McLean v. City Of Alexandria
Filing
55
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 05/05/2015. (jlan)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
SCOTT MCLEAN,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CITY OF ALEXANDRIA,
Defendant.
M E M O R A N D U M
1:14cv1398 (JCC/IDD)
O P I N I O N
This matter is before the Court on Defendant City of
Alexandria’s (“the City’s”) Renewed Motion to Dismiss [Dkt. 37],
and Plaintiff Scott McLean’s (“McLean’s”) Motion for Summary
Judgment [Dkt. 47].
For the reasons discussed below, the Court
will grant in part the City’s Renewed Motion to Dismiss and
grant McLean’s Motion for Summary Judgment.
I. Background
McLean claims section 10-4-13(a) of the City’s Code
of Ordinances (“the Ordinance”)--which prohibits parking a
vehicle upon any City street for the purpose of displaying the
vehicle for sale--is an unconstitutional content-based
restriction of his First Amendment right to commercial speech.
(Compl. [Dkt. 1] ¶¶ 28-32.)
The Court previously denied the
City’s motion to dismiss, holding the case was not moot after
the City temporarily suspended enforcement of the Ordinance
1
pending City Council review.
33].)
(Mem. Op. [Dkt. 32]; Order [Dkt.
After public comment and a period of review, on March 14,
2015, the City Council repealed the Ordinance.
Two motions are now pending before the Court.
First,
the City renews its motion to dismiss and argues again that the
case is now moot because the City Council has repealed the
Ordinance.
(Def.’s Mot. to Dismiss [Dkt. 37]; Def.’s Mem. in
Supp. [Dkt. 38].)
McLean opposes this motion and contends the
case is not moot because he still seeks nominal damages to
redress the City’s prior suppression of his First Amendment
right to commercial speech, despite the recent repeal of the
Ordinance.
(Pl.’s Opp’n [Dkt. 50].)
Second, McLean moves for
summary judgment and argues he is entitled to judgment as a
matter of law.
(Pl.’s Mot. for Summ. J. [Dkt. 47]; Pl.’s Mem.
in Supp. [Dkt. 48].)
summary judgment.
The City opposes Plaintiff’s motion for
(Def.’s Opp’n [Dkt. 52].)
The Court will
address each motion in turn.
II. Motion to Dismiss
The City moves for dismissal under Rule 12(b)(1) of
the Federal Rules of Civil Procedure and contends that the
City’s repeal of the Ordinance rendered this matter moot.
The
sole issue before the Court in resolving this motion is whether
the City’s rescission of the law at issue moots this litigation.
The Court finds that in this instance, repealing the Ordinance
2
partially moots the relief McLean seeks, and thus will grant the
City’s motion to dismiss in part.
In filing this lawsuit, McLean seeks declaratory,
injunctive, and nominal relief.
(See Compl. at 9.)
McLean
concedes that any injunctive, or prospective relief, was
rendered “unnecessary” after the City repealed the Ordinance.
(Pl.’s Opp’n at 2.)
In other words, McLean’s request for
injunctive relief became moot.
See Valero Terrestrial Corp. v.
Paige, 211 F.3d 112, 116 (4th Cir. 2000) (holding “statutory
changes that discontinue a challenged practice are usually
enough to render [Plaintiff’s claim for injunctive relief] moot,
even if the legislature possesses the power to reenact the
statute after the lawsuit is dismissed.”) (citation and internal
quotation marks omitted).
The Fourth Circuit has recognized a
distinction in the mootness doctrine between cases seeking
injunctive relief and cases seeking compensatory or nominal
damages to vindicate First Amendment violations.
See Rock For
Life-UMBC v. Hrabowski, 411 F. App’x 541, 550 (4th Cir. 2010).
“Valero, however, is inapposite to a claim brought under § 1983
to recover damages--either compensatory or nominal--resulting
from a prior suppression of speech.
In this context, we have
held that even permanent remedial measures will not moot the
claim.”
Id. (citing Covenant Media of S.C., LLC v. City of
North Charleston, 493 F.3d 421, 429 n.4 (4th Cir. 2007) (citing
3
Henson v. Honor Comm. of the Univ. of Va., 719 F.2d 69, 72 n.5
(4th Cir. 1983)); Reyes v. City of Lynchburg, 300 F.3d 449, 453
(4th Cir. 2002)).
Here, in short, repealing the Ordinance does not moot
McLean’s as-applied challenge to the Ordinance for which he
seeks nominal damages.
