United States District Court, D. Maryland
For Michael Corral, Plaintiff: John R Garza, LEAD ATTORNEY, Garza Regan and Associates PC, Rockville, MD; Nathan Wesley Kellum, PRO HAC VICE, Center for Religious Expression, Memphis, TN.
For Montgomery County, D.M. Smith, Officer, Norman W. Brissett, Officer, Defendants: Patricia P Via, LEAD ATTORNEY, Office of the County Attorney for Montgomery County MD, Rockville, MD.
For Isiah Leggett, in his official capacity as County Executive for Montgomery County, Defendant: Patricia P Via, Office of the County Attorney for Montgomery County MD, Rockville, MD.
DEBORAH K. CHASANOW, United States District Judge.
Presently pending and ready for review in this First Amendment case are the motions to dismiss or, in the alternative, for summary judgment filed by Defendants Montgomery County, Isiah Leggett, D.M. Smith, and Norman W. Brissett. (ECF Nos. 15 and 17). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motions will be granted in part and denied in part.
I. Factual Background
Unless otherwise noted, the facts outlined here are construed in the light most favorable to Plaintiff, the nonmoving party.
On March 23, 2012, Plaintiff Michael Corral and his friend Debra Mehaffey were preaching their religious beliefs on the sidewalk on the southwest corner of Fenton Street and Ellsworth Drive in Silver Spring, Maryland. (ECF No. 9, Verified Amended Compl. ¶ ¶ 51-53). That corner is within the commercial development known as " Downtown Silver Spring." The sidewalk is in front of a large movie theater and is heavily trafficked by pedestrians. ( See ECF Nos. 5-6 to 5-9, photographs of the southwest corner of Fenton Street and Ellsworth Drive). In addition to preaching, Plaintiff and Ms. Mehaffey also erected a small cross attached to a piece of luggage and handed out literature.
Downtown Silver Spring was borne out of a development agreement between the County and a group of private developers. As part of the agreement, the County leased public space, including Ellsworth Drive and its sidewalks, to these developers via an entity known as PFA-B, LLC (hereinafter " PFA" ). When the deed was recorded, the County reserved easements for public use for a portion of the leased land, including Ellsworth Drive. The lease reserved to the County an easement for the portion of Ellsworth Drive at issue. This easement defined the area as " Public Use Space," which the County Code provides is " '[s]pace required by the sector plan and other space devoted to such uses as space for public enjoyment.'" (ECF No. 5-4, at 2 ( quoting Section 59-A-2.1 of the Zoning Ordinance of Montgomery County)). The County retained an easement and right of passage and use for pedestrian and vehicular ingress and egress on, over and across the public use spaces. PFA could impose and enforce such reasonable rules and regulations as it deemed necessary to maintain order and to promote the safety, security and economic success of Downtown Silver Spring. ( Id. ).
The status of Downtown Silver Spring as public or private property for purposes of the First Amendment arose earlier. In June 2007, it came to the County's attention that PFA was requiring anyone wishing to take photographs on Ellsworth Drive to register first with PFA's security office. The Office of the County Attorney was asked to research whether PFA could restrict photography and other expressive activities in this manner. The County Attorney concluded that the roads and sidewalks of Downtown Silver Spring were public fora because of the physical characteristics of Downtown Silver Spring, its seamless incorporation with the surrounding roads and sidewalks, the lease's provision
that PFA has no authority to restrict pedestrian ingress and egress, and the history of these roads and sidewalks as public fora. ( See ECF No. 5-4, at 3-6). PFA could impose regulations on expression, but they had to be content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. ( Id. at 6-7). Presently, the County concedes that at minimum, it considers and treats the sidewalk as a traditional public forum.
