ROSS v. EARLY

they approve a land use change that allows something that the zoning doesn't allow the same uses as the land use, they're mutually exclusive in some cases. I don't think they can do that. I think the — our law department would advise the City Commission not to approve one without the other.

Ms. Slazyk additionally testified that "[w]hen we do an analysis of a land use and zoning classification, we don't look at it in a vacuum. We study the area." She explained that their study included a review of how the surrounding properties were zoned and what they were actually being used for.

It is thus clear that: (1) the FLUM Amendment, zoning change, and special use permit all traveled together and were decided together; (2) the City did not make a legislative decision to reformulate its policy regarding the marine industry and land use along the Miami River and in fact, the City decided to leave that decision for another day; (3) the City's decision to approve the FLUM Amendment was, instead, based on its decision to approve the proposed mixed use project which required a zoning change from SD-4.2 water dependent/water related Industrial to non-water dependent/water related Restricted Commercial, which in turn necessitated the FLUM Amendment, not the other way around.

Thus, when the dissent argues that: "[b]ecause no land development, that is zoning, issues were involved, the ALJ properly refused to consider those parts of this sub-element dealing with zoning ordinances`"; "planning is not zoning and changing the Plan does not automatically result in changing the zoning"; "zoning follows planning; planning is not affected by zoning"; "a new use designation does not mean that the rezoning request will or must be granted," and "the fact that this parcel of property is zoned SD-4.2, is wholly irrelevant as to whether changing the land use designation of this property from Industrial to Restricted Commercial is consistent with the Port of Miami River sub-element," ignores the record in this case and pretends that Balbino's land use amendment application was presented and considered in a vacuum and on its own merits. The record is the record. We cannot ignore it.

Balbino's FLUM Amendment is clearly inconsistent with the following mandates found in the previously cited objectives and policies listed in the Port of Miami River subelement of the Comprehensive Plan and which the ALJ refused to consider: Objective PA-3.1, which requires the City to "protect the Port of Miami River from encroachment by non water-dependent or water-related land uses"; Policy PA-3.1.1, which requires the City to "encourage the establishment and maintenance of water-dependent and water-related uses along the banks of the Miami River, . . . and to discourage encroachment by incompatible uses"; Policy PA-3.1.2, which requires the City to encourage the development and expansion of the Port of Miami River; Policy 3.1.3, which requires the City to encourage development of compatible land uses in the vicinity of the Port of Miami River; and Policy PA-3.3.1, which requires the City to "support the functions of the Port of Miami River consistent with future goals and objectives of the Comprehensive Plan, particularly with respect to the unique characteristics of the Port of Miami River's location and its economic position and functioning within the local maritime industry."

Policy PA-3.3.1 does not involve land development. Its relevance is therefore not in dispute.

Thus, we conclude that the ALJ erred in refusing to allow the appellants to offer evidence as to Balbino's FLUM Amendment's inconsistency with the Port of Miami subelement of the Comprehensive Plan and for failing to consider this subelement in determining whether the FLUM Amendment was consistent with the Comprehensive Plan. Based on the record, we also reject the notion that the City's decision to grant the FLUM Amendment was made after legislatively reformulating its policy regarding the overall vision of the Miami River.

B. Coastal Management

The Comprehensive Plan also contains a section or subelement, titled "Coastal Management," which addresses the coastal areas located within the City. One of the goals specified in this section is to "[p]rovide an adequate supply of land for water dependent uses." Goal CM-3. In order to accomplish this goal, Objective CM-3.1 provides: "Allow no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami." (emphasis added). Moreover, Policy CM-3.1.1 states: "Future land use and development regulations will encourage water dependent uses along the shoreline."

Despite the stated goals, objectives, and policies regarding the coast of the Miami River, the City approved the Balbino FLUM Amendment to the Comprehensive Plan, changing the land use designation from Industrial to Restricted Commercial and approved a change in the zoning from SD-4.2 Waterfront Industrial to Restricted Commercial. These changes will preclude the very use the Comprehensive Plan specifies should be protected and it is obviously a net loss of acreage devoted to water-dependent use, thereby conflicting with Coastal Management Goal CM-3. Instead of "[p]rovid[ing] an adequate supply of land for water dependent uses[,] . . . [a]llow[ing] no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami," and using its land use regulations to "encourage water dependent uses along the shoreline," the City approved this land use change to enable it to eliminate the special Water-front Industrial zoning and avoid the restriction against residential development. The result is an obvious net loss of acreage devoted to water-dependent use and decreases the available supply of land for water-dependent uses without conducting a study and determining whether an adequate supply of land for water-dependent uses still remains.

