McGraw et al v. Oklahoma City City of et al
Filing
121
ORDER denying plaintiffs' 106 motion for summary judgment; defendants' motion of summary judgment 98 is granted in part and denied in part; summary judgment is granted in defendants' favor on plaintiffs' facial and as applied void for vagueness claims and plaintiffs' equal protection claims; defendants' motion is otherwise denied; the case will proceed to trial before the court on plaintiff's First Amendment free speech claims and their Fourteenth Amendment liberty claims. Signed by Honorable Joe Heaton on 6/18/2018. (cla)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CALVIN MCCRAW, et al.,
Plaintiffs,
vs.
CITY OF OKLAHOMA CITY, et al.,
Defendants.
)
)
)
)
)
)
)
)
NO. CIV-16-352-HE
ORDER
Plaintiffs filed this action against the City of Oklahoma City (“City”) and William
Citty, the Oklahoma City police chief, challenging a city ordinance which prohibited
certain conduct on public medians within city limits. The City revised the ordinance on
November 7, 2017. The revised ordinance 1 prohibits standing, sitting or staying on any
portion of a median located within a street or highway open for use by vehicular traffic if
the posted speed limit for such street or highway is forty miles per hour or greater. 2
Plaintiffs contend the revised ordinance violates their free speech rights and those of third
parties under the First Amendment. They also claim the ordinance is unconstitutionally
vague because it fails to give fair warning of what is prohibited, 3 invalidly deprives them
of liberty and, as applied, denies plaintiffs who panhandle the equal protection guaranteed
1
Ordinance No. 25,777(“revised ordinance” or “ordinance”).
2
There are limited exceptions to the prohibition which will be discussed subsequently.
3
Plaintiffs allege in the second amended complaint that the revised ordinance is void for
vagueness both facially and as applied. See Doc. #82, p. 54, ¶169. (References to documents are
to the CM/ECF document and page number.) As plaintiffs fail to address their “as applied”
vagueness claims in their motion or any of their briefs, the court considers it to be abandoned.
by the Fourteenth Amendment. Plaintiffs seek both a declaration that the ordinance on its
face and as applied to them and third parties violates the First and Fourteenth Amendments
and an injunction to keep the ordinance from being enforced.
The parties have filed cross motions for summary judgment, which should be
granted 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). Having
considered the motions and supporting documentation, the court concludes plaintiffs’
motion should be denied and defendants’ motion should be granted as to plaintiffs’ void
for vagueness claims and their equal protection claims. Material questions of fact on
several issues preclude the entry of summary judgment in either plaintiffs’ or defendants’
favor on the remaining claims.
Background
Plaintiffs are various individuals who reside in Oklahoma City, a minority political
party in Oklahoma and an independent news outlet based in Oklahoma City. They allege
they have long engaged in diverse expressive activities on public medians in the
metropolitan area ranging from political campaigning and panhandling to news reporting.
Plaintiffs filed this lawsuit initially challenging an ordinance the Oklahoma City Council
enacted in 2015. Plaintiff contended the ordinance “criminalize[d] ‘standing, sitting, or
staying’ on ‘any portion of a median’ within city limits virtually ‘for any purpose’ other
than to cross it.” First Amended Complaint, Doc. #15, ¶1. The City revised the ordinance
in 2017, but plaintiffs maintain the revised version is still unconstitutional.
The revised ordinance provides in pertinent part:
2
§ 32-458. – Standing, sitting, or staying on streets, highways, or certain medians.
(11) Based on findings (a)(l) through (a)(l0) above, the City Council wishes
to enact this section to:
i.
ii.
(12)
Limit as much as possible the number of individuals sitting,
standing or staying in streets or highways that are open for use by
motor vehicles; and to further
Limit as much as possible the number of individuals sitting,
standing or staying on medians located in streets or highways
with a speed limit of 40 mph or greater that are open for use by
motor vehicles; and
The City Council further finds that, notwithstanding the restriction
imposed by this section on the use by individuals of medians located in
streets or highways with a speed limit of 40 mph or greater, scores of
medians exist throughout the limits of the City that are located in streets
or highways with a speed limit of less than 40 mph and all such medians
may be available for unrestricted use by individuals.
