Price, et al v. City of Fayetteville, North Carolina, et al
ORDER denying 50 Motion to Dismiss for Lack of Jurisdiction and denying 51 Motion for Judgment on the Pleadings - Signed by District Judge Louise Wood Flanagan on 05/21/2014. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
TOM PRICE and WILLIAM LEGG,
CITY OF FAYETTEVILLE, NORTH
CAROLINA; KATHERINE BRYANT, in
her official capacity as Chief of Police for
the Fayetteville Police Department; and
WILLIAM RANDOLPH SESSOMS,
individually and in his official capacity as
Police Officer for Fayetteville Police
This matter is before the court on defendants’ motion for judgment on the pleadings,
pursuant to Federal Rule of Civil Procedure 12(c), and motion to dismiss plaintiff’s claims for
permanent injunctive and declaratory relief as moot, pursuant to Federal Rule of Civil Procedure
12(b)(1). (DE 50, 51). Plaintiffs responded in opposition, and defendants replied. In this posture,
the issues raised are ripe for ruling.
For the reasons that follow, the court denies defendants’
STATEMENT OF THE CASE
Plaintiffs commenced this action on March 1, 2013, under 42 U.S.C. §§ 1983 and 1988,
seeking injunctive relief, declaratory relief, and nominal damages against defendants for asserted
deprivation of plaintiffs’ fundamental right to free speech under the First Amendment and right to
due process of law, in connection with plaintiffs’ interest in distributing religious literature at the
2012 Fayetteville Dogwood Festival (“Dogwood Festival”), and future annual Dogwood Festivals.
In particular, plaintiffs seek the following relief, as pertinent to the present order:
(1) Nominal damages arising from acts of defendants during the 2012 Dogwood
(2) A declaratory judgment declaring that acts of defendants during the 2012
Dogwood Festival violated plaintiffs’ constitutional rights.
(3) A declaratory judgment declaring that a ban imposed on literature distribution
during the annual Dogwood Festival is unconstitutional on its face and as applied to
(4) A permanent injunction enjoining defendants from applying a ban on literature
distribution so as to restrict constitutionally-protected speech of speakers, including
plaintiffs, as well as unnamed third parties, on the public ways in Fayetteville, North
Carolina, during the annual Dogwood Festival.
(5) Award plaintiffs their costs and expenses of this action, including reasonable
In conjunction with their original complaint, on March 1, 2013, plaintiffs filed a motion for
preliminary injunction in which they sought to enjoin defendants “from applying policy that
facilitates a ban on literature distribution, on its face and as-applied, so as to prevent [plaintiffs] and
third party individuals from engaging in literature distribution on public ways in downtown
Fayetteville during the 2013 Fayetteville Dogwood Festival, future Dogwood Festivals, and other
festivals taking place in downtown Fayetteville.” (Mot. for Prelim. Inj. 1). Following hearing and
upon consideration of briefs and exhibits submitted by the parties, the court entered an order on
April 23, 2013, denying the preliminary injunction motion, which order contained findings of facts
on the record then before the court and conclusions of law.
Plaintiffs appealed the court’s denial of their preliminary injunction motion, and upon
plaintiffs’ motion the court stayed all further case activity pending the appeal. The court of appeals
dismissed the appeal on December 11, 2013, and the mandate issued on January 2, 2014. Plaintiffs
filed a second motion for preliminary injunction that same date, including new factual assertions and
exhibits based upon the 2013 and 2014 Dogwood Festivals. The second motion for preliminary
injunction sought to enjoin defendants from “applying and/or enforcing policy that bans literature
distribution, on its face and as-applied, so as to prevent Price, Legg and third party individuals from
engaging in literature distribution on public ways in downtown Fayetteville during the 2014
Dogwood Festival . . . or any future Dogwood Festival.” (Second Mot. for Prelim. Inj. 1).
On January 15, 2014, the court lifted the stay and held a Rule 16 status hearing at which the
parties agreed to attend a court-hosted settlement conference during the first two weeks of February
2014. Meanwhile, defendants filed on January 30, 2014, an initial response in opposition to
plaintiffs’ motion, in which defendants asserted as previewed at hearing that the motion is moot
because the city is not, and will not be, enforcing the restriction plaintiffs seek to enjoin.