McLean’s facial challenge to the now-
repealed Ordinance and request for injunctive relief are,
however, moot.
Rock For Life-UMBC, 411 F. App’x at 550-51 (“But
while the plaintiff’s cause of action for damages remains live,
their claim that the policy was facially unconstitutional is
moot.”).
Therefore, the Court will dismiss McLean’s request for
injunctive relief and his facial challenge to the Ordinance.
The justiciable issue that remains is whether impermissible
chilling of McLean’s First Amendment rights did in fact occur,
and whether McLean is entitled to nominal damages as a result.
Id.
III. Motion for Summary Judgment
A. Legal Standard
Summary judgment is appropriate only if the record
shows 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.”
Fed. R. Civ. P. 56(c); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs.
Applications & Serv., Co., 80 F.3d 954, 958-59 (4th Cir. 1996)
4
(citations omitted).
In reviewing the record on summary
judgment, “the court must draw any inferences in the light most
favorable to the non-movant [and] determine whether the record
taken as a whole could lead a reasonable trier of fact to find
for the non-movant.”
Brock v. Entre Computer Ctrs., 933 F.2d
1253, 1259 (4th Cir. 1991) (citations omitted).
Once a motion for summary judgment is properly made
and supported, the opposing party has the burden of showing that
a genuine dispute of material fact exists.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
see also Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673
F.3d 294, 299 (4th Cir. 2012) (stating the opposing party must
“come forward with specific facts showing that there is a
genuine issue for trial.”) (citations and internal quotations
omitted).
Specifically, in this Court on summary judgment, the
parties are required to list the undisputed, or disputed,
material facts in their briefs.
56(B).
E.D. Va. Local Civil Rule
“In determining a motion for summary judgment, the Court
may assume that facts identified by the moving party in its
listing of material facts are admitted, unless such a fact is
controverted in the statement of genuine issues filed in
opposition to the motion.”
Id.
Indeed, “[i]f a party fails to
properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule
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56(c), the court may consider the fact undisputed for purposes
of the motion.”
Fed. R. Civ. P. 56(e)(2).
B. Undisputed Material Facts
The City has failed to identify a genuine issue of
material fact that must be decided at trial.
In accordance with
the Local Rules, McLean lists the undisputed material facts and
supports those facts with citations to evidence in the record.
(Pl.’s Mem. at 2-4.)
In its opposition, the City does not
properly address McLean’s assertions of fact, but instead cites
only to two potential witnesses “who have signed interrogatories
stating that the [Ordinance] is designed to advance pedestrian
and vehicular safety.”
(Def.’s Opp’n at 2.)
Thus, for purposes
of this motion for summary judgment, the Court deems McLean’s
statement of facts as undisputed and summarizes those facts
below.
Fed. R. Civ. P. 56(e)(2).
In October of 2012, McLean received a citation from
the City for parking his 2008 Chevrolet Malibu on a City street
for the purpose of displaying the vehicle for sale.
McLean paid
the $40 fine and parked the vehicle for the purpose of
displaying it for sale in the neighboring jurisdiction of
Arlington County until it was sold in February of 2013.
Over one year later in 2014, McLean wanted to sell his
2007 Dodge Ram 1500 Pickup Truck, but instead of parking it on a
City street with a “For Sale” sign in the window, he filed this
6
case seeking prospective injunctive relief and nominal damages
for prior harm.
Five days after McLean filed this action, the
City suspended enforcement of the Ordinance pending review by
the City Council.
Between January of 2010 and October of 2014,
the City issued over 700 citations for violations of the
Ordinance, amounting to a cumulative total of approximately
$28,000 in fines.
It remains unknown why the Ordinance was originally
adopted in 1951, but the City “assumes, without limitation, that
the Ordinance was originally adopted for the general purposes of
promoting traffic and pedestrian safety.”
2.)
(Pl.’s Mem. Ex. 2 at
The City speculates that the act of parking a car on a City
street for purposes of displaying it for sale could constitute a
threat to the public health, safety, or welfare because such an
act could potentially:
(1) cause pedestrians to enter into the
roadway for the non-traffic purposes of
viewing
for-sale
signs
or
otherwise
inspecting the car in question, (2) distract
drivers’ attention away from the roadway,
(3) cause drivers to slow down or stop in
the roadway in order to inspect the car or
any provided contact information, or (4)
cause drivers to double-park in the roadway
and exit their own cars for the purposes of
inspecting the for-sale car or any provided
contact information.
