Naacp Anne Arundel County v. City of Annapolis

• Decision Date: 30 March 2001
• Docket Number: No. CIV CCB-00-771.,CIV CCB-00-771.
• Parties: NAACP ANNE ARUNDEL COUNTY BRANCH, et al. v. CITY OF ANNAPOLIS
• Court: U.S. District Court — District of Maryland

Page 795

133 F.Supp.2d 795

NAACP ANNE ARUNDEL COUNTY BRANCH, et al. v. CITY OF ANNAPOLIS

No. CIV CCB-00-771.

United States District Court, D. Maryland.

March 30, 2001.

David Lubitz, Milissa Murray, Michael L. Spafford, Swidler Berlin Shereff Friedman, LLP, Washington, DC, Dwight H. Sullivan, Baltimore, MD, for Plaintiffs.

Jefferson L. Blomquist, Funk & Bolton, P.A., Balimore, MD, Paul G. Goetzke, Office of Law, Annapolis, MD, Curtis E. Gannon, Miguel A. Estrada, Gibson Dunn and Crutcher, LLP, Washington, DC, for Defendant.

MEMORANDUM

BLAKE, District Judge.

The plaintiffs, the NAACP Anne Arundel County Branch ("NAACP") and three named individuals, have challenged the constitutionality of an anti-loitering ordinance passed by the City of Annapolis ("City"). In that challenge, the plaintiffs allege that the ordinance is overbroad and vague, violates their substantive due process rights, and constitutes an unlawful delegation of legislative authority. Currently pending before the court are cross motions for summary judgment. The motions have been fully briefed, and a hearing was held on February 16, 2001. For the reasons that follow, the court will grant the plaintiffs' motion for summary judgment and deny the City's motion.

BACKGROUND

The Ordinance

On October 11, 1999, the Annapolis City Council adopted Ordinance No. 0-19-99 entitled "Drug-Loitering Free Zones." The ordinance amended the City Code by adding § 11.12.067 to Title 11 of Chapter 12. (Mem. Sup. Mot. for Sum. Jud. at 3, Ex. 2.) The ordinance itself was amended on March 13, 2000 by the passage of Ordinance No. 0-7-2000 ("the ordinance"). The amending ordinance altered the language of several provisions of the original law, but left intact its name and framework.¹ The amended ordinance is challenged in this case.

The ordinance sets out a procedure whereby the city council may designate certain areas in the city "Drug-Loitering Free Zones." (Ordinance § B.) That procedure is begun when a neighborhood association or private citizen submits an application to the city council. (Id. § B.1.)² "If ... the chief of police confirms that three or more arrests for drug-related activity have occurred in the area identified in the application during the twenty-four month period immediately preceding the date of the application," the city council "shall, by resolution, designate the area ... a Drug-Loitering Free Zone." (Id. §§ B.2-B.3.) The zone will be demarcated with signs. (Id. § B.4.) The designation terminates after 24 months unless the resolution is renewed. (Id. § B.5.)

The ordinance makes it a misdemeanor for "any person meeting any one of the three criteria set forth in Subsection D of this section who is loitering in a public place located within a posted Drug-Loitering Free Zone, to disobey the order of a police officer to move on." (Ordinance § C.) Subsection D of the ordinance then provides that:

[a]n officer shall not order a person to move on under Subsection C of this section unless one of the following circumstances shall exist:

1. The person is behaving in a manner indicating that the person is remaining at or in a public place located within a Drug-Loitering Free Zone for the purpose of engaging in drug-related activity as demonstrated by any of the following acts: repeatedly approaching vehicles or making hand signals associated with drug related activity to the drivers and/or passengers of vehicles; while in a vehicle, repeatedly calling or making hand signals associated with drug-related activity to individuals outside the vehicle; distributing small objects to other persons; exchanging currency for small objects; warning others of the arrival or presence of a police officer; concealing himself or herself or any small object from view; or engaging in a pattern of any other conduct normally associated by law enforcement agencies with the illegal distribution, purchase or possession of drugs; or

2. The police officer has received reliable information from a reliable source indicating that the person is engaging in drug-related activity in a Drug-Loitering Free Zone;³ or

3. The person is a known unlawful drug user, possessor, seller or buyer and is currently subject to a judicial order prohibiting his/her presence in a high drug activity geographic area.