Following court-hosted settlement conference held on February 11, 2014, the parties
tendered a proposed consent order stating that the parties resolved between themselves plaintiffs’
second motion for preliminary injunction. In particular, the consent order states that the parties
agreed that defendants “will not enforce the current literature distribution rule promulgated by
Dogwood Festival, Inc.” (DE 47). The court retained jurisdiction to enforce the parties’ agreement
and to resolve the remaining claims set out in plaintiffs’ complaint.
The court directed the parties to meet and cover and develop a joint report and plan for
remaining case deadlines and disposition. In the meantime, on March 11, 2014, defendants filed the
instant pending motions. On March 20, 2014, plaintiff filed a stipulation allowing plaintiff to file
an amended complaint, which is identical in all material respects to the original complaint, except
that it adds the identity of the “John Doe” defendant named in the original complaint and it is not
verified as the original complaint. On the same date, the parties filed a joint report and plan
suggesting a period of discovery to commence May 31, 2014. On the basis of the parties’ joint
report and plan, the court has entered a case management order that includes a period of discovery
running from May 31, 2014, to September 30, 2014, and sets a dispositive motions deadline for
October 31, 2014.
Plaintiffs filed their opposition to defendants’ motion for judgment on the pleadings and
motion to dismiss on April 1, 2014, and defendants replied on April 17, 2014.
STATEMENT OF FACTS
As pertinent to the motion for judgment on the pleadings, the allegations in the complaint
may be summarized as follows. The Dogwood Festival is a festival held annually each April in
downtown Fayetteville, North Carolina, in an area spanning various public streets and city parks.
The Dogwood Festival is free and open to the public, and events taking place include musical acts
and other forms of entertainment, food vendors, and booths for arts, crafts, and other activities.
While many public streets are closed for vehicular traffic, there are no barriers hindering pedestrian
access to the festival or any of the businesses and amenities found in the area, including restaurants,
public library, parks, and other buildings.
The Dogwood Festival is organized and operated by a private, non-profit corporation, the
Dogwood Festival, Inc., which obtains a special event permit each year from Fayetteville to host the
event. In accordance with city regulations, Fayetteville issues permits each year to the Dogwood
Festival, Inc., subject to the condition that the Dogwood Festival not unduly interfere with normal
business activity or the orderly movement of traffic within the area where the Dogwood Festival is
taking place. In addition, prior to issuing a permit, the Fayetteville Police Department, in
consultation with the city permitting official, determines the number of police officers needed to
appropriately police street closures and to provide security for the event. Dogwood Festival, as
permittee, is required to follow instructions of a police event commander. In this manner,
Fayetteville maintains control over traffic flow and security in the public streets and parks during
the Dogwood Festival.
Plaintiffs are evangelical Christians who seek to communicate a religious message by
handing out literature and engaging individuals in conversation about the Christian faith. On
Saturday, April 28, 2012, during the Dogwood Festival, plaintiffs went to a traffic circle at the
intersection of Ray Avenue and Maiden Lane in Fayetteville, North Carolina, to hand out gospel
tracts to individuals who were attending the Dogwood Festival or otherwise walking around in the
area. During the Dogwood Festival, the traffic circle is closed to vehicular traffic, but open to
pedestrian traffic. The traffic circle is located in the center of the festival and it affords plaintiffs
the greatest opportunity to reach as many people as possible with their message during the Dogwood
While they were at the traffic circle on April 28, 2012, plaintiffs handed out tracts and
engaged with consensual conversations with pedestrians for about 30 to 45 minutes. During this
time, they did not impede any pedestrian traffic, they did not have any sound amplification devices,
they did not block anyone’s way, they did not create any traffic back-up, and they did not cause any
problems or disturbances. In addition, they did not interfere with the operations of the festival, and
they were not aware of anyone complaining otherwise. Plaintiffs planned to continue to stay in the
traffic circle handing out gospel tracts and engaging in conversations.