In addressing Goal CM-3, the ALJ concluded that because the change to a Restricted Commercial land use designation will still permit a commercial marina to operate at that location, the FLUM Amendment will result in no loss of acreage devoted to water-dependent use. This conclusion is unsupported by competent record evidence and ignores the intent of Coastal Management Goal CM-3, the record in this case, and the distinction between acreage "devoted to a water-dependent use" and acreage that "may be used for a marina" but may not be used for any other water-dependent use.

The FLUM Amendment and zoning changes, to Restricted Commercial, with the concurrent approval by the City to allow Balbino to construct over one thousand residential units that are neither water-dependent nor water-related is clearly inconsistent with the goals, objectives, and stated policies of the Coastal Management Section of the Comprehensive Plan. The FLUM Amendment, which allows residential uses and the reclassification of this property from Industrial to Restricted Commercial, has in fact resulted in the elimination of the commercial marina currently operating at that location, as well as twenty-seven of the ninety-three dry boat slips on the Miami River. The Balbino FLUM Amendment to the Comprehensive Plan, changing the land use designation, which is primarily Industrial to Restricted Commercial, and the zoning from SD-4.2 Waterfront Industrial to Restricted Commercial, will result in a net loss of acreage devoted to water-dependent use. The loss of acreage specifically reserved for water-dependent or water-related use conflicts with Coastal Management Goal CM-3. Instead of "[p]rovid[ing] an adequate supply of land for water dependent uses," . . . "[a]llow[ing] no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami," and using its land use regulations to "encourage water dependent uses along the shoreline," these changes to this property's land use [and zoning] will deplete land specifically reserved by the City for Industrial water-dependent uses in its Comprehensive Plan.

The Comprehensive Plan's goals, objectives, and policy considerations regarding coastal areas, and specifically those coastal areas along the Miami River, are in recognition of how important the shipping industry and other water-dependent uses are to the City's economy.

In view of the importance to the local economy, the limited available areas suitable for high intensity water dependent uses, and strong population pressures of the 1960's, the City created in the mid 1960's a zoning classification entitled Waterfront Industrial. This zoning classification strictly prohibits uses that are not directly related to waterfront activities.

. . . .

Since any new water dependent or related facilities would involve redevelopment of existing waterfront properties, these zoning ordinances are considered sufficient to insure that adequate land area for water-dependent or related uses is protected.

. . . .

Along the Miami River, an economic study in 1986 reported that the firms located in the study area . . . have a significant impact on the Miami economy. They employ an estimated 7,000 workers on a full time basis and over 600 part time. Total sales are estimated at $613 million, or about $87,000 for a full time worker. An additional indirect impact of $1.2 billion of business activity in the Miami area is created by firms in the study area. Many of the firms located in the study area are marine related businesses in part composed of water dependent and water related activities.

Miami Comprehensive Neighborhood Plan 1989-2000, Volume II, Data and Analysis, Coastal Management Element (emphasis added).

The ALJ, however, failed to consider the importance of the marine industry to the City's economy or to appreciate that the Industrial land use designation and Water-front Industrial SD-4 zoning classification were created to protect those uses and to ensure that there will be adequate land area for water-dependent and water related uses. Because there was no evidence presented, nor was a study performed, to evaluate the sufficiency of the remaining SD-4 zoned land along the Miami River, in light of the expected future increases in shipping and other related marine services along the river due to the dredging of the Miami River, the ALJ had insufficient evidence to conclude that the FLUM Amendment would not be inconsistent with the Coastal Management section of the Comprehensive Plan.

C. Future Land Use

As with the two preceding sections or subelements of the Comprehensive Plan, the ALJ made findings that were unsupported by competent evidence and he failed to consider important relevant goals contained in the Future Land Use section of the Comprehensive Plan.

The Future Land Use section of the Comprehensive Plan provides that one of its future land use goals is to "[maintain a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods; (2) fosters redevelopment and revitalization of blighted or declining areas; (3) promotes and facilitates economic development and the growth of job opportunities in the city . . . and (6) protects and conserves the city's significant natural and coastal resources." Goal LU-1.