(b)
Intent. This Ordinance is not intended to impermissibly limit an individual's
right to exercise free speech. Rather it seeks to impose a regulation that is narrowly
tailored to protect pedestrians and drivers alike by imposing a specific place and
manner restrictions for certain places where substantial threats of grievous bodily
injury or death exist due to vehicular traffic traveling at high speeds.
(c) Except as permitted by Subsection (e) of this section, no individual shall stand,
sit, or stay for any purpose in any portion of a street or highway open for use by
vehicular traffic.
(d) Except as permitted by Subsection (e) of this section, no individual shall stand,
sit, or stay for any purpose on any portion of a median located within a street or
highway open for use by vehicular traffic if the posted speed limit for such street or
highway is 40 mph or greater; provided, if no speed limit is posted for such street or
highway, then for the purpose of applying the restrictions imposed by this subsection,
the speed limit of such street or highway shall be presumed to be 25 miles per hour.
(e) Subsections (c) and (d) of this section shall not apply to:
(1) Individuals using a crosswalk or safety zone to cross from one
side of the street or highway to another;
3
(2) Government law enforcement officers, other government
employees, or government contractors or their employees or
subcontractors who are present in the street or highway or on the
median for the purpose of acting within the scope of
governmental authority.
(3) Individuals conducting legally authorized construction or
maintenance work, or other legally authorized work, in or on the
street, highway, or median; or
(4) Individuals responding to any emergency situation.
(f) Any person who violates the provisions of this section shall, upon conviction, be
punished by a fine not to exceed $100.00. No court costs shall be assessed.
Analysis
Plaintiffs’ principal claim is that the city ordinance suppresses protected
expression in violation of the First Amendment. 4 Material evidentiary issues exist
which preclude resolution of that claim on summary judgment. Many underlie legal
decisions the court will have to make, which include determining the type of fora
where the First Amendment expression was occurring. 5 Fact disputes also exist with
respect to plaintiffs’ claim that the median ban deprives them of the “‘liberty’ protected
by the Due Process Clause of the Fourteenth Amendment.” City of Chicago v.
Morales, 527 U.S. 41, 53 & 54 n. 19 (1999). However, the court concludes defendants
4
“The First Amendment is incorporated into the Fourteenth Amendment and thus applies
to the action at issue here.” Cutting v. City of Portland, 802 F.3d 79, 81 n.1 (1st Cir. 2015);
Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 35 (10th Cir. 2013).
5
The City does not dispute that the revised ordinance “burdens speech and expressive
conduct protected by the First Amendment.” Doc. #111, p. 24 n.15.
4
are entitled to summary judgment on plaintiffs’ claims that the ordinance is
impermissibly vague and that it violates the panhandlers’ equal protection rights.
Void for Vagueness
“‘[T]he void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.’” United States v. Hunter, 663 F.3d 1136, 1141 (10th Cir. 2011) (quoting
United States v. Graham, 305 F.3d 1094, 1105 (10th Cir. 2002)). When considering a
vagueness challenge to a penal statute, a court must “begin with ‘the presumption that the
statute comports with the requirements of federal due process and must be upheld unless
satisfied beyond all reasonable doubt that the legislature went beyond the confines of the
Constitution.’” Id. (quoting United States v. Welch, 327 F.3d 1081, 1094 (10th Cir.2003)).
To be upheld, “[a]ll that is required is that the language conveys sufficiently definite
warning as to the proscribed conduct when measured by common understanding and
practices....” Id. (internal quotation marks omitted).
Plaintiffs argue that the ordinance is “hopelessly vague” because of confusion
resulting from the “emergency exception” and the ordinance’s reliance on the “posted”
speed limit, both of which they assert are “critical to liability under the ban.” Doc. #109,
p. 44. According to plaintiffs it is unclear what constitutes an emergency under the
exception – whether it would “appl[y] to a candidate campaigning in an unexpectedly close
election, an activist protesting an unforeseen event, a panhandler soliciting to pay for
unexpected medical expenses, a reporter covering a breaking news event, or a jogger
5
responding to an unanticipated text, call, cramp, or untied shoelace.” Doc. # 106, p. 49.