Nevertheless, a representative of Dogwood Festivals, Inc., approached plaintiff William
Legg and asked him to discontinue his literature distribution or leave. Plaintiff Legg declined unless
he saw something in writing demonstrating a basis for the forced stoppage.
representative left. He came back approximately fifteen minutes later with a woman who was in
charge of the Dogwood Festival, and defendant William Randolph Sessoms, a police officer with
the Fayetteville Police Department. Upon seeing the officer, plaintiff Tom Price joined the
conversation. Plaintiffs could see that defendant Sessoms was a police officer because he was
dressed in police attire.
Defendant Sessoms ordered plaintiffs to stop distributing literature under the threat of arrest.
Plaintiffs asked for a written basis for this directive. Defendant Sessoms informed them that he was
a police officer empowered by the State of North Carolina to arrest those violating the law.
Plaintiffs clarified that they were seeking written authority for forcing them to stop their expression,
but the officer did not respond to their request. Instead, defendant Sessoms explained that the police
were enforcing the policy of Dogwood Festival, Inc., that bans literature distribution within festival
confines. Defendant Sessoms reiterated that he would arrest Price and Legg if they did not obey his
directive and stop their literature distribution at once.
Plaintiffs did not want to be arrested, so they discontinued their expressive activity and left
the area. If not for the ban imposed on their literature distribution, and the order from defendant
Sessoms, plaintiffs would have carried on with their expressive activities in the traffic circle during
the 2012 Dogwood Festival, and they would have planned on conducting similar activities during
the 2013 Dogwood Festival.
In an effort to secure relief short of litigation, plaintiff Legg, through counsel, sent a letter
to various city officials, including the Mayor, seeking a relief from the ban that kept plaintiffs from
distributing literature in the traffic circle during the Dogwood Festival. The city responded by letter
dated June 14, 2012. In its response, the city stated that “[t]he City is not involved in the Dogwood
Festival, Inc.’s decision to prohibit the distribution of literature at the Festival.” The city also noted
that Dogwood Festival, Inc., offers an alternative “dedicated area” for literature distribution, as well
as an alternative option to obtain an information booth.
Despite the city’s statement to the contrary in its letter, nobody previously had informed
plaintiffs of the alternative dedicated area for literature distribution. In addition, the dedicated area
proposed is in an isolated area that is a poor substitute for the traffic circle, which would cause
plaintiffs to miss much of their intended audience. The booth alternative is not a viable alternative
for them, as they are not qualified individually for one, it is unlikely they could obtain one if
qualified, it is cost-prohibitive, and a booth would be grossly inferior for their expressive purposes.
Additional facts and circumstances pertinent to defendants’ motion to dismiss claims, which
include defendants’ statements and other information provided by defendants during the course of
litigation, will be discussed further in the analysis herein.
A. Standard of Review
1. Motion for Judgment on Pleadings
In reviewing a motion for judgment on the pleadings, under Rule 12(c), the court applies “the
same standard” as for motions to dismiss made pursuant to Rule 12(b)(6). Burbach Broad Co. v.
Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir. 2002). Thus, to survive a motion for judgment on
the pleadings, the complaint must contain “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether judgment on the
pleadings should be granted, “a court accepts all well-pled facts as true and construes these facts in
the light most favorable to the plaintiff,” but does not consider “legal conclusions, elements of a
cause of action, and bare assertions devoid of further factual enhancement.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Nor must the court accept
“unwarranted inferences, unreasonable conclusions, or arguments.” Id. (quotations omitted).
2. Motion to Dismiss for Lack of Subject Matter Jurisdiction
A motion under Federal Rule of Civil Procedure Rule 12(b)(1) challenges the court’s subject
matter jurisdiction. The plaintiff bears the burden of showing that federal jurisdiction is appropriate
when challenged by the defendant. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may either assert
the complaint fails to state facts upon which subject matter jurisdiction may be based or attack the
existence of subject matter jurisdiction in fact, apart from the complaint. Adams, 697 F.2d at 1219.
