Rodgers v. Stachey

Decision Date01 April 2019
Docket NumberCase No. 6:17-cv-06054
Citation382 F.Supp.3d 869
Parties Michael RODGERS, Plaintiff v. Jason STACHEY, in his Official Capacity as Chief of the Hot Springs, Arkansas Police Department, Defendant
CourtU.S. District Court — Western District of Arkansas

Bettina E. Brownstein, Bettina E. Brownstein Law Firm, Little Rock, AR, Monzer J. Mansour, Attorney at Law, Fayetteville, AR, for Plaintiff.

Mark Robert Hayes, Arkansas Municipal League, Michael A. Mosley, North Little Rock City Attorney's Office, North Little Rock, AR, Robert Justin Eichmann, Thomas N. Kieklak, Harrington Miller Neihouse Kieklak PA, Springdale, AR, Brian Wade Albright, Hot Springs City Attorney, Hot Springs, AR, for Defendant.



The City of Hot Springs, Arkansas has adopted an ordinance restricting communication by means of physical interaction between persons in public roadways within city limits. The ordinance distinguishes messages between pedestrians and vehicle occupants attempting to communicate and subjects these individuals to differential treatment. This Court now holds that the ordinance is a content-based regulation of speech that cannot survive strict scrutiny. Although the effort by the City to enact the ordinance does not meet constitutional requirements, the City is not to be criticized for its attempt protect the safety of its citizens and those who use the streets.

This matter is before the Court on a Motion for Summary Judgment filed by Plaintiff. ECF No. 31. Defendant has filed a Response in Opposition to Plaintiff's Motion (ECF. No. 34), and Plaintiff filed a Reply to Defendant's Response (ECF No. 39). Also, before the Court is Defendant's Motion for Summary Judgment (EDF No. 36), to which Plaintiff has filed a Response in Opposition (ECF No. 41), and Defendant has filed a Reply to Plaintiff's Response (ECF No. 42). This matter is ripe for the Court's consideration.


Plaintiff, a beggar and panhandler (as described in his pleadings), is a disabled veteran who has "resorted to begging in order to have enough money to live on." Pl.'s Mot. Summ. J., Ex. 1, ECF 31-1. Plaintiff regularly begs within the city limits of Hot Springs, Arkansas (the "City" herein), and has been doing so for several years. He has previously been cited, arrested and put in jail by the Hot Springs Police Department for begging alongside public roadways within City limits.1 He brings this constitutional challenge to an ordinance enacted by the City prohibiting physical interaction between the occupant of a motor vehicle and a pedestrian while the motor vehicle is in operation on a public roadway unless the vehicle is lawfully parked. HOT SPRINGS , ARK. , Ordinance No. 6217 (Dec. 5, 2017) ("the Ordinance"). Alleging the Ordinance was crafted with discriminatory intent against beggars and panhandlers, and claiming the Ordinance abridges his First Amendment right to free speech and is unconstitutionally vague under the Fourteenth Amendment, Plaintiff filed suit under 42 U.S.C. § 1983 seeking declaratory judgment that the Ordinance violates the United States Constitution on its face and to permanently enjoin its enforcement. The named defendant is Jason Stachey in his official capacity as Chief of Police. Plaintiff alleges the Ordinance is unconstitutional because it criminalizes protected speech. Plaintiff claims he is chilled from freely exercising his right to protected speech due to concerns about being warned, questioned, cited, arrested, jailed, prosecuted, found guilty and penalized by fines, penalties, imprisonment and court costs. Plaintiff also claims the Ordinance is unconstitutionally vague because the wording makes it unclear whether he is prohibited from begging on streets and roadways within City limits. Plaintiff seeks declaratory relief, monetary damages, and an award of Plaintiff's costs and attorneys' fees pursuant to 42 U.S.C. § 1988. (Second Am. Compl., ECF No. 26.)

