Benham v. CITY OF CHARLOTTE, NC

Citations: 635 F.3d 129; 2011 U.S. App. LEXIS 2890; 2011 WL 541758Docket: 10-1132

Court: Court of Appeals for the Fourth Circuit; February 15, 2011; Federal Appellate Court

Original Court Document: View Document

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Philip Benham, Sheryl Chandler, and Operation Save America, Inc. (the "Plaintiffs") filed a 42 U.S.C. § 1983 lawsuit against the City of Charlotte and its officials, Keith Parker and Emily Westbrook, in September 2007. The Plaintiffs sought injunctive relief and damages, claiming that two city ordinances violated the First Amendment's Free Speech Clause and the Fourteenth Amendment's Equal Protection Clause. The City moved for summary judgment, which the district court granted on January 8, 2010. The Plaintiffs appealed this ruling. 

The appellate court, led by Judge King, vacated the district court’s judgment and remanded the case for dismissal due to the Plaintiffs' failure to demonstrate a cognizable injury. The context of the case involved the Plaintiffs' attempt to obtain a permit for a public event at Independence Square Plaza to discuss the Supreme Court's Roe v. Wade decision. The legal framework governing public gatherings in Charlotte includes two separate ordinances: the Public Assembly Ordinance and the Picketing Ordinance. The Public Assembly Ordinance requires a permit for events that may obstruct traffic and outlines the procedures for permit applications and appeals, including grounds for denial and the process for challenging such denials.

The Picketing Ordinance defines a 'picket' as a public demonstration expressing support or opposition towards a person or cause, which includes various forms of protest such as distributing leaflets, displaying signs, and engaging in oral communication. Groups can conduct picketing without a permit, typically on public sidewalks, Independence Square Plaza, or city-controlled parks, but not on roadways primarily meant for vehicles. Picketing is prohibited in certain parks during permitted festivals or reserved events. Events must be categorized as either a 'festival' or a 'demonstration'; festivals require a public assembly permit, whereas demonstrations may proceed without a permit unless they obstruct traffic or are in reserved spaces. 

The Plaintiffs applied for a public assembly permit for the 'Roe vs Wade Memorial' on December 14, 2006, scheduled for January 22, 2007, at Independence Square Plaza. Their application noted no street closures and included activities like evangelical speeches and musical performances, estimating an attendance of 100 based on previous years. On December 20, 2006, permit official Emily Westbrook rejected the application, stating that the Picketing Ordinance governs demonstrations at Independence Square Plaza, which do not require a permit as long as they do not disrupt traffic. The Plaintiffs appealed this decision to Keith Parker, the appeals official, who held a hearing on January 3, 2007.

Parker affirmed Westbrook's classification of a planned event as a 'demonstration' occurring from 11:30 a.m. to 1:00 p.m. on February 22 at Independence Square Plaza, allowing it without a permit, aside from a noise permit if amplification was used. The plaintiffs conducted their event on January 22, 2007, with no arrests but two noise warnings issued. Seven months later, on September 20, 2007, the plaintiffs filed a civil action in the Western District of North Carolina, claiming violations of their free speech, free exercise rights, and due process and equal protection guarantees under both state and federal constitutions. They later dropped the free exercise and due process claims and focused on three issues: (1) the Public Assembly Ordinance's alleged vagueness and overbreadth, (2) a denial of their public assembly permit affecting their speech and equal protection rights, and (3) the ordinance's interaction with the Picketing Ordinance, which purportedly favors commercial and recreational assemblies. Following discovery, the city sought summary judgment, granted by the district court on January 7, 2010, citing a lack of evidence of inhibited speech or conduct due to the absence of a permit. The plaintiffs appealed on February 2, 2010, asserting jurisdiction under 28 U.S.C. § 1291. However, initial briefs did not address the issue of standing, prompting the court to request supplemental briefs before oral arguments. The plaintiffs claimed a desire and ability to hold future assemblies, asserting that the ordinances had impaired their expression and caused actual and nominal damages. Their complaint sought declaratory and injunctive relief, plus damages. During depositions, Benham confirmed planning the Roe vs Wade Memorial and acknowledged its execution, though a question on whether the event aligned with his vision was met with an objection for speculation.

Nelson reiterated his objection during proceedings, and Benham responded, stating, "I’ll stand on that," and added, "I can’t speculate on that." Throughout the district court proceedings and this appeal, the Plaintiffs have not claimed that the planning or execution of the event would differ if they had received a permit. The issue of standing to sue is assessed de novo, as established in *White Tail Park, Inc. v. Stroube*. If standing is evident but unaddressed in the lower court, the appellate court must raise and resolve the issue sua sponte, as per *Constantine v. Rectors, Visitors of George Mason Univ.* Should it be determined that the Plaintiffs lack standing, resulting in the district court's lack of jurisdiction, the appellate court can only correct this error, not address the merits of the case, as noted in *Stephens v. Cnty. of Albemarle*. The inquiry focuses on whether the Plaintiffs possess standing, which is essential for presenting a "case or controversy" under Article III of the Constitution, as reiterated in *Allen v. Wright*.

