Reyes v. City of Lynchburg

Citation300 F.3d 449
Decision Date06 August 2002
Docket NumberNo. 98-2690.,No. 98-2583.,98-2583.,98-2690.
PartiesJohn Daniel REYES, Plaintiff-Appellant, and Keith Tucci, Plaintiff, v. CITY OF LYNCHBURG, Defendant-Appellee, and William G. Petty, in his official capacity as Commonwealth Attorney for the City of Lynchburg, Virginia, Defendant. John Daniel Reyes; Keith Tucci, Plaintiffs-Appellees, v. City of Lynchburg, Defendant-Appellant, and William G. Petty, in his official capacity as Commonwealth Attorney for the City of Lynchburg, Virginia, Defendant.
CourtU.S. Court of Appeals — Fourth Circuit

Stephen Melvin Crampton, American Family Association Law Center, Tupelo, Mississippi, for Appellant. Alexander Wayne Bell, Alexander Bell, P.L.C., Lynchburg, Virginia, for Appellee.

ON BRIEF:

Brian Fahling, Michael J. DePrimo, American Family Association Law Center, Tupelo, Mississippi, for Appellant. Mary V. Barney, Alexander Bell, P.L.C., Lynchburg, Virginia, for Appellee.

Before WIDENER and MICHAEL, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge WIDENER wrote the majority opinion, in which Senior Judge HAMILTON concurred. Judge MICHAEL wrote a dissenting opinion.

OPINION

WIDENER, Circuit Judge.

Plaintiff John D. Reyes appeals the district court's grant of summary judgment to the City of Lynchburg ("the City") on Reyes's 42 U.S.C. § 1983 claim. Reyes sought nominal damages under § 1983, an injunction against future enforcement of the City's parade ordinance, and a declaration that the City's parade ordinance was unconstitutional on its face and as applied to him. The district court found the City's parade ordinance defective because it did not provide one adequate procedural safeguard; however, the court held that Reyes could not sustain a valid claim under § 1983 because the City did not violate Reyes's constitutionally protected interests. We affirm the grant of summary judgment to the City.1

I.

On November 10, 1997, Reyes, along with other protesters, held an anti-abortion protest on and around the grounds of a public high school in Lynchburg, Virginia. None of the protesters had applied for or received a parade permit under the City's parade ordinance. A grand jury indicted Reyes for violating the ordinance, trespassing on school property and engaging in disorderly conduct. Reyes was found guilty of trespass only in the Circuit Court of the City of Lynchburg.2

The parade ordinance provided that "[i]t shall be unlawful for any person to conduct or participate in a parade ... on the public streets, sidewalks ... for which a written permit has not been issued in accordance with the provisions of this article." Lynchburg, Va., Code art. X, § 25-374.1 (repealed March 10, 1998). On February 27, 1998, Reyes and Keith Tucci filed a complaint in the district court pursuant to § 1983 challenging the constitutionality of the parade ordinance on its face and as applied to Reyes and seeking declaratory relief and an injunction prohibiting the City from enforcing the parade ordinance in the future. Reyes and Tucci also alleged that they planned another protest but feared arrest, criminal and/or civil prosecution and penalties under the parade ordinance and were thereby "deterred and chilled in the exercise of their fundamental constitutional rights." For damages, Reyes claimed: "Award to John Reyes nominal damages...." A.18. On June 24, 1998, the district court found that because the City repealed the parade ordinance on March 10, 1998, the action for declaratory relief was moot.3 The court dismissed Tucci as a party to the action, but denied the City's motion to dismiss as to Reyes, reasoning that Reyes's § 1983 claim for nominal damages created a live controversy. Tucci is not a party to this appeal.

The parties filed cross-motions for summary judgment. After a hearing, the district court granted the City's motion. Due to the court's prior ruling that the case was moot as to future conduct, the court found that a facial challenge to the parade ordinance was moot as well. The court entertained Reyes's claim that the parade ordinance was unconstitutional as applied to him and found that the parade ordinance was defective.4 Despite this finding, the court held that the City did not violate Reyes's First Amendment rights or his Fourteenth Amendment due process rights and granted summary judgment to the City.

