Watkins v. City of Arlington

• Decision Date: 12 August 2015
• Docket Number: Civil Action No. 4:14–cv–381–O.
• Citation: 123 F.Supp.3d 856
• Parties: Kory WATKINS and Open Carry Tarrant County, Plaintiffs, v. CITY OF ARLINGTON, Defendant.
• Court: U.S. District Court — Northern District of Texas

123 F.Supp.3d 856

Kory WATKINS and Open Carry Tarrant County, Plaintiffs,

v.CITY OF ARLINGTON, Defendant.

Civil Action No. 4:14–cv–381–O.

United States District Court, N.D. Texas, Fort Worth Division.

Signed Aug. 12, 2015.

Warren V. Norred, C. Chad Lampe, Norred Law, PLLC, Arlington, TX, Joshua W. Carden, Joshua Carden Law Firm, P.C., Irving, TX, for Plaintiffs.

Robert H. Fugate, Arlington City Attorney's Office, Arlington, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

REED O'CONNOR, District Judge.

Before the Court are Defendant's Motion for Summary Judgment and Brief and Appendix in Support (ECF Nos. 47–48, 52), filed March 30, 2015; Plaintiffs' Response (ECF No. 62), filed April 21, 2015; and Defendant's Reply and Appendix in Support (ECF Nos. 65–66), filed May 4, 2015. Also before the Court are Plaintiffs' Motion for Summary Judgment and Memorandum and Appendix in Support (ECF Nos. 49–50, 53), filed March 30, 2015; and Defendant's Response and Brief and Appendix in Support (ECF Nos. 59–61), filed April 20, 2015.¹ The Court considered the motions, the briefing, the record, and the applicable law. Additionally, the Court held a hearing on these motions on June 23, 2015. The Court also ordered supplemental briefing on specific issues.² For the reasons that follow, Defendant's Motion for Summary Judgment is GRANTED, and Plaintiffs' Motion for Summary Judgment is DENIED.

I. BACKGROUND

Plaintiffs bring the instant action challenging Section 15.02 of the Streets and Sidewalks Chapter of the Code of the City of Arlington ("Section 15.02") under the First and Fourteenth Amendments to the United States Constitution. See 1st Am. Verified Compl., ECF No. 38. The Court determines that the following facts are undisputed.³ In their Verified Complaint, filed on May 28, 2014, Plaintiffs successfully challenged a now-repealed version of Section 15.02. See Verified Compl., ECF No. 1. In October 2014, the City of Arlington ("Arlington") enacted the current version of Section 15.02, which regulates interactions between pedestrians and the occupants of vehicles stopped at traffic lights and has identical language to the ordinance at issue in Houston Chronicle Publishing Company v. City of League City, 488 F.3d 613, 622 (5th Cir.2007). See Def.'s App. Supp. Mot. Summ. J. Ex. 1 (Supino 2d Decl.), App. at 5, ECF No. 48–1; Section 15.02, App. at 10, ECF No. 48–1. Section 15.02 states:

No person who is within a public roadway may solicit or sell or distribute any material to the occupant of any motor vehicle stopped on a public roadway in obedience to a traffic control signal light. It is specifically provided, however, that a person, other than a person twelve years of age or younger; may solicit or sell or distribute material to the occupant of a motor vehicle on a public roadway so long as he or she remains on the surrounding sidewalks and unpaved shoulders, and not in or on the roadway itself, including the medians and islands.

Def.'s App. Supp. Mot. Summ. J. Ex. 1 (Section 15.02), App. at 10, ECF No. 48–1.

Plaintiff Kory Watkins ("Watkins") is a coordinator for Plaintiff Open Carry Tarrant County ("OCTC") (collectively, "Plaintiffs"), an organization that educates and advocates for gun rights in Texas. Pls.' App. Supp. Mot. Summ. J. Ex. A (Watkins Aff.) ¶¶ 2–3, App. at 1, ECF No. 58–2. One of OCTC's activities includes group walks in which participants provide pocket-sized copies of the U.S. Constitution and other literature to individuals requesting the materials, including those who are in motor vehicles stopped at a traffic light.See, e.g., Def.'s App. Supp. Mot. Summ. J. Ex. 2 (OCTC Facebook Photos), App. at 19, ECF No. 48–2; Watkins Aff. ¶ 4, App. at 1–2, ECF No. 58–1.