The Supreme Court outlines three elements constituting the "irreducible constitutional minimum of standing" in *Lujan v. Defenders of Wildlife*: (1) an injury in fact, (2) a causal connection between the injury and the defendant’s conduct, and (3) a likelihood of redress from a favorable decision. The first element, injury in fact, requires Plaintiffs to show they have suffered an invasion of a legally protected interest that is concrete and particularized, rather than conjectural or hypothetical. While facial challenges to an ordinance under the First Amendment may allow some relaxation of prudential rules regarding rights assertion, the injury-in-fact requirement remains grounded in Article III, applicable to all federal court actions, as clarified in *Virginia v. Am. Booksellers Ass’n* and *Harrell v. Fla. Bar*.

A First Amendment injury in fact can manifest in various ways related to a permitting system. Denial of a permit for expressive activity is a primary example of such an injury, as established in City of Lakewood v. Plain Dealer Pub. Co. Another form occurs when regulations diminish the audience size for a speaker, as noted in Stroube. The denial of opportunities to express views, even when other venues exist, can also constitute a cognizable claim. Additionally, interference with a group's ability to plan its message, as in Va. Soc’y for Human Life, Inc. v. FEC, represents another injury. Self-censorship, where a claimant feels deterred from exercising free expression, is recognized as a First Amendment injury, requiring an objectively reasonable chilling effect rather than merely subjective claims. To demonstrate injury in fact, it suffices to show that First Amendment activities have been chilled, as per Smith v. Frye, but speculative accounts are inadequate.

Government actions that are likely to deter a reasonable person from exercising First Amendment rights can be deemed sufficiently chilling, as indicated in Constantine v. Rectors, Visitors of George Mason Univ. Prior to addressing standing to sue, procedural issues must be considered. The Supreme Court case Havens Realty Corp. v. Coleman serves as a relevant example where plaintiffs alleged racial steering practices under the Fair Housing Act. The defendants argued that no distinct injury had been shown, leading to a dismissal before discovery. The Supreme Court found this premature, emphasizing that the lack of factual development does not allow for a legal conclusion of no injury. Therefore, the case was remanded to give the plaintiffs a chance to specify their allegations, with the understanding that failing to do so could result in dismissal for lack of standing at trial.

A defect of standing can arise at the pleading stage in two situations: when a complaint fails to allege facts supporting subject matter jurisdiction or when the allegations are proven false. Evaluating these situations involves different procedures, as outlined in Kerns v. United States. In this case, for the Plaintiffs to proceed with their constitutional claims, they must establish standing. The Plaintiffs have not demonstrated any injury related to the lack of a permit for the Roe vs. Wade Memorial; the permit was not necessary for their expressive activities. They cannot claim injuries from the absence of street closures or sound amplification since they did not request street closures and did not pursue a separate amplification permit. This situation mirrors the case of Stephens v. County of Albemarle, where the plaintiff's speculative claims were deemed insufficient to establish standing. The Plaintiffs in this case have failed to show how their event would differ had a permit been granted, and their claims are even more conjectural than those in Stephens. Additionally, while there is a question of whether the lack of a permit prevented them from reserving space, the Plaintiffs have not alleged any resulting burden or provided evidence of potential displacement by other events.

The Public Assembly and Picketing Ordinances create a framework that may prevent the Plaintiffs from claiming injury due to restrictions on expressive assembly. Events similar to the Roe vs Wade Memorial, defined as "demonstrations" that do not foresee street closures and are held in parks like Independence Square Plaza, cannot obtain permits under the Public Assembly Ordinance. Consequently, organizers of such events risk displacement by later-arriving permitted groups, which could hinder their ability to organize and publicize First Amendment-protected activities. This displacement risk might constitute a constitutional injury, as it could reduce audience size, deny opportunities for expression, and necessitate last-minute venue changes, discouraging future organizing efforts. 

However, the Plaintiffs failed to sufficiently allege or provide evidence of such injuries during extensive discovery. No instances were found where a group faced displacement after a permit denial, nor was there evidence of past or present fear of displacement from the Plaintiffs. The discovery revealed no logistical burdens linked to potential displacement and highlighted that standing and merits are intertwined in this case. Despite inquiries about how the Roe vs Wade Memorial would differ with a permit, the Plaintiffs did not provide a substantive response, relying instead on speculative assertions.

Plaintiffs cannot establish standing or justify further discovery due to their choice not to develop evidence of a cognizable injury. The appeal is based on a comprehensive evidentiary record, distinguishing it from cases like Havens Realty and Kerns, where no discovery had occurred prior to dismissal. Although the Plaintiffs claim a chilling effect from the Public Assembly and Picketing Ordinances, evidence shows they held an event without alteration, undermining their assertion. They had ample opportunity to demonstrate any burdens but failed to do so. 

Regarding the Plaintiffs' argument that the Public Assembly Ordinance is unconstitutionally vague due to overlapping terms like 'festival' and 'demonstration,' the court finds the challenge unsubstantiated. The Roe vs Wade Memorial clearly fell within the ordinance's definition of a demonstration, making the ordinance applicable and not vague in this context. The court concludes that, despite potential ambiguities in the ordinance's boundaries, the Plaintiffs' activities clearly fit its definitions. Consequently, the court vacates the district court's judgment and remands for dismissal due to lack of jurisdiction.