Kory Watkins & Open Carry Tarrant Cnty. v. City of Arlington

KORY WATKINS and OPEN CARRY TARRANT COUNTY, Plaintiffs, v. CITY OF ARLINGTON, Defendant.

Civil Action No. 4:14-cv-381-O

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

SO ORDERED: July 14, 2014

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiffs' Combined Application for Preliminary Injunction and Temporary Restraining Order and Memorandum in Support (ECF Nos. 5-6), filed May 28, 2014; Defendant's Response and Brief in Opposition (ECF No. 11), filed June 2, 2014; and Plaintiffs' Reply (ECF No. 13), filed June 5, 2014. Plaintiffs seek injunctive relief preventing the enforcement of the City of Arlington's ordinance prohibiting interactions between pedestrians and occupants of vehicles at particular intersections in Arlington, asserting the ordinance unconstitutionally prohibits Plaintiffs' free speech rights. Having reviewed the motion, the briefing, and the applicable law, the Court finds that Plaintiffs' motion should be and is hereby GRANTED.

I. BACKGROUND

This case arises out of an ordinance adopted by the City of Arlington, Texas ("Arlington" or "the City") that prohibits interactions between pedestrians and occupants of vehicles at certain intersections in Arlington. In 1994, Arlington passed an ordinance in the "Streets and Sidewalks" Chapter of the Code of the City of Arlington that regulated interactions between pedestrians andoccupants of vehicles. Section 15.02 of the ordinance provided:

A. A person commits an offense if he or she stands on or in any manner occupies a shoulder, improved shoulder, sidewalk, median or public right-of-way in the areas set out in Section 15.03 to solicit or attempt to solicit a ride, employment or business or charitable contributions from the occupants of any vehicle, other than a lawfully parked vehicle. . . .

C. No person shall stand or walk on or in any manner occupy a shoulder, improved shoulder, sidewalk, median or public right-of-way for the purpose of distributing literature or any other object to the occupant of a vehicle, other than a lawfully parked vehicle.

App. Supp. Def.'s Resp. Ex. 1 (Section 15.02), App. at 77, ECF No. 11-1. Section 15.03 provided a list of specific intersections that were subject to the restrictions found in Section 15.02. See id. (Section 15.03), App. at 78-85.

Plaintiff Kory Watkins ("Watkins") is the coordinator for Plaintiff Open Carry Tarrant County ("Open Carry"). See Compl. ¶ 10, ECF No. 1. Watkins and Open Carry (collectively "Plaintiffs") seek to educate Texans regarding gun rights and organize and participate in group "walks" whereby participants walk on sidewalks and provide pocket-sized copies of the United States Constitution and gun rights literature to any individual that indicates that they would like one, including occupants of vehicles. Id. ¶ 12; Hearing Tr. 3, 14, July 7, 2014. In March 2014, while participating in a walk organized by Plaintiffs, two individuals were cited for violating Section 15.02 when they provided Constitutions to occupants of vehicles that were stopped at a red light in Arlington. Compl. ¶ 16.

Plaintiffs threatened to sue Arlington over the citations, and Arlington responded by dropping the charges against the individuals and putting a moratorium on enforcement of the ordinance. Seeid. ¶ 17; Hearing Tr. at 34. Prompted by the threat of a lawsuit, Arlington amended Section 15.02, effective May 29, 2014, which now provides:

A person commits an offense if he or she stands on or in any manner occupies a shoulder, improved shoulder, sidewalk, median or public right-of-way in the areas set out in Section 15.03 to solicit or attempt to solicit for purpose of an exchange with the occupants of a vehicle, sell or offer for sale any merchandise or service directly to the occupants of a vehicle, or distributes or attempts to distribute any object directly to the occupants of a vehicle, other than a lawfully parked vehicle.

App. Supp. Def.'s Resp. Ex. 3 (Am. Section 15.02), App. at 69, ECF No. 11-3; see also Hearing Tr. at 35 (counsel for Arlington noted that amendment to Section 15.02 was "certainly prompted by the threat of the lawsuit"). For the purposes of Section 15.02, "exchange" is "used in its broadest sense" and includes "the giving of a ride, contribution, employment, or business." App. Supp. Def.'s Resp. Ex. 3 (Am. Section 15.01), App. at 68, ECF No. 11-3.

Section 15.03 sets out a list of areas in Arlington that are subject to Section 15.02. Pursuant to Section 15.03, no person shall engage in the acts set forth in Section 15.02: (1) at any time within 500 feet of the intersections listed in Section 15.03(A.); (2) at any time within 1000 feet from the center point of the highway interchanges listed in Section 15.03(B.); (3) at any time at the intersections listed in Section 15.03(C.); and (4) before, during, and after specific events, including Texas Rangers and Dallas Cowboys games, at the intersections listed in Section 15.03(D.). See id. (Am. Section 15.03), App. at 70-76.

