a clear and present danger of a serious substantive evil...