The latter type of attack, which defendants’ assert here, is used when a court’s limited jurisdiction
precludes hearing the case brought. Id. Since the court’s power to hear the case is at issue in a Rule
12(b)(1) motion, the court is free to weigh the evidence to determine the existence of jurisdiction.
Id. Nevertheless, “where the jurisdictional facts are intertwined with the facts central to the merits
of the dispute . . . the entire factual dispute is appropriately resolved only by a proceeding on the
1. Motion for Judgment on Pleadings
a. Individual capacity claims against defendant Sessoms
Plaintiffs assert claims under 42 U.S.C. § 1983 against defendant Sessoms, in his individual
capacity, based on an alleged violation of their freedom of speech and due process rights under the
U.S. Constitution. In their motion for judgment on the pleadings, defendants argue that the doctrine
of qualified immunity bars the individual capacity claims against defendant Sessoms.
Government officials are entitled to qualified immunity from civil damages so long as “their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accordingly, to
survive a defendant’s assertion of qualified immunity, “a plaintiff must satisfy the following
two-prong test: ‘(1) the allegations underlying the claim, if true, substantiate [a] violation of a
federal statutory or constitutional right; and (2) this violation was of a clearly established right of
which a reasonable person would have known.’” Smith v. Gilchrist, ___ F.3d ___, 2014 WL
1910833 *3 (4th Cir. 2014) (quoting Ridpath v. Board of Governors Marshall Univ., 447 F.3d 292,
306 (4th Cir. 2006)). The outcome of the “clearly established” test “depends largely upon the level
of generality at which the relevant legal rule is to be identified.” Id. (quoting Wilson v. Layne, 526
U.S. 603, 614 (1999)). Under the qualified immunity analysis, “the nature of the right allegedly
violated must be defined at a high level of particularity.” Occupy Columbia v. Haley, 738 F.3d 107,
121 (4th Cir. 2013).
In this case, the allegations of the complaint, viewed in the light most favorable to plaintiffs,
substantiate a violation of plaintiffs’ First Amendment right to free speech. “[T]here is no doubt that
as a general matter peaceful picketing and leafleting are expressive activities involving ‘speech’
protecting by the First Amendment.” Id. (quotations omitted). “It is also true that ‘public places’
historically associated with the free exercise of expressive activities, such as streets, sidewalks, and
parks, are considered, without more, to be ‘public forums.’” Id. (quotations omitted). As alleged
in the complaint, the traffic circle is a public forum because it is comprised of public streets and
sidewalks open to the public during the Dogwood Festival.
Because plaintiffs sought “to engage in protected speech in a traditional public forum, the
government’s power to regulate that speech is limited, though not foreclosed.” Clatterbuck v. City
of Charlottesville, 708 F.3d 549, 555 (4th Cir. 2013). “The government may impose reasonable
content-neutral time, place, and manner restrictions that are narrowly tailored to serve a significant
government interest and leave open ample alternative channels of communication.” Id. The court
will consider these requirements in turn below.
A “restriction of speech is content-neutral if it is justified without reference to the content
of the regulated speech,” whereas “a restriction is content-based if it was adopted because of
disagreement with the message the speech conveys.” Id. (internal quotations omitted). “In this
inquiry, the government’s purpose is the controlling consideration.” Id. (internal quotations omitted).
Plaintiffs have not asserted in the complaint that the restriction enforced by defendant Sessoms was
based on the content of their expression, and they do not advance this argument in their brief.
Moreover, there are no facts alleged suggesting that defendant Sessoms enforced the restriction on
the basis of the content of plaintiffs’ expression. Accordingly, for purposes of the present analysis,
the restriction at issue in this case is content-neutral.
“A valid time, place, and manner regulation must . . . serve a significant governmental
interest.” Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981). Here,
the complaint does not allege any governmental interest served by the restriction enforced by
defendant Sessoms. The complaint alleges simply that plaintiffs were handing out “gospel tracts”
in the traffic circle, when a representative of Dogwood Festivals, Inc., and defendant Sessoms
ordered plaintiffs to stop distributing literature or leave. (Am. Compl. ¶¶ 49, 51, 54). When asked
for a basis for this directive, defendant Sessoms “explained that the police were enforcing the policy
of Dogwood Festival, Inc. that bans literature distribution within festival confines.” (Id. ¶56).
