Speet v. Schuette

• Decision Date: 14 August 2013
• Docket Number: No. 12–2213.,12–2213.
• Citation: 726 F.3d 867
• Parties: James SPEET and Ernest Sims, Plaintiffs–Appellees, v. Bill SCHUETTE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

726 F.3d 867

James SPEET and Ernest Sims, Plaintiffs–Appellees,

v.Bill SCHUETTE, Defendant–Appellant.

No. 12–2213.

United States Court of Appeals,Sixth Circuit.

Argued: June 13, 2013.

Decided and Filed: Aug. 14, 2013.

Held Unconstitutional

M.C.L.A. § 750.167(1)(h)

ARGUED:Ann M. Sherman, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Miriam J. Aukerman, American Civil Liberties Union Fund of Michigan, Grand Rapids, Michigan, for Appellees. ON BRIEF:Ann M. Sherman, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Miriam J. Aukerman, American Civil Liberties Union Fund of Michigan, Grand Rapids, Michigan, Michael J. Steinberg, Daniel S. Korobkin, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, for Appellees.

Before: MARTIN and SUTTON, Circuit Judges; ADAMS, District Judge. ^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This appeal involves a facial challenge to the constitutionality, under the First and Fourteenth Amendments to the United States Constitution, of a Michigan statute that criminalizes begging. This appeal poses two issues. The first issue is whether begging is a form of solicitation that the First Amendment protects. We hold that it is. The second issue is whether, as the district court concluded, the statute violates—on its face—the First Amendment. We agree with the district court that it does. Michigan's anti-begging statute cannot withstand facial attack because it prohibits a substantial amount of solicitation, an activity that the First Amendment protects, but allows other solicitation based on content. Therefore, we AFFIRM the district court's judgment.

The Michigan anti-begging statute at issue in this case has existed since at least 1929. Mich. Comp. Laws § 900 (1929). The statute provides that “[a] person is a disorderly person if the person is any of the following: ... (h) A person found begging in a public place.” Mich. Comp. Laws Ann. § 750.167(1)(h) (West 2013). The statute criminalizes begging. A person convicted under section 750.167(1)(h) is “guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.” Mich. Comp. Laws Ann. § 750.168(1) (West 2013). According to the record, the police department in Grand Rapids, Michigan recorded four-hundred and nine reports of incidents of police enforcing this anti-begging ordinance from 2008–2011.

Among those whom the Grand Rapids police arrested under the anti-begging ordinance are the plaintiffs: James Speet and Ernest Sims, two homeless adult residents of Grand Rapids, Michigan. In January 2011, Speet was arrested for begging in Grand Rapids. He was holding a sign saying: “Cold and Hungry, God Bless.” The police gave Speet an appearance ticket, and he pleaded guilty to the charge. Unable to pay the $198 fine, Speet spent four days in jail. Then, in June 2011, Speet was holding a sign that said, “Need Job, God Bless,” while standing between a sidewalk and a street in Grand Rapids. The Grand Rapids police again arrested him for begging. After Speet secured pro bono counsel, the prosecution dismissed the begging charge.

On July 4, 2011, Sims needed money for bus fare, and asked a person on the street: “Can you spare a little change?” A Grand Rapids police officer witnessed Sims asking for change and immediately arrested him. After Sims, a veteran, requested that he not be taken to jail because it was the Fourth of July, the officer agreed to give him an appearance ticket. Later, Sims appeared without counsel in court on the begging charge. He pleaded guilty and was sentenced to pay a fine of $100. Speet and Sims are not the only people that have been fined or jailed under Michigan's anti-begging statute. The Grand Rapids Police Department, during 2008–2011, initiated three-hundred and ninety-nine cases by arresting or citing people for begging.

Speet and Sims sued Michigan Attorney General Bill Schuette, the City of Grand Rapids, and several of its police officers for declaratory and injunctive relief, alleging that Michigan's anti-begging statute violated—both facially and as applied—the First Amendment and the Fourteenth Amendment's Equal Protection Clause.