Plaintiff originally filed the complaint in this case seeking to invalidate a completely different City ordinance. On September 6, 2016, the City enacted "An Absolute Ban on Solicitation" making it a crime for a person to "enter upon a roadway, median, or portion of a public street, or otherwise approaching a vehicle located in any portion of a public street or roadway for the purpose of soliciting anything from the occupant of a vehicle.2 " HOT SPRINGS , ARK. , Ordinance No. 6168 (Sept. 6, 2016) (Ordinance No. 6168 herein). Plaintiff was warned by a member of the Hot Springs Police Department that he would be taken to jail if he violated Ordinance No. 6168, and thereafter Plaintiff was afraid to beg within the City limits. (Pl's Mot. Summ. J, Ex. 1, ECF No. 31-1). On June 27, 2017, Plaintiff filed suit to invalidate Ordinance No. 6168 as unconstitutional. (Compl., ECF No. 1.) Plaintiff also filed a Motion for Preliminary Injunction seeking to prevent enforcement of the ordinance.3 (Pl.'s Mot. Prelim. Inj., ECF No. 5.) In its Response to the Motion for Preliminary Injunction, the City notified the Court, "that it will not enforce the existing ordinance [No. 6168] at issue in this case pending a determination on the merits, or a resolution of this case by the parties." (Def.'s Resp. to Pl.'s Mot. Prelim. Inj. at 1, ECF No. 15.) Based upon this representation and finding no threat of irreparable harm to Plaintiff, the Court denied Plaintiff's Motion for Preliminary Injunction by order entered July 19, 2017 (ECF No. 17). Plaintiff thereafter resumed panhandling "freely in the city without fear." (Pl.'s Mot. Summ. J., Ex. 1, ECF 31-1).

A few months later, the City enacted "An Ordinance to Promote Public Safety Within the Roadways and Public Streets of The City of Hot Springs, Arkansas, and for Other Purposes." HOT SPRINGS , ARK. , Ordinance No. 6217 (Dec. 5, 2017).4 On December 18, 2017, Plaintiff filed a First Amended and Substituted Complaint seeking to invalidate Ordinance No. 6217 as unconstitutional. (ECF No. 23.) A Second Amended and Substituted Complaint was filed on January 10, 2018 adding Todd Reid as a party plaintiff. (Sec. Am. Compl., ECF No. 26.) Reid identified himself as someone who "has given money to panhandlers while occupying a motor vehicle in operation on the public streets of Hot Springs." Id. at 3. Reid alleged that Ordinance No. 6217 chilled his First Amendment rights.5 Id.

Ordinance 6217 went into effect January 5, 2018.6 The City voluntarily agreed not to enforce Ordinance No. 6217 pending a final determination by this Court as to its validity. Plaintiff wishes to continue to beg in Hot Springs, and he continues to do so while the ordinance is not being enforced. Plaintiff is afraid that if the ordinance is enforced in the future, his right to freedom of expression will again be chilled as he will fear harassment and punishment by the City. (Pl.'s Mot. Summ. J., Ex. 1, ECF No. 31.) No criminal charges are currently pending against Plaintiff in the City. Id.


The Federal Rules of Civil Procedure provide that when a party moves for summary judgment:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a) ; Krenik v. Cnty. of Le Sueur , 47 F.3d 953, 957 (8th Cir. 1995). The Supreme Court has issued the following guidelines for trial courts to determine whether this standard has been satisfied:

The inquiry performed is the threshold inquiry of determining whether there is a need for trial—whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see also Agristor Leasing v. Farrow , 826 F.2d 732 (8th Cir. 1987) ; Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt. Pension Fund , 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution affects the outcome of the case. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252, 106 S.Ct. 2505.

The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank , 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The nonmoving party must then demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik , 47 F.3d at 957. A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials but must set forth specific facts showing that there is a genuine issue for trial. Anderson , 477 U.S. at 256, 106 S.Ct. 2505. "On cross-motions for summary judgment, the Court evaluates each motion independently to determine whether there exists a genuine dispute of material fact and whether each movant is entitled to judgment as a matter of law." Animal Legal Defense Fund v. Reynolds , 353 F.Supp.3d 812, 820 (S.D. Iowa 2019) (citing Sam's Riverside, Inc. v. Intercon Sols., Inc. , 790 F.Supp.2d 965, 975 (S.D. Iowa 2011) ).

A. Whether Plaintiff has Standing to Facially Challenge the Ordinance

To have standing under Article III, a plaintiff must have suffered an "injury in fact," defined as "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent." Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted.) There also must be a causal connection...

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  • Martin v. City of Albuquerque
    • United States
    • U.S. District Court — District of New Mexico
    • August 5, 2019
    ...content neutral, but argue that Subsections (D) and (E) are facially content based by relying heavily on Rodgers v. Stachey , 382 F.Supp.3d 869, 873-74 (W.D. Ark. 2019). In Rodgers , the court held that an ordinance containing a physical exchange ban nearly identical to Albuquerque's was co......

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