As in Clatterbuck, the court is constrained upon considering a motion for judgment on the
pleadings to limit its analysis of governmental interest to the allegations of the complaint. In
particular, the court is “bound . . . to evaluate [plaintiffs’] claims based on the sufficiency of their
pleadings, not based on the government’s asserted evidence or our [the court’s] independent
judgment of likely purposes.” 708 F.3d at 556. Accordingly, the court observed in Clatterbuck,
“without evidence about the City’s purpose we are . . . unable to weigh how compelling the City’s
interest is, nor whether the Ordinance is narrowly tailored to that interest.” Id. at 559. Similarly,
here, without any allegation or suggestion in the complaint about the purpose behind the
enforcement of the literature distribution restriction, the restriction does not meet on the present
showing the requirement of serving a “significant governmental interest.” Heffron, 452 U.S. at 649.
“Where a restriction on speech lacks [a] close and substantial relation to the governmental interests
asserted, it cannot be, by definition, a reasonable time, place, or manner restriction.” Edenfield v.
Fane, 507 U.S. 761, 773 (1993).
As noted previously, a reasonable content-neutral time, place, and manner restriction must
“leave open ample alternative channels of communication.” Clatterbuck, 708 F.3d at 555. Just as
the complaint does not allege or suggest a purpose of the literature distribution restriction, it also
does not allege that plaintiffs were offered any ample alternative channels of communication.
Rather, during the 2012 Dogwood Festival plaintiffs were given the option to cease their expressive
activity or leave, and they were told that “the police were enforcing the policy of Dogwood Festival,
Inc. that bans literature distribution within festival confines.” (Am. Compl. ¶56).
Although plaintiffs were informed in June 2012 of an option to distribute literature in Linear
Park, according to the complaint plaintiffs were not informed of this option at the time the restriction
was enforced during the 2012 Dogwood Festival. (Id. ¶ 64). Plaintiffs also were reminded in June
2012 of an option to distribute literature from an information booth. Plaintiffs allege, however, that
this was not a viable alternative for them because of multiple reasons, including that they are not
qualified individually for one, it is unlikely they could obtain one if qualified, it is cost-prohibitive,
and a booth would be grossly inferior for their expressive purposes. (Id. ¶¶ 65-66). Considering
these allegations in the light most favorable to plaintiffs, the alleged literature distribution restriction
did not leave open ample alternative means of communication.
In sum, based on the allegations in the complaint, the literature distribution restriction
enforced by defendant Sessoms is not a reasonable time, place, and manner restriction because it
does not serve a significant government interest and leave open ample alternative channels of
communication. Therefore, plaintiffs have alleged that defendant Sessoms’ enforcement of the
restriction at the 2012 Dogwood Festival violated their First Amendment rights.1
Having determined that plaintiffs have alleged a violation of their First Amendment rights,
the court considers next whether “this violation was of a clearly established right of which a
reasonable person would have known.” Smith, ___ F.3d ___, 2014 WL 1910833. “When deciding
whether a right is clearly established, we ask whether it would be clear to a reasonable official that
his conduct was unlawful in the situation he confronted.” Occupy Columbia, 738 F.3d at 124 (4th
Cir. 2013). “This is not to say that an official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.” Id. (quoting Anderson v. Creighton, 483 U.S.
635, 639 (1987)).
The question the court must therefore ask is whether, on April 28, 2012, it was clearly
established in the Fourth Circuit and Supreme Court precedent that, in the absence of a valid time,
place, and manner restriction, ordering plaintiffs to stop their literature distribution or leave, as
alleged in the complaint, was a violation of their First Amendment rights. In light of the First
Amendment case law described above, the court must answer this question in the affirmative.