(Id. at 3.)
The City also concedes that “it is possible to
envision a scenario in which the act of displaying a car for
7
sale on a city street could constitute a threat to the City’s
aesthetic interests.”
(Id. at 6.)
The City is “not currently
aware” of one traffic accident that was caused by a “For Sale”
sign on a vehicle parked on a City street.
(Id. at 7.)
On March 14, 2015, the City repealed the Ordinance,
based at least in part on the recognition that “the decades-old
restriction against parking a vehicle in the right of way for
the purposes of sale is no longer necessary, given the
significant changes in how used vehicles are sold and the
existing, content-neutral controls already in place[] in many
places in the City that already prevent a vehicle from being
parking in the right of way for any purpose for an extended
period of time.”
(Pl.’s Mem. Ex. 3 at 2.)
C. Analysis
“[T]he First and Fourteenth Amendments have never been
thought to give absolute protection to every individual to speak
whenever or wherever he pleases or to use any form of address in
any circumstances that he chooses.”
U.S. 15, 19 (1971).
Cohen v. California, 403
The First Amendment does, however, protect
various forms of expression and speech from attempted government
regulation in varying degrees.
Adventure Commc’ns, Inc. v. Ky.
Registry of Election Fin., 191 F.3d 429, 439 (4th Cir. 1999).
Courts “apply the most exacting scrutiny to regulations that
suppress, disadvantage, or impose differential burdens upon
8
speech because of its content.”
Id. (quoting Turner Broad. Sys.
v. Fed. Commc’ns Comm’n, 512 U.S. 622, 642 (1994)) (colloquially
known as strict scrutiny for content-based government
regulation).
However, “the regulation of commercial speech is
subject to an intermediate degree of scrutiny.”
Adventure
Commc’ns, 191 F.3d at 439 (citing Cent. Hudson Gas & Elec. Corp.
v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 566 (1980)).
Commercial speech is any “expression related solely to
the economic interests of the speaker and its audience.”
Cent.
Hudson, 447 U.S. at 561-62 (“Commercial expression not only
serves the economic interest of the speaker, but also assists
consumers and furthers the societal interest in the fullest
possible dissemination of information.”) (citations omitted).
“The First Amendment, as applied to the States through the
Fourteenth Amendment, protects commercial speech from
unwarranted governmental regulation.”
Id. (citing Va. Pharmacy
Bd. v. Va. Citizens Consumer Council, 425 U.S. 748, 761-62
(1976)).
This protection is not as great as protections
afforded to other constitutionally guaranteed forms of
expression, however.
Cent. Hudson, 447 U.S. at 563 (citing
Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456-57 (1978)
(“The protection available for particular commercial expression
turns on the nature both of the expression and of the
governmental interest served by its regulation.”).
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In Central
Hudson, the Supreme Court announced an intermediate scrutiny
test to determine the validity of government regulation of
commercial speech.
447 U.S. at 566.
First, “commercial messages . . . [must] accurately
inform the public about lawful activity.”
Id. at 563-64.
Second, if neither misleading nor related to unlawful activity,
the government “must assert a substantial interest to be
achieved by restrictions on commercial speech.”
Id. at 564.
Third, “the restriction must directly advance the state interest
involved; the regulation may not be sustained if it provides
only ineffective or remote support for the government’s
purpose.”
Id.
And fourth, “if the governmental interest could
be served as well by a more limited restriction on commercial
speech, the excessive restrictions cannot survive.”
Id.
The City bears the burden of proving that the
Ordinance survives intermediate scrutiny under Central Hudson.
See Fla. Bar v. Went For It, Inc., 515 U.S. 618, 625-26 (1995)
(“That burden. . . is not satisfied by mere speculation or
conjecture; rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate the harms it
recites are real and that its restriction will in fact alleviate
them.”) (citations and internal quotation marks omitted).
Because the Court finds that the Ordinance does not survive
intermediate scrutiny applicable to commercial speech, the Court
10
need not consider the more demanding standard of strict scrutiny
for the content-based nature of the restriction.
See Educ.
Media Co. at Va. Tech, Inc. v. Insley, 731 F.3d 291, 297-98 (4th
Cir. 2013) (citing Sorrell v. IMS Health, Inc., --- U.S. ---,
131 S. Ct. 2653 (2011)) (“[L]ike the Court in Sorrell, we need
not determine whether strict scrutiny is applicable here, given
that, as detailed below, we too hold that the challenged
regulation fails under intermediate scrutiny set forth in
Central Hudson.”).