As a result of the amendment to Section 15.02 and Arlington's threatened enforcement of amended Section 15.02, Plaintiffs filed the instant action asserting that Arlington's actions violated Plaintiffs' right to free speech and expression as provided in the First and Fourteenth Amendments.See Compl. ¶¶ 3, 28. Plaintiffs have challenged Section 15.02 as facially unconstitutional and have also brought an as-applied challenge to Section 15.02. See id. ¶ 28. Plaintiffs also filed the instant application for injunctive relief seeking an order from the Court enjoining Arlington from enforcing Section 15.02. See Pls.' Appl., ECF No. 5.

Plaintiffs argue Arlington's "sudden interest" in interactions between pedestrians and occupants of vehicles and the enforcement of Section 15.02 is an attempt to threaten and harass Plaintiffs. See Compl. ¶¶ 19, 22, 25; Hearing Tr. at 3. Plaintiffs contend that prior to their events, the City never enforced Section 15.02 and allowed other organizations to interact with vehicles. See Compl. ¶ 22 ("No event precipitated this sudden interest in these restrictions other than the Open Carry events and public demonstrations . . . ."); Pls.' Mem. Supp. Ex. A (Watkins Aff.), App. at 2, ECF No. 6-1 ("Prior to our political activity, there have been many organizations which have had interaction with passing motorists . . . ."); Pls.' Reply Ex. A (Watkins Aff.), App. at 19, ECF No. 13 ("Prior to our walks, I was unaware of any enforcement of any anti-solicitation laws in Arlington. I have seen many bands, cheer squads, and athletic supports all over DFW, but I have never known a police officer to cite any of those groups."). Other than an accident in 1997 involving a Shriner, Plaintiffs assert they have been unable to obtain any information regarding accidents and political rallies in Arlington and argue that nobody has been injured "during any similar exercise by any type of . . . group or organization . . . such as the many car washes, fire-fighting fund-raising events, or 'send my band member on a field trip' fund-raising efforts that are ongoing year-round in Arlington." Compl. ¶ 15; see also Pls.' Mem. Supp. Ex. A (Watkins Aff.), App. at 2, ECF No. 6-1.

Arlington contends that Section 15.02 is about public safety, but Plaintiffs assert that Arlington did not conduct any study to show that Plaintiffs' actions are dangerous and argueArlington is using Section 15.02 to "deliberately target[]" Plaintiffs. See Compl. ¶¶ 20, 22, 27. Although a violation of Section 15.02 is a misdemeanor, Plaintiffs allege that Arlington police officers have threatened to jail participants for violations of Section 15.02. Pls.' Mem. Supp. Ex. A (Watkins Aff.), App. at 3, ECF No. 6-1; see also App. Supp. Defs.' Resp. Ex. 3 (Am. Section 16.01), App. at 78, ECF No. 11-3 ("Violation of any provision of this Chapter shall be considered a misdemeanor punishable by a fine not to exceed . . . $500.00 . . . ."). Plaintiffs also argue that statements made by members of the Arlington City Council indicate that Section 15.02 was specifically aimed at preventing Plaintiffs from conducting their walks. See Compl. ¶ 20; Pls.' Reply Ex. A (Watkins Aff.), App. at 16, 18, ECF No. 13.

Plaintiffs argue that Arlington's threatened enforcement of Section 15.02 "has caused a chilling effect" on Plaintiffs' speech because "no one wants to be harassed and threatened with time in jail for doing nothing more than handing out the United States Constitution to those who have stated that they wish to receive it." See Compl. ¶¶ 20, 25; see also Hearing Tr. at 5 ("[I]f we plan to do a demonstration in Arlington, there are definitely some people who do not want to come because they could be cited or arrested.").

On July 7, 2014, the Court held an evidentiary hearing on Plaintiffs' motion for injunctive relief. At the hearing, Watkins testified that Plaintiffs' "general practice[]" is to conduct walks and hand out Constitutions and other literature concerning gun laws in Texas to people that want the literature. See Hearing Tr. at 3 ("It's . . . a mutual agreement between two citizens . . . ."). Watkins stated that Plaintiffs provide information to "anybody who is wanting our information," including occupants of vehicles, but claimed that Plaintiffs only interact with vehicles when they are parked at a red light. See id. at 14-15.

Watkins testified that in the past year he has personally been on over 200 walks and has organized and been a part of "[h]undreds and hundreds" of walks and, to his knowledge, nobody has ever been hurt or cited for impeding traffic. See id. at 3-4. He stated that the only time anyone has been cited for something were the two individuals cited for violations of the previous version of Section 15.02. Id. at 4. Watkins further testified that Plaintiffs conducted walks in multiple cities, which were "very okay" with what Plaintiffs are doing, but stated that Plaintiffs are being harassed and...