After about thirty minutes of Plaintiff's preaching on March 23, he was confronted by a private security guard for the movie theater, who told him to stop preaching and handing out literature on the corner because it was private property. Plaintiff and the guard then discussed the matter with Defendant Officer Norman W. Brissett of the Montgomery County Department of Police. Officer Brissett confirmed that the property was private and that Plaintiff and Ms. Mehaffey would have to move across the street into Veterans' Plaza, a public park, if they wanted to continue preaching and handing out literature. ( Id. ¶ ¶ 58-64). As the conversation continued, Officer Brissett's supervisor, Defendant Officer D.M. Smith arrived. Officer Smith told Plaintiff that it is a common misconception that the sidewalk in front of the movie theater is public property, but in fact it is private property owned by the Peterson Companies, which operate the movie theater. Officer Smith equated the sidewalk to one's house, where the police will act to expel unwanted visitors. ( Id. ¶ ¶ 71-75, 77). Ms. Mehaffey pointed out that this sidewalk, unlike one's home, has been opened to the public, but Officer Smith did not accept the distinction. ( Id. ¶ 78). Because the officers concluded that the property was private, and because Plaintiff refused to vacate, they issued Plaintiff a trespass notice that precluded him for one year from entering Downtown Silver Spring, all of which they believed was owned by PFA. ( Id. ¶ 82; ECF No. 5-11). Plaintiff moved to Veterans' Plaza, attempted to preach his message, but found little success. He did not seek to speak elsewhere in Silver Spring out of fear of arrest. (ECF No. 9 ¶ 83).
Plaintiff believed that the sidewalk was not private property, and maintained that he had a right to preach there, provided he did not impede the flow of pedestrian traffic. On April 23, 2012, through counsel, Plaintiff wrote to a number of Montgomery County officials requesting that his First Amendment rights be respected in Downtown Silver Spring, and specifically requested: (1) immediate revocation of the trespass notice; (2) nominal damages for violating Plaintiff's constitutional rights; and (3) reasonable attorney's fees. (ECF No. 5-12). On May 18, 2012, the County Attorney for Montgomery County responded, stating that " [Plaintiff] was not banned from expressing his religious beliefs on a public sidewalk. . . . Instead, because of pedestrian traffic flow and safety concerns on that property, which is privately owned, the police asked [Plaintiff] to simply move to a nearby public area." (ECF No. 5-14, at 1 (emphasis added)). The County Attorney explained that the street corner in question is private property, but acknowledged that " because of its nature and location to adjoining sidewalks and walkways, it shares certain similarities with the more traditional forum and one could argue that the area should be viewed as a public forum." ( Id. at 2 (emphasis added)). The County made no such concession but stated that even so, " the government may impose time, place, and manner regulations which are content-neutral,
narrowly tailored to serve a significant government interest, and which leave open ample alternative channels of communication." ( Id. ).
The letter went on to state that that corner of Ellsworth and Fenton is heavily trafficked, including when Plaintiff was preaching. According to the County Attorney,
[b]ecause of where he was located, people traveling in the crosswalk to that corner either had to step out of the crosswalk or move to the left or right in order to get around [Plaintiff] to get to the sidewalk area. People trying to cross the road from that corner had to go around [Plaintiff] and sometimes had to step into the road outside of the crosswalk. Generally, his location " blocked" people from moving freely in that area and they were forced to go around him. With a heavy flow of pedestrian traffic, this also caused some pedestrians to " bump" into each other and to become " backed-up" causing congestion on that corner.
( Id. ). The officers simply wanted Plaintiff to move across the street where there is more room, in order " to maintain an orderly flow of pedestrians and ensure the safety of the area." ( Id. ). The letter went on to note that Plaintiff was in violation of Montgomery County Code, Section 32-14, which prohibits an individual at, on, or in a public place or place open to the public from interfering with or hindering the free passage of pedestrian or vehicular traffic. The County Attorney contended that the officers' request was a permissible time, place, and manner regulation but, nonetheless, the police agreed to vacate Plaintiff's trespass notice. Additionally, " the police request that [Plaintiff] continue to convey his religious beliefs at the alternative location so that the orderly and safe flow of pedestrian traffic in this area is maintained." ( Id. at 3 (emphasis added)).