However, a straightforward reading of the ordinance – specifically what is prohibited -- in
conjunction with the exemption for emergencies demonstrates its purpose and the scope of
the exemption. The City is banning people from using certain medians for any purpose
other than crossing, unless something out of the ordinary happens, an urgent event that
requires them to react. “Emergency” commonly means “[a] serious situation or occurrence
that happens unexpectedly and demands immediate action.” 6 American Heritage
Dictionary 583 (5th ed. 2011). The statute is not vague because it fails to provide specific
examples of emergencies because the term has a well-known, accepted definition. A
reasonable person of ordinary intelligence would know if he or she was confronting an
“emergency situation.” See Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)
(“perfect clarity and precise guidance have never been required even of regulations that
restrict expressive activity”); see also See Village of Hoffman Estates v. Flipside, Hoffman
6
Plaintiffs cite to a portion of the definition of “emergency” found in Article I of the Motor
Vehicles and Traffic Chapter of the Oklahoma City Municipal Code. See Doc. #114, p. 9.
However, they do not quote the entire definition or note that those definitions do not apply “where
the context clearly indicates a different meaning.” Okla. City Mun. Code ch.32, art. I, § 32-1
(2018). The code defines “emergency” as “an unforeseeable occurrence of temporary duration
causing or resulting in an abnormal increase in traffic volume, cessation or stoppage of traffic
movement, or creation of conditions hazardous to normal traffic movement, including fire, storm,
accident, riot, or spontaneous assembly of large numbers of pedestrians in such a manner as to
impede the flow of traffic.” § 32-1(22). The definition pertains to emergencies that impede or
affect the flow of traffic. It would not cover emergency situations involving pedestrians on
medians, an example of which would be a person injured in an automobile accident who sit or
stays on the median until the ambulance arrives. Therefore, it is apparent that the code’s definition
does not apply to the term “emergency” when it is used in Ordinance 25,777.
6
Estates, Inc., , 498-99 (1982) (“The Court has ... expressed greater tolerance of enactments
with civil rather than criminal penalties because the consequences of imprecision are
qualitatively less severe.”). Nothing more is required. See generally Hunter, 663 F.3d at
1141-42 (term “reasonable and prudent,” when used in statute proscribing motorists from
following other vehicles too closely, incorporated a “comprehensible, normative standard”
and was not unconstitutionally vague)
Plaintiffs’ other vagueness challenge to the ordinance is based on defense counsel’s
“suggest[ion] in multiple depositions that if a citizen cannot see the speed limit from their
vantage point – even if it might be posted elsewhere – then it is not ‘posted’ under the
Revised Ordinance.” Doc. #106, p. 50. Plaintiffs contend that this interpretation of the
statute, “under which a median is both outlawed and not outlawed depending on whether a
person has seen the posted speed limit – is hardly apparent from the text” and exposes a
“critical uncertainty with the line separating legality from criminality that chills speech and
invites arbitrary enforcement.” Id.
7
The court is not persuaded by plaintiffs’ argument or counsels’ construction of the
ordinance. As defendants point out, plaintiffs do not argue that people do not understand
what “posted speed limit for such street or highway is 40 miles per hour or greater” means.
7
In their response to defendants’ motion for summary judgment plaintiffs also essentially
assert that the ordinance lacks sufficient standards to enable officers to determine if individuals
fall within one of the ordinance’s other exemptions – if they are merely using the median to cross
the street or highway or are legally authorized to work there. Neither exemption confers unfettered
discretion. The distinction between sitting or staying on a median versus merely remaining there
long enough to cross a street or highway should be readily apparent to both the ordinary citizen
and patrolling officer. And those persons authorized to conduct work on city medians should have
and carry with them proper identification.
7
Doc. #111, p. 44. Rather, their complaint is that they must “make efforts to conform their
activity to the clearly enunciated standards.” Id. “[T]he general rule that ignorance of the
law or a mistake of law is no defense to criminal prosecution is deeply rooted in the
American legal system.” Commil USA, LLC v. Cisco Systems, Inc., 135 S.Ct. 1920, 1930
(2015) (quoting Cheek v. United States, 498 U.S. 192, 199 (1991)). Pedestrians who seek
to stand, sit or stay on a city median which abuts a street with a speed limit of 40 mph or
above are no different than drivers who are expected to know the speed limits of the streets
they drive. They must determine the speed of the adjacent street.