The ALJ found that the FLUM Amendment is consistent with Goal LU-1. He concluded that because the "FLUM Amendment will eliminate the potential for development of industrial uses that may generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact[,]" it will improve the quality of life of the surrounding neighborhoods, and it is, therefore, consistent with LU-1(1). He additionally found that because the Balbino property is located in Allapattah, a declining area, the FLUM Amendment will provide redevelopment and revitalization of the area, and is, therefore, consistent with subpart LU-1(2). There was, however, no actual evidence presented to support these conclusions, and the evidence that was presented, is contrary.

The Future Land Use section of the Comprehensive Plan, Goal LU-1(1) requires the City to "[m]aintain a land use pattern that protects and enhances the quality of life in the city's residential neighborhoods." Ms. Stetser, a resident who lives in Allapattah near the Balbino property, testified that rather than "enhancing the quality of life" in the neighborhood, the addition of over two thousand additional cars to the already congested two-lane North River Drive and to the 17th Avenue bridge, which already backs up, will cause further delays and frustration to the neighborhood's drivers. This evidence was unrefuted. In fact, as will be discussed later, no transportation studies were conducted.

Additionally, the following evidence, which the ALJ failed to consider, was presented. In 1997, the Florida Legislature created the Miami River Study Commission to assess the various issues along the Miami River and to make recommendations for improving its management; in 1998, the Legislature established the Miami River Commission to coordinate state, regional, and local activities impacting the Miami River; and in 1999, the Legislature adopted the Urban Infill and Redevelopment Act to assist local governments in implementing their local comprehensive plans. In 2000, in recognition of the importance of the Miami River and the need for a single, multi-jurisdictional plan for the entire Miami River Corridor, the City, Miami-Dade County, and the Miami River Commission executed a joint planning agreement to create an urban infill plan for the Miami River Corridor. After two years of collaborative effort, the Infill Plan was adopted by the Miami River Commission and Miami-Dade County as their Strategic Plan. While the City has not yet adopted the Infill Plan it helped create, it does periodically refer to data contained in the Infill Plan, and it was relied upon, in part, by the City, the ALJ, and Balbino during the proceedings.

The Infill Plan identifies the Allapattah area as a neighborhood stretching from N.W. 17th Avenue to N.W. 27th Avenue on the north bank of the Miami River. The Balbino property is located at approximately N.W. 18th Avenue directly on the north side of the Miami River. The Infill Plan notes that Allapattah is the home to thriving marinas, two of the largest yacht basins on the Miami River, numerous produce and flower markets, and a thriving wholesale and retail clothing district on N.W. 20th Street. In addressing the waterfront properties along the Miami River, the Infill Plan specifically states that both high density and lower density residential development may not be the most appropriate use of the neighborhood's river frontage and that "Allapattah's water-front industrial zoning should be maintained."

LU-1(2) of the Future Land Use section of the Comprehensive Plan requires the City to "[m]aintain a land use pattern that fosters redevelopment and revitalization of blighted areas." The ALJ found the FLUM Amendment was consistent with LU-1(2). This finding, however, is unsupported by the evidence. While soml fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. In analyzing whether a genuine issue of material fact exists, the evidence and reasonable inferences from that evidence must be viewed in the light most favorable to the nonmoving party. Id. at 255.

On the present record and on the claims being asserted by Plaintiff, three possible outcomes could occur. First, as discussed in section III, infra, it might be found that the policy adopted by the City is facially unconstitutional. Second, as discussed in section IV, infra, it might be found that the policy adopted by the City is constitutional but that the policy was unconstitutionally applied by the BPD and Officer Early. Third, as discussed in section V, infra, it might be found that the policy adopted by the City is constitutional and was constitutionally applied. Which of these outcomes happens turns on factual determinations that must be made by the jury.

III.

Plaintiff argues the Protocol is facially unconstitutional under the First Amendment, while Defendants contend it withstands constitutional scrutiny as a reasonable time, place, and manner restriction. In evaluating Plaintiffs' First Amendment claim, the court must first determine whether Plaintiff has engaged in protected speech. Goulart v. Meadows, 345 F.3d 239, 246 (4th Cir. 2003) (citing Cornelius v. NAACP Legal Def. Educ. Fund, Inc., 473 U.S. 788, 797, 105 S. Ct. 3439 (1985)). Next, the court must "identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic." Cornelius, 473 U.S. at 797. Then, the court may determine whether the characteristics of the restriction at issue satisfy the applicable standard. See id.