Defendants argue that “[t]he only ‘right’ at issue is whether Plaintiffs had a ‘clearly
established right’ to distribute literature at the 2012 Dogwood Festival notwithstanding the time,
place, and manner restriction promulgated by the Dogwood Festival.” (Reply at 9). Defendants
point out that the court determined in its preliminary injunction order that “the U.S. Supreme Court’s
Where plaintiffs have alleged a First Amendment violation the court need not analyze separately at this
juncture whether plaintiffs similarly have pled a violation of their due process rights, as the complaint asserts. In
addition, the court notes that the parties do not provide separate argument at this time regarding the alleged violation
of due process rights.
decision in Heffron dictates that on the facts present at the 2012 Dogwood Festival, Plaintiffs did
not have such a right at all, much less a ‘clearly established right.’” (Id.) In so arguing, however,
defendant assumes facts that are not in the complaint, and does not construe them in the light most
favorable to plaintiff as the court is required to do on a motion for judgment on the pleadings. As
set forth above, considering the allegations of the complaint, the literature distribution restriction
enforced on April 28, 2012, did not serve a significant government interest, and it did not provide
ample alternative means for communication. It is not pertinent to the present inquiry that the court
found to the contrary based upon a limited record on disputed facts presented on motion for
preliminary injunction. While defendants suggest that the court should consider again the matters
previously considered outside of the pleadings, and convert their motion for judgment on the
pleadings into a motion for summary judgment, the court declines to do so at this stage of the
litigation. Such a step is premature, given that the parties have recently endorsed, and the court has
adopted, a scheduling order that allows for limited discovery which may illuminate the very
contested issues that defendants raise in the motion for judgment on the pleadings.
In sum, based on the foregoing, the court will deny defendants’ motion for judgment on the
pleadings as to plaintiffs’ claim for nominal damages against defendant Sessoms in his individual
b. Official capacity claims
Claims against city officials in their official capacity are in all respects, for purposes of
Section 1983, “treated as suits against the municipality.” Santos v. Frederick Cnty. Bd. of Comm’rs,
725 F.3d 451, 469-70 (4th Cir. 2013). “[A] municipality is subject to Section 1983 liability only
when its ‘policy or custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the [plaintiff’s] injury.’” Id. (quoting Monell v.
Dept. of Social Services of the City of New York, 436 U.S. 658, 694 (1978)).
“An official policy often refers to ‘formal rules or understandings that are intended to, and
do, establish fixed plans of action to be followed under similar circumstances consistently and over
time.’” Semple v. City of Moundsville, 195 F.3d 708, 712-13 (4th Cir. 1999) (quoting Pembaur v.
Cincinnati, 475 U.S. 469, 480 (1986)). “While municipal policy is most easily found in municipal
ordinances, ‘it may also be found in formal or informal ad hoc ‘policy’ choices or decisions of
municipal officials authorized to make and implement municipal policy.’” Edwards v. City of
Goldsboro, 178 F.3d 231, 244-45 (4th Cir. 1999) (quoting Spell v. McDaniel, 824 F.2d 1380, 1385
“Proof of a single incident of unconstitutional activity is not sufficient to impose liability
under Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.” City
of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). By contrast, “where the policy relied
upon is not itself unconstitutional, considerably more proof than the single incident will be necessary
in every case to establish both the requisite fault on the part of the municipality, and the causal
connection between the ‘policy’ and the constitutional deprivation.” Id. at 824.