The complaint's first count asserted that Michigan's anti-begging law was “facially invalid under the First Amendment[;]” likewise, the complaint's third count asserted that Michigan's anti-begging law was “facially invalid under the Equal Protection Clause.” The complaint's second and fourth counts asserted that the statute violated the First and Fourteenth Amendments “as applied” to Speet and Sims.

Instead of moving for summary judgment on the as-applied claims, Speet and Sims moved for summary judgment on the facial claims. Speet v. Schuette, 889 F.Supp.2d 969, 972 (W.D.Mich.2012). Michigan also moved for summary judgment on these claims. Id. In a published opinion and order, the district court granted Speet's and Sims' motion for partial summary judgment. Id. at 980. Michigan Attorney General Bill Schuette filed a timely appeal.

We review de novo a district court's decision to grant summary judgment. Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 569 (6th Cir.2012) (citing Dillon v. Cobra Power Corp., 560 F.3d 591, 595 (6th Cir.2009)). A district court properly grants summary judgment when “ ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758, 761 (6th Cir.2010)). Here, the “parties agree[d] that there [was] no genuine issue of material fact regarding the facial challenge and that judgment as a matter of law [was] appropriate.” Speet, 889 F.Supp.2d at 972.

A facial challenge to a law's constitutionality is an effort “to invalidate the law in each of its applications, to take the law off the books completely.” Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir.2009) (en banc); see also Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“a ‘facial’ challenge ... means a claim that the law is ‘invalid in toto—and therefore incapable of any valid application.’ ” (quoting Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974))). In contrast to an as-applied challenge, which argues that a law is unconstitutional as enforced against the plaintiffs before the court, a facial challenge “is not an attempt to invalidate the law in a discrete setting but an effort ‘to leave nothing standing[.]’ ” Connection Distributing Co., 557 F.3d at 335 (en banc) (quoting Warshak v. United States, 532 F.3d 521, 528 (6th Cir.2008) (en banc)). Sustaining a facial attack to the constitutionality of a state law, as the district court did, is momentous and consequential. It is an “exceptional remedy.” Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir.2010).

Generally, to “succeed in a typical facial attack,” a plaintiff must establish “ ‘that no set of circumstances exists under which [the statute] would be valid.’ ” United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). Or, a plaintiff would have to establish that “the statute lacks any ‘plainly legitimate sweep [.]’ ” Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 740 n. 7, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Stevens, J., concurring)). Here, Attorney General Schuette argues that, to succeed in their facial attack, Speet and Sims must demonstrate that there is no conceivable manner in which the anti-begging statute can be enforced consistent with the First Amendment. While this is the general rule, an exception exists for facial challenges based on the First Amendment.

Where a plaintiff makes a facial challenge under the First Amendment to a statute's constitutionality, the “facial challenge” is an “overbreadth challenge.” Connection Distrib. Co., 557 F.3d at 335;see also City of Houston, Tex. v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (“Only a statute that is substantially overbroad may be invalidated on its face.” (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))). Instead of having to prove that no circumstances exist in which the enforcement of the statute would be constitutional, the plaintiff bears a lesser burden: “to demonstrate that a ‘substantial number of instances exist in which the law cannot be applied constitutionally.’ ” Glenn v. Holder, 690 F.3d 417, 422 (6th Cir.2012) (quoting Richland Bookmart, Inc. v. Knox Cnty., 555 F.3d 512, 532 (6th Cir.2009)). Thus, “[t]he First Amendment doctrine of overbreadth is an exception to [the] normal rule regarding the standards for facial challenges.” Virginia v. Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (citing Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)).

And in a facial challenge, a plaintiff must show substantial overbreadth: that the statute prohibits “ ‘a substantial amount of protected speech both in an absolute sense and relative to [the statute's] plainly legitimate sweep[.]’ ” Carey v. Wolnitzek, 614 F.3d 189, 208 (6th Cir.2010) (quoting Connection Distrib. Co., 557 F.3d at 336). We have acknowledged that “[T]he concept of ‘substantial overbreadth’ ” has “some elusive qualities[.]” Connection Distrib. Co., 557 F.3d at 340;see also Taxpayers for Vincent, 466 U.S. at 800, 104 S.Ct. 2118 (“[t]he concept of ‘substantial overbreadth’ is not readily reduced to an exact definition.”). But the doctrine of...