If the person refuses to obey the order to move on, she is subject to arrest. (Id. § C.) If convicted of violating the statute, that person can be subjected to six months in prison, a $1000 penalty, or both. (Id. § E.)

To date, eight applications have been filed under the statute. Four of those applications have been approved, and four are still pending. (Mem. Sup. Mot. for Sum. Jud. at 6.) Each of the eight areas proposed for designation as a Drug-Loitering Free Zone appears to be in a community with predominantly African-American residents. (Pl.s' Reply, Ex. N.) The City has suspended enforcement of the ordinance pending the outcome of this litigation. (Mem. Sup. Mot. for Sum. Jud. at 6 n. 3.) Thus, no signs have been posted, and no arrests have been made under the ordinance.

The Lawsuit

The plaintiffs in this case are the NAACP and three individual residents of Annapolis, Larry Griffin, Kenith Dean, and Parris Lane. (Compl. ¶¶ 5-9.) They originally filed their complaint on February 16, 2000 in the Circuit Court for Anne Arundel County Maryland; accordingly, it challenged the unamended ordinance. (Mem. Sup. Pl.'s Opp. and Cross-Mot. at 5.) The defendants removed the case to this court before the amendments were passed. When they were passed, however, the amendments undermined several of the constitutional challenges. Accordingly, the plaintiffs filed an amended complaint in this court.⁴

In the amended complaint, the plaintiffs state four causes of action. They seek a declaration that the ordinance is unconstitutional and an injunction prohibiting its enforcement. Specifically, in Count I, they allege that subsections D.1 and D.3 of the ordinance are unconstitutionally overbroad in violation of the First and Fourteenth Amendments to the United States Constitution and Articles 24 and 40 of the Maryland Declaration of Rights. (Id. ¶¶ 40-42.) The second Count alleges that the same sections of the ordinance are unconstitutionally vague in violation of the same federal and state provisions. (Id. ¶¶ 44-46.) Count III alleges that subsection D.1 violates the Due Process Clause of the Fourteenth Amendment and Article 40 of the Maryland Declaration of Rights by impermissibly infringing on the plaintiffs' liberty rights. (Id. ¶¶ 48-49.) Finally, in Count IV, the plaintiffs allege that, because the City has no discretion to deny a properly-filed application, the ordinance constitutes an unlawful delegation of legislative authority in violation of the Due Process Clause, Maryland Constitution, Maryland Code, and Annapolis City Charter. (Id. ¶¶ 50-54.)

The City filed a motion for summary judgment in which it disputes the overbreadth, vagueness, substantive due process, and impermissible delegation challenges and alleges that the NAACP lacks standing to assert the claims on behalf of its members. The plaintiffs filed an opposition to that motion and a cross-motion for summary judgment. The City later filed a "Motion to Dismiss and Supplemental Motion for Summary Judgment" in which it argued for the first time that the individual plaintiffs each lack standing to sue on his or her own behalf. The motions are addressed below, beginning with the issue of standing.

STANDING

The standing challenge in this case is twofold. The City contends that each of the individual plaintiffs lacks standing to assert the claims in his or her own right and that the NAACP lacks standing to assert the claims as a representative of its members. These contentions overlap because the NAACP must show, as part of proving that it can assert representational standing, that its individual members would have standing to bring the suit on their own behalf. As explained by the Supreme Court,

[a]n association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit.

Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000) (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383, (1977)). See also Maryland Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1250-51 (4th Cir.1991). The NAACP has offered the declarations of three individual members as proof that each could assert standing individually.

Because the initial analyses are identical, the evaluations of the individual plaintiffs' and NAACP members' standing have been consolidated. To the extent that its individual members have standing, the analysis of the second two prongs of the organizational standing rubric is the same for all counts in the complaint as it applies to the NAACP.

I. Individual Plaintiffs and NAACP Members

To satisfy the "irreducible constitutional minimum of standing," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), an individual plaintiff has the burden to

show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Laidlaw, 528 U.S. at 180-81, 120 S.Ct. at 704. See also Defenders, 504 U.S. at 560, 112 S.Ct. at 2136. The City does not challenge standing based on the second or third prongs of the analysis, and the court...