Plaintiff disputes the County's justifications on two bases. First, he argues that he was situated on the corner between the north-south and east-west crosswalks, thereby not blocking those paths, nor was the sidewalk so crowded that his presence was blocking pedestrians. Second, he maintains that Officers Smith and Brissett made no mention of any disturbance as the reason he was being told to move; instead, they repeatedly stated that he had to move because he was on private property. (ECF No. 9 ¶ 89). Plaintiff had a video camera along and filmed his interactions with Officers Smith and Brissett. The video reveals that neither officer made any reference to Plaintiff's interference with the flow of pedestrian traffic, instead consistently maintaining that Plaintiff had to vacate because the property owner was invoking his privilege of ejecting unwanted visitors. (ECF No. 5-10). As part of their motion to dismiss, Defendants provided affidavits of Officers Smith and Brissett. Officer Brissett states that during the time in question, the spot where Plaintiff was preaching " was very crowded with people and . . . did, in my opinion, present problems with the flow of pedestrian traffic." (ECF No. 17-2 ¶ 6). He has worked as a police officer in that area for many years and states that there is a high volume of pedestrian traffic, the impediment of which presents a safety concern. ( Id. ¶ ¶ 11-12). He acknowledges that his discussion with Plaintiff centered around his concern that the sidewalk was private property, but Plaintiff's location and his impact on the free flow of pedestrian traffic was also a concern, albeit unstated. Officer Brissett explained that he did not raise the pedestrian traffic concern because he " was trying to diffuse the private property issue raised by the security officer while still recognizing [Plaintiff's] desire
to speak his message." ( Id. ¶ 14). His desire to move Plaintiff to Veterans' Plaza was borne out of a concern for the safety of pedestrians in the area. Officer Smith's affidavit is substantially similar. ( See ECF No. 17-3).
After Plaintiff filed his complaint in the instant suit, his attorney spoke with the County Attorney, which the County Attorney memorialized in a letter. This letter conceded that this sidewalk is in fact a traditional public forum on which Plaintiff may preach, and that the trespass notice was indeed vacated. (ECF No. 6-3, at 1-2). Regardless of the perceived status of the sidewalk, the letter states that " [Plaintiff] was treated as if he was in a public forum. That is, he was not then and is not now precluded from expressing himself in the public forum." ( Id. at 2). The letter also provided that
as long as [Plaintiff] does not block the crosswalks in the Downtown Silver Spring area, impact the safety and free flow of pedestrian traffic, or otherwise act in a manner that violates the law, [Plaintiff] may continue to engage in his expressive activities in Downtown Silver Spring in the public areas, including sidewalks along Ellsworth Drive, subject to any time, place and manner restrictions.
( Id. ).
II. Procedural Background
On February 8, 2013, Plaintiff filed a verified complaint alleging that his First Amendment rights had been abridged by the County's complete ban on his speech. (ECF No. 1). On February 14, 2013, Plaintiff filed a motion for a preliminary injunction, to prevent the County from " applying its policy and practice of banning expression on sidewalks alongside the public streets in Downtown Silver Spring." (ECF No. 5, at 1). On May 31, 2013, the court denied Plaintiff's motion, concluding that he had not established that he was suffering actual, imminent, and irreparable harm because the trespass notice had been vacated and Plaintiff was not precluded from expressing himself in the public forum. (ECF No. 22).
On March 22, 2013, Plaintiff filed an amended complaint correcting parties' names. (ECF No. 9). Pursuant to 42 U.S.C. § 1983, Plaintiff alleges that Montgomery County has a policy and practice of permitting a private entity to banish expression on the sidewalks of Downtown Silver Spring that he claims violates his First Amendment rights both on its face and as applied to Plaintiff. Further, Plaintiff claims the policy violates the Due Process Clause as it is vague and lacks sufficient objective standards to curtail the discretion of officials. Plaintiff requests entry of a judgment and decree that the policy is unconstitutional both on its face and as applied; a permanent injunction barring the County and other Defendants from enforcing the policy; an award of nominal damages; and attorney's fees and costs in accordance with 42 U.S.C. § 1988. On April 8, 2013, Defendants Montgomery County and Isiah Leggett filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment. (ECF No. 15). Plaintiff opposed the motion on April 12, 2013 (ECF No. 16), to which Defendants replied on April 26, 2013 ...