The Court now turns to each factor under
Central Hudson.
In reaching the conclusion that the Ordinance
unconstitutionally restricted commercial speech, the Court is
guided by the Sixth Circuit’s opinion in Pagan v. Fruchey, 492
F.3d 766 (6th Cir. 2007).
There, an individual posted a “For
Sale” sign on his vehicle and left it parked on a public street
in front of his residence in Glendale, Ohio.
Id. at 769.
A
police officer notified the individual that he was in violation
of a village ordinance1 that prohibited parking a vehicle on a
1
“It shall be unlawful for any person to stand or park any
vehicle, motorized or towed, upon any public street, road, or
highway within the village or upon any unimproved privately
owned area within the village for the purpose of: (A) Displaying
it for sale, except that a homeowner may display a motor
vehicle, motorized or towed, for sale only when owned and titled
to said homeowner and/or a member of said household, and only
when parked upon an improved driveway or apron upon the owner’s
private property; (B) Washing, maintaining or repairing such
vehicle except repairs necessitated by emergency; and (C) any
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public street to display it for sale.
Id.
After attempting to
resolve his dispute with the village to no avail, the individual
filed suit alleging violation of his constitutional rights and
challenging the village ordinance.
Id.
The parties agreed that
the posting of “For Sale” signs on cars is commercial speech
protected by the First Amendment.
Id. at 771.
The issue before
the Sixth Circuit was whether the village established that the
ordinance “directly and materially advances its regulatory
interests and . . . that it has drawn the restriction narrowly.”
Id.
The Sixth Circuit reversed the district court’s grant
of summary judgment in favor of the village and held that the
ordinance was an unconstitutional restriction of commercial
speech, absent any evidence that the village’s interests of
traffic and pedestrian safety and aesthetic concerns were
advanced by the ordinance in a direct and material way.
778.
Id. at
As evidence of the village’s interests of safety and
aesthetics, the village offered an affidavit from the police
chief and asked the court to rely on “common sense” and
“obviousness” for why the regulation of speech was necessary.
Id. at 773-774.
But the Sixth Circuit found that there was no
advertising.” Glendale Traffic Code § 76.06. The Court did
determined that whether the conduct at issue was reached by
subsection (A) or (C) was “not germane” to the resolution of his
“as applied” First Amendment challenge. 492 F.3d at 770 n.2.
12
actual or direct evidence in the record that the ordinance
promoted safety and aesthetics.
Id. at 775.
Instead, the Court
noted that it was the village’s “obligation to provide something
in support of its regulation” other than conjecture from the
police chief and its requested reliance on common sense and
obviousness, holding that “it seems no great burden to require
[the village] to come forward with some evidence of the threat
or particular concerns” that is alleviated by the ordinance.
Id. at 775, 778 (emphasis in original).
The same is true here
in the record now before the Court on summary judgment.
First, there is no dispute that McLean’s “For Sale”
sign accurately informed the public about lawful activity.
Central Hudson, 447 U.S. at 563-64.
Second, assuming the City
has a substantial interest in promoting traffic and pedestrian
safety and regulating aesthetics, id. at 564, the City
ultimately fails to carry its burden under Central Hudson
because there is no evidence in the record that (1) the
Ordinance directly advanced this interest in safety and
aesthetics, and (2) the Ordinance was not broader than necessary
to accomplish the City’s goals.
Id.
In a manner very similar to the village in Pagan,
here, the City relies on sworn interrogatory responses from the
City’s Transportation Director and the Traffic Division Chief of
the City’s Department of Transportation stating that the
13
Ordinance is designed to advance pedestrian and vehicular
safety.
(Def.’s Opp’n at 2.)
Additionally, the City speculates
as to why the Ordinance was enacted in the first place, and
hypothesizes about various scenarios where displaying a
“For Sale” sign on a vehicle parked on a public street could
constitute a threat to the public health, safety, or welfare.
(Pl.’s Mem. Ex. 2 at 2.)
But just like in Pagan, there is no
direct evidence in the record to support the City’s conclusion
that the Ordinance directly advanced the City’s interests in
safety and aesthetics.
Central Hudson, 447 U.S. at 564.
Indeed, the City is “unaware” of even one traffic accident that
has ever been caused by conduct that violates the Ordinance.
(Pl.’s Mem. Ex. 2 at 7.)
To meet its burden under the third
prong of Central Hudson, the City cannot rely on assumptions,
speculation, or conjecture.