This case involves speech at the core of First Amendment protection. "Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum." Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 377, 117 S. Ct. 855 (1997). Nevertheless, it is well established "that the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559 (1981) (citations omitted). "[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech," so long as the restrictions (1) are content neutral, (2) serve a significant government interest, (3) "`leave open ample alternative channels for communication of the information,'" and (4) are narrowly tailored to the government's interest. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065 (1984)).

I conclude as a matter of law that the Protocol is a content-neutral restriction, serves a significant government interest, and permits sufficient alternative channels for communication. I further conclude, however, that there is a genuine dispute of fact regarding the tailoring of the Protocol.

A. Content Neutrality

The scrutiny that a court must apply to a restriction on speech depends upon whether it is content neutral, content based, or viewpoint based. A content-neutral time, place, and manner restriction will be upheld if it is "narrowly tailored to serve a significant government interest . . . and leave[s] open ample alternative channels of communication." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S. Ct. 948 (1983). In contrast, a content-based restriction on speech in a public forum is permissible only if the government shows that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Id. Viewpoint-based restrictions are prohibited. Pleasant Grove City v. Summum, ___ U.S. ___, 129 S. Ct. 1125, 1132 (2009).

"[T]he government's purpose" is the "threshold consideration" in determining whether a restriction is content neutral or content based. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763, 114 S. Ct. 2516 (1994). "The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward, 491 U.S. at 791 (citing Clark, 468 U.S. at 295). A court therefore must find the restriction to be content neutral "if it is justified without reference to the content of the violator's message or point of view." Am. Life League, Inc. v. Reno, 47 F.3d 642, 649 (4th Cir. 1995) (emphasis added) (citations omitted).

A regulation does not become content or viewpoint based merely because the government, in promulgating it, was motivated to respond to the conduct of one ideological group. Hill v. Colorado, 530 U.S. 703, 724, 120 S. Ct. 2480 (2000). Nor is it content based because "it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791; see also Am. Life League, 47 F.3d at 651 ("[A] statute is not rendered non-neutral simply because one ideologically defined group is more likely to engage in the proscribed conduct."). In fact, an ordinance that expressly limits speech based on its content may nonetheless be content neutral so long as the ordinance's purpose is not to suppress the targeted content, but rather to "combat the undesirable secondary effects" of the speech. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S. Ct. 925 (1986) (upholding a zoning ordinance applicable only to theaters showing adult films because its purpose was related to the films' secondary effects).

In order for a restriction that applies only to speech containing a certain type of content to be considered content neutral, the targeted secondary effects must be specific to speech with that content. In City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S. Ct. 1505 (1993), the Supreme Court concluded that a ban on the distribution of commercial handbills was content based even though the government asserted content-neutral justifications, safety and esthetics. Id. at 429-30. The Court noted that these justifications would support a ban on the distribution of all handbills, not merely those containing commercial content, so a ban limited to commercial handbills could be supported only by a content-based justification: commercial speech was of low value. Id. Here, in contrast, although the City's justification — pedestrian and traffic safety and convenience — in theory could apply with equal force to all leafleters and protesters, the City has experienced problems in the area around the Arena only during the Circus and as a result of animal welfare demonstrators' conduct. (Barclay Aff. ¶ 32; City's Answers to Interrogs., no. 11.) Thus, even if the factfinder finds that the Protocol applies only to circus demonstrators, I will treat it as content neutral, rather than finding it to be content based, because it is a reaction to a specific problem that occurred in the past. If the Protocol was created to address specific past events and applied to a specific group, however, it would resemble an injunction. As I discuss infra, these similarities to an injunction affect the degree of tailoring required for the Protocol to comply with constitutional limits.

Here, the Protocol is content neutral. Although Defendant Barclay was responding to the prior conduct of animal welfare demonstrators at the time she created the Protocol and she intended the Protocol to affect these demonstrators' conduct, this does not render the law content based. Rather, the focus must be on the government's purpose in promulgating the Protocol, and the evidence on the record demonstrates that the Protocol's purpose was to confront the undesirable secondary effects of the protests — namely, traffic and pedestrian congestion. Defendant Barclay's testimony establishes that she drafted the Protocol in response to the traffic problems that occurred during the 2003 protest and police complaints of pedestrian-flow issues around the Arena. Plaintiff has failed to present any evidence to counter this conclusion. The "Circus Protesters" subject line in emails transmitting the Protocol does not show it is content or viewpoint based. Even if the Protocol applies only to those protesting the Circus, it remains content-neutral rule so long as it was intended to combat only the secondary effects of the protest.