On May 28, 2014, Plaintiffs filed their initial Combined Application for Preliminary Injunction and Temporary Relief, which the Court granted enjoining Arlington from enforcing the now-repealed version of Section 15.02. See generally Pls.' Combined Appl., ECF No. 5; Mem. Op. & Order, July 14, 2014, ECF No. 19. On October 29, 2014, Arlington notified the Court that it had amended the challenged ordinance and asked the Court to consider the possibility that Plaintiffs' action was now moot. Def.'s Notice Question Mootness, ECF No. 33. Plaintiffs responded to Arlington's Notice and separately requested leave to amend their Complaint to respond to the new ordinance, the current version of Section 15.02. Pls.' Resp., ECF No. 35; Pls.' Mot. Leave Amend, ECF No. 36. The Court granted Plaintiffs leave to amend their Complaint, and Plaintiffs filed their First Amended Verified Complaint. Order, Nov. 12, 2014, ECF No. 37; 1st Am. Verified Compl., ECF No. 38.

On January 8, 2015, the Court entered its Order concluding that Plaintiffs had standing to bring this action, granting Defendant's motion to dismiss Plaintiffs' as-applied claims under the justiciability doctrine of ripeness, and dismissing Plaintiffs' as-applied claims without prejudice. See Order, Jan. 8, 2015, ECF No. 45. Additionally, the Court dissolved its Order enjoining Defendant from enforcing Section 15.02. Id. Plaintiffs did not seek leave from the Court to amend their as-applied claims. Currently, only Plaintiffs' facial claims remain pending.

The Court of Appeals for the Fifth Circuit held that language identical to the current version of Section 15.02 was content-neutral and facially constitutional in Houston Chronicle, 488 F.3d at 622. On its face, Section 15.02 does not have an express exception for government employees, whereas Texas state law requires that municipalities grant authorization for municipal employees, such as firefighters, "to stand in a roadway to solicit a charitable contribution," so long as such solicitors comport with other local requirements, such as posting a bond or obtaining a permit. Tex. Transp. Code Ann. § 552.007 (West 2013).⁴ The Fifth Circuit did not reach the issue of speaker discrimination between government employees and non-government employees in Houston Chronicle because it had not been raised at the district court level. 488 F.3d at 623. Here, because Plaintiffs allege that Section 15.02 discriminates against non-government employees, they contend that Section 15.02 is an unconstitutional prior restraint on speech because it is not content-neutral, it is not narrowly tailored to serve a compelling government interest, and it does not leave open ample alternative channels of communication. 1st Am. Verified Compl. ¶ 53, ECF No. 38.

On March 30, 2015, the parties brought cross motions for summary judgment. See Def.'s Mot. Summ. J., ECF No. 47; Pls.' Mot. Summ. J., ECF No. 49. The Court held a hearing on these motions on June 23, 2015. The motions have been fully briefed and are ripe for adjudication.

II. LEGAL STANDARD

Summary judgment is proper when the pleadings and evidence on file show "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). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant makes a showing that there is no genuine issue of material fact by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Fed.R.Civ.P. 56(c).

When reviewing the evidence on a motion for summary judgment, the court must decide all reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). The court cannot make a credibility determination in light of conflicting evidence or competing inferences. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion for summary judgment must be denied. Id. at 250, 106 S.Ct. 2505.

Cross motions for summary judgment must be considered separately, "as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law." Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538–39 (5th Cir.2004). If there is no genuine issue of material fact and one of the parties is entitled to prevail as a matter of law, the court may render summary judgment. Id. at 539.

III. ANALYSIS

Plaintiffs move for summary judgment on the grounds that Section 15.02 is an unconstitutional prior restraint on speech and seek a permanent injunction to prohibit Arlington from enforcing Section 15.02. Pls.' Mot. Summ. J. 1, ECF No. 49. Arlington moves for summary judgment on the basis that Section 15.02 is facially constitutional because Section 15.02 is a content-neutral time, place, and manner restriction that is narrowly tailored to Arlington's compelling governmental interest in public safety. Def.'s Br. Supp. Mot. Summ. J. 2, ECF No. 52.

A. First Amendment to the United States Constitution

"With the exception of First Amendment cases, a facial challenge will succeed only if the plaintiff establishes that the act is invalid under all of its applications." Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir.2013) (emphasis added) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). "The standard for facial challenges in First Amendment cases is different, although still daunting." Id. "A law implicating the right to expression may be invalidated on a facial challenge if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Id. (emphasis added and...