The complaint sufficiently alleges facts permitting an inference that the violation of
plaintiffs’ First Amendment rights on April 28, 2012, was caused by an existing unconstitutional
municipal policy. In particular, the complaint alleges that defendant Sessoms ordered plaintiffs to
stop distributing literature under the threat of arrest. When asked for a written basis for this
directive, defendant Sessoms “explained that the police were enforcing the policy of Dogwood
Festival, Inc. that bans literature distribution within festival confines.” (Am. Compl. ¶ 56 (emphasis
added)). In this manner, as alleged, defendant Sessoms not only individually directed plaintiffs to
stop distributing literature, but also he suggested that “the police” had made a decision in the form
of a “fixed plan of action to be followed under similar circumstances consistently and over time”
Pembaur, 475 U.S. at 480, to enforce the policy of Dogwood Festival, Inc. Although the city in its
June 2012 letter asserted that it “is not involved in the Dogwood Festival Inc.’s decision to prohibit
the distribution of literature at the Festival,” this letter says nothing of the city’s involvement in
enforcing the prohibition during the 2012 Dogwood Festival or other festivals around that time in
In addition, plaintiffs have alleged that the city caused the violation of plaintiffs’ First
Amendment rights by giving the Dogwood Festival Inc. discretion, through application of the city
permitting regulations, to exclude constitutionally-protected expression. The Fourth Circuit has
recognized that even where city policies do not “directly command or authorize constitutional
violations,” they may nonetheless cause the violation by providing “tacit authorization” to
unconstitutional conduct. Spell, 824 F.2d at 1387-88. Plaintiffs have not cited any case, however,
in which a court has found municipal liability merely upon the issuance of a special-use permit to
a private organization. Rather, cases cited by plaintiffs involved circumstances where a city has
issued a permit and then enforced the private entity’s policy, as alleged in this case. See Parks v.
City of Columbus, 395 F.3d 643, 652 (6th Cir. 2005); Bays v. City of Fairborn, 668 F.3d 814, 818
(6th Cir. 2012).2 Because plaintiffs have sufficiently alleged that the city had a policy of enforcing
United Auto Workers v. Gaston Festivals, 43 F.3d 902 (4th Cir. 1995), cited by
defendants, is inapposite. There, the court upheld dismissal of a § 1983 suit where plaintiffs
alleged a private organization that organized an annual festival violated their First Amendment
the Dogwood Festival Inc.’s allegedly unconstitutional restriction, the court need not address at this
juncture whether the issuance of a special use permit, alone, could serve to establish municipal
Defendants argue that the single interaction with defendant Sessoms is insufficient to
overcome “stringent” requirements for plaintiffs seeking to establish a municipal policy. This
argument raised at this stage of the proceedings is flawed in two respects. As an initial matter, the
“stringent” requirements to which defendants refer are “substantive requirements for proof of
municipal liability.” Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994). They do not represent
pleading requirements; indeed the Fourth Circuit expressly has recognized that while “the
substantive requirements for proof of municipal liability are stringent,” “section 1983 claims are not
subject to a heightened pleading standard paralleling the rigors of proof demanded on the merits.”
Id. Under this pleading standard, “[t]here is no requirement that [plaintiffs] . . . plead the multiple
incidents of constitutional violations that may be necessary at later stages to establish the existence
of an official policy or custom and causation.” Id. at 339. Rather, “a § 1983 plaintiff seeking to
impose municipal liability must satisfy only the usual requirements of notice pleading specified by
the Federal Rules.” Edwards, 178 F.3d at 245 (quoting Jordan, 15 F.3d at 339); see Leatherman v.
rights by denying them an information booth at the festival. The court held that the
“organization, management, and promotion of events” by the private organization did not fall
within the domain of government functions, and thus could not support a § 1983 suit. There was
no allegation or discussion of any involvement by city officials in enforcing the denial of the
booth, and plaintiff’s members “were still free to . . . hand out pamphlets at festival entrances,
and to discuss their views with patrons” of the festival. Id. at 905. Thus, United Auto Workers
is distinguishable both because there was no police enforcement and because the restriction at
issue allowed for literature distribution other than through a booth.
Tarrant Cnty., 507 U.S. 163, 164 (1993). Thus, plaintiffs were not required to allege multiple
instances of violations of their First Amendment rights to state a claim of municipal liability.
In addition, as set forth above, plaintiffs do not merely allege existence of a municipal policy
on the basis of a single incident of misconduct. Rather plaintiffs allege that “the police were
enforcing” the literature distribution restriction of the Dogwood Festival, Inc. (Am. Compl. ¶56).
In this manner, although plaintiffs allege only one incident in which their First Amendment rights
were violated, they include an allegation that this single incident was caused by an existing
municipal policy to enforce the restriction of the Dogwood Festival Inc. Such allegations support
plaintiffs assertion in their complaint of a claim that “[d]efendants’ policies and practices, and the
enforcement thereof, violate the Free Speech Clause of the First Amendment.” (Id. ¶ 78).
