Roswell v. Mayor & City Council of Balt.

671 F.Supp.3d 607

John ROSWELL, Plaintiff, v. MAYOR & CITY COUNCIL OF BALTIMORE, Defendant.

Civil Action No. RDB-22-2587

United States District Court, D. Maryland

Signed April 28, 2023

Cameron Eric Guenzel, Pro Hac Vice, Johnson Flodman Guenzel & Widger, Lincoln, NE, J. Calvin Jenkins, Jr., Law Offices of J. Calvin Jenkins Jr., Towson, MD, for Plaintiff.

Renita Lynne Collins, Baltimore City Solicitor's Office, Baltimore, MD, Hanna Marie C. Sheehan, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge

This Court conducted a hearing on April 24, 2023, for arguments concerning Plaintiff John Roswell's Motion for Preliminary Injunction (ECF No. 2) and Motion to Defer consideration of Defendant Mayor and City Council of Baltimore's ("City")¹ Motion to Dismiss or in the Alternative for Summary Judgment ("City's Motion") (ECF No. 6.). (ECF No. 13.)² In brief, Plaintiff argued that he was entitled to a preliminary injunction barring the City from enforcing against him certain ordinances prohibiting the use of A-frame signs on public walkways, contending that these ordinances violate his First Amendment rights to free speech and free exercise of religion. (See generally ECF No. 2.) Plaintiff also argued that he required discovery in order to respond to the City's Motion. (See generally ECF No. 13.) For the reasons stated on the record on April 24, 2023, the Court has DENIED both the Motion for Preliminary Injunction and the Motion to Defer. (ECF No. 22.) This Memorandum Opinion supplements the basis for those rulings.

BACKGROUND³

Plaintiff John Roswell routinely stands on the sidewalk outside of a Planned Parenthood Facility on N. Howard Street in Baltimore, Maryland, to "communicate with women considering abortions as they enter or exit the facility." (ECF No. 1, ¶ 13.) Plaintiff presents women with "information regarding abortion and its alternatives" and displays a "visible demonstration of his deeply held religious convictions that human lives are being terminated inside the facility." (Id. ¶ 14.) To communicate these messages, Plaintiff "relied upon several stand-alone, A-frame signs" propped on the sidewalk directly outside of Planned Parenthood. (Id. ¶ 15.) The A-frame signs include statements such as "Unborn Babies Are Human and Feel Pain." (Id.) Plaintiff also verbally communicates his messages and distributes leaflets to the women entering and exiting the facility. (Id.)

On January 22, 2020, an inspector with the Department of Housing and Community Development warned Plaintiff that he needed a permit to place the signs on the sidewalk and that he would otherwise be fined $500/day for violating a Baltimore City ordinance. (Id. ¶ 16.) That code, Baltimore City Code, Article 19 (Police Ordinances) § 45-2 ("Police Ordinance"), states, in pertinent part: "No person may post, place, or affix a sign: . . . (5) in any way that . . . (ii) protrudes into a street or sidewalk so as to interfere with the safe passage of the public; or (iii) otherwise poses a hazard to motorists, pedestrians, or cyclists; (6) on any other property owned, leased, or controlled by the City." Plaintiff states that he then discovered that he needed two permits to erect his A-frame signs on the sidewalk to avoid the fine: (1) a "minor privilege" permit and (2) a "sign permit." (Id. ¶¶ 16, 17.)⁴ He alleges that the filing fees for both permits "total more than $100." (Id.) Plaintiff attaches to his Complaint a copy of the application for a minor privilege permit. (See ECF No. 1-1 at 25-27.)

Plaintiff protests in front of the Planned Parenthood located at the intersection of Maryland Route 40 and Howard Street, directly in front of the MTA Light Rail Path, and is part of the C-5-HS Zoning District. (See ECF No. 8-2 at 4.) In conjunction with the Police Ordinance, Baltimore City Code, Art. 32, § 17-201, only permits an individual to post a sign if the "Table 17-201: Sign Regulations" chart "expressly lists that sign type as allowed within that zoning district" and if "the sign complies will all other requirements of this title applicable to that sign type." For the C-5-HS zoning district, Table 17-201 states that one A-frame sign is allowed per tenant with approval method "A," and a size restriction of 8 square foot per side, with a maximum 4-foot height. Approval method "A" means "allowed." Baltimore City Code, Art. 32, § 1-205(b)(2)(i). The use of A-frame signs is governed by Baltimore City Code, Art. 32, § 17-401 ("Zoning Ordinance"), which states that an A-frame sign is permitted only for "non-residential uses" and: "(i) may only be placed: (A) on the same property as the non-residential use to which it relates, within 30 feet of that use's primary entrance; or (B) on the right-of-way in front of that property; and (ii) may not: (A) interfere with pedestrian traffic; or (B) violate standards of accessibility as required by the ADA or other accessibility codes."