We review de novo the district court's grant of summary judgment to the City, viewing the evidence in the light most favorable to the nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Although we affirm the district court's decision to grant summary judgment to the City, we do so on different reasoning than relied upon by the district court. Securities & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

II.

Reyes asserts the following issues in this appeal: 1) the City's parade ordinance is facially unconstitutional because it lacks adequate procedural safeguards and is overbroad, 2) the parade ordinance is unconstitutional as applied to him, and 3) the court erred in relying upon affidavits of City officials. The City cross appeals the court's finding that the parade permit was procedurally defective and asks this court either to affirm the district court's grant of summary judgment to the City or to dismiss the case as moot.

We first address whether the district court properly refused to examine Reyes's overbreadth challenge to the parade ordinance upon determining that the challenge was moot. On June 24, 1998, the court ruled that the case was moot as to future application of the parade ordinance because the City had repealed it and promised not to reenact a similar one. We agree with the district court that the repealed parade ordinance cannot now, if it ever did, reach any amount of constitutionally protected conduct.5 The question of overbreadth does not present a live case or controversy for this court. There is no reasonable expectation that Lynchburg will reenact the ordinance. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), see also Telco Communications, Inc. v. Carbaugh, 885 F.2d 1225, 1231 (4th Cir.1989).

We next address Reyes's other assertions about the repealed parade ordinance and the grounds for his § 1983 action. As an initial matter, we note that Reyes sought nominal damages from the City under § 1983. Nominal damages may be available in a § 1983 case if a plaintiff was deprived of an absolute right yet did not suffer an actual injury. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (holding that the right to procedural due process is absolute making the deprivation of the right actionable for nominal damages without proof of actual injury). Reyes claims the City violated his First Amendment right to free speech and his Fourteenth Amendment due process rights by applying the parade ordinance, which he asserts was unconstitutional, against him.6 The district court considered Reyes's challenge to the parade ordinance as applied to Reyes and found it did not provide a specified time for the chief of police to act upon the application for a parade permit and found the ordinance defective because it did not provide adequate procedural safeguards. Without such safeguards, the court determined that the ordinance posed a danger of impermissibly restraining free speech rights.

The parade ordinance in question provided in pertinent part:

(a) The chief of police, or his designee, shall issue the permit if the proposed parade, assemblage or picketing will not endanger public health, welfare, or safety, applying the following criteria and finding that:

(1) the time, duration, route and size of the parade ... will not unreasonably interrupt the safe and orderly movement of ... traffic;

(2) the parade ... is not of such a nature that it will require diversion of so great a number of police or fire personnel to properly police the line of movement in the areas contiguous thereto so as to impair the normal protection of the remainder of the [C]ity;

(3) the applicant has provided for the services of monitors sufficient to control the orderly conduct of the parade ... in conformity with such permit;

(4) the conduct of the parade ... will not unduly interfere with the proper fire and police protection of, or ambulance service to, the remainder of the [C]ity, or unreasonably disrupt other public services and protection normally provided to the [C]ity; and

(5) the parade ... will not interfere with another parade ... for which a permit has been granted.

(b) If the chief of police, or his designee, disapproves the application, he shall mail to the applicant a notice of his action, stating the reasons for his denial of the permit.

(c) Nothing in this article shall permit the chief of police, or his designee, to deny a permit based upon political, social, or religious grounds or reasons or based upon the content of the views expressed.

Lynchburg, Va., Code art. X, § 25-374.3 (repealed March 10, 1998) (emphasis added).

The other sections of the parade ordinance germane to the analysis are: any person desiring to conduct a parade must make an application to the chief of police 48 hours prior to the parade, § 25-374.2(a); the chief of police has the authority to consider applications filed less than 48 hours prior to the parade where the applicant shows good cause, § 25-374.2(c); and an applicant whose permit was disapproved may appeal to the City Manager within 48 hours, and the City Manager must act on the appeal within five working days after its receipt, § 25-374.7.

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