In sum, defendants’ motion for judgment on the pleadings as to plaintiff’s claim against
defendants in their official capacity will be denied.
2. Motion to Dismiss
Defendants move to dismiss as moot plaintiffs’ claims for permanent injunctive and
declaratory relief. The court notes at the outset that, in light of the court’s ruling on plaintiffs’ claim
against defendant Sessoms in his individual capacity based on an alleged violation of their First
Amendment rights taking place April 28, 2012, plaintiffs’ claim for declaratory relief seeking a
declaration of this same violation (see Am. Compl. p. 14, section B.), necessarily is not moot.
Defendants’ motion to dismiss must therefore first be denied as to that particular claim for
declaratory relief. The court turns next to consider whether the remaining claims for injunctive and
declaratory relief, (id., sections C.-E.), are moot.
“It is well settled that a defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotations omitted).
“In accordance with this principle, the standard [the Supreme Court has] announced for determining
whether a case has been mooted by the defendant’s voluntary conduct is stringent: A case might
become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” Id. (internal quotations omitted). “The heavy burden of
persuading the court that the challenged conduct cannot reasonably be expected to start up again lies
with the party asserting mootness.” Id. (internal quotations omitted); see also Ne. Florida Chapter
of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 (1993)
(holding that claims for injunctive relief are not mooted by city’s repeal of challenged ordinance).
Defendants have not met the heavy burden of demonstrating that it is absolutely clear that
the allegedly wrongful behavior could not reasonably be expected to recur. Defendants’ assertion
of mootness is belied by the parties’ sharp dispute over the nature of the constitutional violation, and
whether it was due to the conduct of a single police officer, the policy of a private organization, or
the policy of the city itself. For example, defendants assert in their reply brief that “the City’s only
‘policy’ is not to enforce the Dogwood Festival, Inc.’s restriction or any other Dogwood Festival,
Inc. rules.” (Reply at 3-4). Defendants assert that “a total of four Affidavits state in no uncertain
terms that the City’s longstanding policy will continue in the future.” (Id. at 4). Plaintiffs, however,
dispute that the city has always maintained a policy not to enforce the Dogwood Festival, Inc.’s
restriction. In particular, the complaint asserts that defendant Sessoms explained to them that “the
police were enforcing the policy of Dogwood Festival, Inc. that bans literature distribution within
festival confines.” (Am. Compl. ¶ 56). Indeed, as noted above, in its 2012 letter to plaintiff Legg,
the city merely stated that it was not involved in the decision to prohibit the distribution of literature
at the festival, but it did not deny its involvement in enforcing the restriction. (Id. ¶¶ 61-62).
Defendants suggest, through their affidavits, a distinction between, on the one hand, a police
officer’s duty to enforce the law, enforce city ordinances, and maintain the peace, and, on the other
hand, a police officer’s duty to enforce policies of private entities hosting events on city property.
But, plaintiffs’ have not conceded that this distinction has any legal significance in the context of
this case. Indeed defendants have not cited any case law in which a court has drawn a distinction,
for purposes of First Amendment analysis, between a police officer directly telling a person to cease
literature distribution and a police officer telling a person to leave for failure to follow the direction
of a private entity to cease literature distribution. Plaintiffs, by contrast, have relied upon a federal
circuit court case in which a city was held responsible for a First Amendment violation where a
police officer told a person “that they would be arrested for criminal trespassing if they did not stop”
displaying signs or handing out literature as directed moments earlier by a private festival worker.
See Bays, 668 F.3d at 818.
Although the court expresses no opinion as to whether plaintiffs ultimately may be entitled
to the declaratory and injunctive relief they request when considered upon a more complete record,
it suffices to say that the controversy in this matter is not moot. Accordingly, defendants’ motion
to dismiss for lack of subject matter jurisdiction will be denied.
Based on the foregoing, defendants’ motion for judgment on the pleadings and motion to
dismiss are DENIED.
SO ORDERED this the 21st day of May, 2014.
LOUISE W. FLANAGAN
United States District Judge
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