To erect an A-frame sign in compliance with the Police and Zoning ordinances, one must obtain the aforementioned minor privilege permit. In order to begin the application for a minor privilege permit, the applicant is required to "check a box to swear under the penalty of perjury" that he is " 'the owner of the subject property, or is the duly authorized agent of the owner with full and specific consent and authorization to act for the owner for this application.' " (ECF No. 1, ¶ 18) (quoting the permit application). In this case, Planned Parenthood of Maryland, Inc. is the relevant property owner. (Id. ¶ 19.) Although he did not inquire, Plaintiff concluded that he would be unable to obtain consent for the permit from Planned Parenthood. (Id. ¶ 20.) In lieu of applying for a permit, Plaintiff's counsel sent a letter to counsel for the City on June 26, 2020, contending that the permit requirements violated Plaintiff's constitutional rights. (Id.) Plaintiff did not receive a response and subsequently resumed placing his signs on the sidewalk on July 13, 2020. (Id.)

Thereafter, on July 23, 2020, a City inspector issued a citation to Plaintiff for violating Art. 19, § 45-2. (Id. ¶ 21.) The citation charged Plaintiff with engaging in "[p]rohibited posting of signs on public property" and carried with it a fine of $500. (Id.) (internal quotation marks omitted). More specifically, Plaintiff was cited because he placed two A-frame signs on the sidewalk and "at least one sign . . . around a city pole." (Id. ¶ 20.) However, the latter "is not the subject of this action." (Id.) Pursuant to direction under the citation, Plaintiff appealed the citation to the Environmental Control Board and the hearing officer found that Plaintiff illegally placed a sign on and around City poles, but expressly declined to address the legality of his A-frame signs. (Id. ¶¶ 22-24.) The hearing officer reduced the fine from $500 to $10 in an opinion dated October 26, 2021. (Id. ¶ 24; ECF No. 1-1 at 52-56.)

Plaintiff asserts that he has since ceased placing A-frame signs on the sidewalk outside of Planned Parenthood because he is "fearful of exercising his constitutionally protected rights." (ECF No. 1, ¶ 25.) During the April 24, 2023, hearing, Plaintiff stated that he has continued to protest in front of the Planned Parenthood almost daily, and most recently on April 21, 2023, three days prior to the hearing. However, since receiving the citation, he does so without the use of his A-frame signs.

On October 10, 2022, approximately one year following the Environmental Control Board's finding, Plaintiff filed his two-count Complaint. (ECF No. 1.) In Count One, Plaintiff asserts that his freedom of speech under the First Amendment to the United States Constitution has been violated as the City's "interpretation and application of their permit requirement impose an unconstitutional restriction on constitutionally protected speech in traditional public fora." (Id. ¶ 31.) In Count Two, Plaintiff alleges that the City's regulations violate the Free Exercise Clause under the First and Fourteenth Amendments to the Constitution because he is unable to communicate his "sincerely held religious beliefs" and "views on abortions." (Id. ¶ 46.)

On the same day, Plaintiff filed his Motion for Preliminary Injunction. (ECF No. 2.) Plaintiff argues that, "[w]ithout justification," the City ordinances "ban [him] as a non-property owner from using signs on the public sidewalk, require [him] to overcome seemingly endless bureaucratic hurdles and pay excessive fees, allow [the City] unfettered discretion as to whether to approve or deny permits and what cost to charge, impermissibly treat secular activities more favorable than [his] religious activities, and discriminate based on speaker and viewpoint." (ECF No. 2-2 at 14-15.) As a result, Plaintiff contends that the City ordinances "are not narrowly tailored and do not leave open ample alternative channels of communication." (Id. at 16.)

On November 11, 2022, the City filed a Motion to Dismiss or in the Alternative for Summary Judgment. (ECF No. 6.) On November 18, 2022, Plaintiff filed a Motion to Defer consideration of the City's Motion to permit him to engage in discovery, arguing that, although he was "not unmindful of the apparent contradiction in simultaneously moving for Preliminary Injunction and requesting time to conduct additional discovery," he required formal discovery to "fully refute" the City's Motion. (ECF No. 13, ¶ 4.)

The Court heard oral arguments on April 24, 2023, and has DENIED Plaintiff's Motion for Preliminary Injunction (ECF No. 2) and Motion to Defer (ECF No. 13). (ECF No. 22.) In addition, the Court set deadlines for briefing on the City's Motion. (ECF No. 23.)

STANDARD OF REVIEW

I. Preliminary Injunction

"The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." United States v. South Carolina, 720 F.3d 518, 524 (4th Cir. 2013) (quoting...