See Went For It, 515 U.S. at 625-
26; see also Pagan, 492 F.3d at 775-78.
Instead, it is the
City’s burden to prove that the Ordinance addressed threats to
safety and aesthetics that were “real and that its restriction
[did] in fact alleviate them to a material degree.”
v. Fane, 507 U.S. 761, 771 (1993).
Edenfield
This, the City has failed to
do.
Similarly, there is no evidence in the record that the
Ordinance was reasonably tailored to accomplish the City’s
interests, as required under the final prong of Central Hudson.
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447 U.S. at 564.
“[I]f there are numerous and obvious less-
burdensome alternatives to the restriction on commercial speech,
that is certainly a relevant consideration in determining
whether the ‘fit’ between ends and means is reasonable.”
City
of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418 n.13
(1993).
Another district court addressing this very issue found
a similar ordinance was broader than necessary to accomplish the
city’s interests.
See Burkow v. City of Los Angeles, 119 F.
Supp. 2d 1076, 1081-82 (C.D. Cal. 2000).
Indeed, in repealing
the Ordinance, the City itself recognized that “the decades-old
restriction against parking a vehicle in the right of way for
the purposes of sale is no longer necessary, given the
significant changes in how used vehicles are sold and the
existing, content-neutral controls already in place[] in many
places in the City that already prevent a vehicle from being
parked in the right of way for any purpose for an extended
period of time.”
(Pl.’s Mem. Ex. 3 at 2 (emphasis added).)
The
Court need not belabor the point by addressing potential
alternatives to the Ordinance, as it has been repealed, and the
City admits that less restrictive alternatives already exist.
Accordingly, the City has failed to meet its burden, and the
Court finds that the Ordinance was an unconstitutional
restriction on McLean’s right to commercial speech under the
First Amendment.
15
Without any material fact in dispute, the Court will
enter judgment in McLean’s favor and award nominal damages.
See
Covenant Media of S.C., LLC v. City of N. Charleston, 492 F.3d
421, 428-29 (4th Cir. 2007) (“[T]he City’s application of an
unconstitutional ordinance . . . is redressable at least by
nominal damages.”) (citing Carey v. Piphus, 435 U.S. 247, 266
(1978); see also Comm. for First Amendment v. Campbell, 962 F.2d
1517, 1526-27 (10th Cir. 1992) (“If proven, a violation of First
Amendment rights concerning freedom of expression entitles
plaintiff to at least nominal damages.”) (citations omitted).
The City contends that McLean is not entitled to nominal damages
under Reyes v. City of Lynchburg, 300 F.3d 449 (4th Cir. 2002).
But there, the Fourth Circuit expressly recognized that
“[n]ominal damages may be available in a § 1983 case if a
plaintiff was deprived of an absolute right yet did not suffer
an actual injury.”
Id. at 453 (citing Carey v. Piphus, 435 U.S.
247, 266 (1978)); see also Rock for Life-UMBC, 411 F. App’x at
549 (“We have recognized that an actual chilling of protected
speech is a discrete infringement of First Amendment rights that
gives rise to a claim under § 1983 for at least nominal
damages.”) (citing Reyes, 300 F.3d at 453).
And even though the
Fourth Circuit ultimately concluded that Reyes was not entitled
to nominal damages, it did so after deciding that his First
Amendment argument had “no merit,” and instead the Court focused
16
only on Reyes’ due process argument under the Fourteenth
Amendment.
Reyes, 300 F.3d at 455 n.8 (“Reyes claims that his
First Amendment right to free speech had been sufficiently child
to constitute a violation.
Under the facts of this case, we
find no merit to this claim.”).
In the end, the Court
determined that Reyes was “not deprived of any liberty interest
[under the Fourteenth Amendment] because the ordinance was later
held to be unconstitutional” and thus was not entitled to
nominal damages.
Id. at 457.
Here, the Court has found that
the Ordinance was an unconstitutional restriction on McLean’s
right to commercial speech under the First Amendment, and
therefore Reyes is not controlling.
Accordingly, the Court will
award nominal damages for the chilling effect the
unconstitutional Ordinance had on McLean’s First Amendment right
to commercial speech.
Covenant Media, 492 F.3d at 428-29.
IV. Conclusion
For the foregoing reasons, the Court will grant in
part the City’s motion to dismiss and grant McLean’s motion for
summary judgment.
An appropriate Order shall issue.
May 5, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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