The court concludes the ordinance language “‘conveys sufficiently definite warning
as to the proscribed conduct when measured by common understanding and practices.’”
Hunter, 663 F.3d at 1142 (quoting Roth v. United States, 354 U.S. 476, 491 (1957)). That
is all that is required. Id. See Gaudreau, 860 F.2d at 362 (“The Court has consistently held
statutes sufficiently certain when they employ words or phrases with ‘a well-settled
common law meaning, notwithstanding an element of degree in the definition as to which
estimates might differ . . . .’”) (quoting Connally v. General Construction Co., 269 U.S.
385, 391) (1926)). Defendants’ motion for summary judgment will be granted as to
plaintiffs’ claims that the ordinance is void for vagueness both facially and as applied.
Equal Protection
Plaintiffs allege in their second amended complaint that the revised ordinance was
“drawn and enacted based on animus against those who engage in panhandling, and is
enforced against panhandling for the same illegitimate reason.” Doc. #82, p. 56, ¶178. In
their response to defendants’ motion, plaintiffs assert they have presented ample evidence
8
that City Council members intended to enact “panhandling/solicitation regulations” and
evidence as to whether the revised ordinance is “tainted by unconstitutional ‘antipathy,’
‘prejudice,’ and ‘animus’ against panhandlers in violation of . . . equal protection.” Doc.
#109, p. 45
Plaintiffs did not seek summary judgment on their equal protection claim in their
own motion and their half-hearted argument in response to defendants’ motion fails to
demonstrate that a fact or legal question exists as to whether they have an equal protection
claim under the circumstances present here. The only cases they cite, Romer v. Evans, 517
U.S. 620 (1996) and City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), dealt
with legislative classifications, with legislation which, on its face and/or as applied
discriminated against specific classes of individuals. The ordinance does not on its face
treat two groups differently. While plaintiffs pleaded an as applied equal protection claim.
they offer no evidence of differential enforcement. See generally Taylor, 713 F.3d at 54
(“To prevail on an equal protection claim, a plaintiff must show that she was treated
differently from others who were similarly situated.”). Summary judgment is therefore
appropriate in defendants’ favor on plaintiffs’ equal protection claim.
Accordingly, plaintiffs’ motion for summary judgment [Doc. #106] is DENIED.
Defendants’ motion of summary judgment [Doc. #98] is GRANTED IN PART and
DENIED IN PART. Summary judgment is granted in defendants’ favor on plaintiffs’
facial and as applied void for vagueness claims and plaintiffs’ equal protection claims. 8
8
Judgment on these claims will be entered when the action is concluded with respect to all
claim and parties. Fed.R.Civ.P. 54(b).
9
Defendants’ motion is otherwise denied. 9 The case will proceed to trial before the court
on plaintiff’s First Amendment free speech claims and their Fourteenth Amendment liberty
claims. 10
IT IS SO ORDERED.
Dated this 18th day of June, 2018.
9
This decision moots plaintiffs’ motion to strike defendants’ Exhibits 32 and 35[Doc.
#115]. Those documents pertain to issues which have been reserved for trial. Plaintiffs are not
precluded from reurging their objections if defendants move to admit those exhibits at trial.
10
Defendants also sought summary judgment with respect to plaintiff Schindler’s First
Amendment claim, which is based on his running on medians during the Oklahoma City Memorial
Marathon to honor victims of the bombing. They assert the ordinance would not affect him
because the roads on the marathon route are closed during the race. Plaintiffs disagree for two
reasons. First, they contend some of the streets on the route remain partly open to traffic. Second,
they assert that even if the adjacent street is not open for use by vehicles, the ordinance, as written,
does not exempt someone from the median ban if the speed on the street is 40 mph or greater
unless one of the exemptions in section (e) applies. Therefore, they contend plaintiff Schindler
could violate the ban while running the marathon. Plaintiffs have misread section (d), which states
that “no individual shall stand . . . on any portion of a median located within a street or highway
open for use by vehicular traffic . . . .” Doc. #98-27, p. 4 (emphasis added). While the court is
skeptical that the ordinance would be applied to plaintiff Schindler during the race, plaintiffs are
technically correct that the ordinance might apply because not all streets are entirely closed. For
that reason, defendants are not entitled to summary judgment on his First Amendment claim.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?