Any contention by Plaintiff that Officer Early's financial relationship with the Circus motivated him to seek the Protocol to suppress the demonstrators' message is pure conjecture. The only evidence of animus held by Defendant Barclay towards animal welfare activists is an email in which she recalls "that stupid truck," referencing the PETA truck from the 2003 protest. (2007 Barclay Email Chain.) Even this, when viewed in context, does not render the Protocol content based. The truck caused severe traffic and safety problems because it prevented buses from stopping at their typical stops, and Defendant Barclay believed that the police held her responsible for these problems. (Barclay Aff. ¶ 14.) Mrs. Barclay, therefore, was reacting to the secondary effects of the protest, specifically traffic congestion, rather than the content of the speech. The only evidence of disagreement with content of the animal welfare demonstrators' speech is the shirt that Officer Early wore during Plaintiff's 2009 arrest, which expressed the officer's appreciation of deer hunting. The fact that a single officer held a view contrary to the demonstrators does not prove that the City was motivated by disagreement with animal welfare ideology in creating the Protocol.

B. Significant Government Interest

It is well established that governments have a significant interest in preserving freedom of movement on public streets and sidewalks. See Heffron, 452 U.S. at 650 ("As a general matter, it is clear that a State's interest in protecting the `safety and convenience' of persons using a public forum is a valid governmental objective."). Indeed, municipal governments have the duty to maintain freedom of movement on public streets. Cox v. Louisiana, 379 U.S. 536, 554-55, 85 S. Ct. 453 (1965); Schneider v. New Jersey, 308 U.S. 147, 160, 60 S. Ct. 146 (1939). A government may, therefore, restrict the time, place, duration, or manner of protests and public assemblies on public thoroughfares in order to fulfill this duty. See Cox, 379 U.S. at 558. Plaintiff's contentions to the contrary are unavailing, and his claims that the specific protests in which he participated did not impair the safety or convenience of pedestrians are more appropriately addressed under the narrow-tailoring element.

In light of this precedent, I conclude the City, in creating the Protocol, acted to further a significant government interest.

C. Alternative Channels of Communication

To be reasonable, a time, place, and manner restriction must permit ample alternative channels of communication. Ward, 491 U.S. at 791. "An ordinance will not fail for lack of adequate alternatives as long as it provides avenues for `the more general dissemination of a message.'" Green v. City of Raleigh, 523 F.3d 293, 305 (4th Cir. 2008) (quoting Frisby v. Schultz, 487 U.S. 474, 482-84, 108 S. Ct. 2495 (1988)). Speakers are not entitled to their ideal means of communication; the Constitution demands "only that individuals retain the `ability to communicate effectively.'" Menotti v. City of Seattle, 409 F.3d 1113, 1138 n. 48 (9th Cir. 2005) (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S. Ct. 2118 (1984)). There is, therefore, no constitutional requirement that speakers be permitted to distribute leaflets provided that they are afforded other avenues to express their message. See McCullen v. Coakley, 571 F.3d 167, 180 (1st Cir. 2009) ("[H]andbilling is not specially protected." (citations omitted)); Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 14 (1st Cir. 2004) ("[A]lthough the opportunity to interact directly with the body of delegates by, say, moving among them and distributing literature, would doubtless have facilitated the demonstrators' ability to reach their intended audience, there is no constitutional requirement that demonstrators be granted that sort of particularized access.").

Here, although the Protocol forecloses the demonstrators' ideal means of communication, it provides ample alternative channels of communication. Plaintiff and other animal welfare activists prefer to move among the pedestrians on the sidewalk to distribute literature. Nevertheless, the parameters established by the Protocol do not bar "the more general dissemination" of their message. Plaintiff can convey his views on the Circus by providing literature to those pedestrians who pass through or near the designated area or by holding signs, chanting, and engaging in other protest activities. Unrestricted leafleting does not gain special constitutional protection simply because it is Plaintiff's preferred means of communication.

D. Narrow Tailoring

There remains for consideration the fourth factor set forth in Ward v. Rock Against Racism: whether the Protocol is narrowly tailored to implement the government's legitimate interest in preventing traffic and pedestrian congestion. For reasons I will next explain, as to this factor, I find that there is a genuine issue of material fact.

In deciding the "narrowly tailored" issue, the Supreme Court has drawn a distinction between ordinances generally imposing time, place, and manner restrictions on protected speech and injunctions whose purpose is to restrict the exercise of the free speech rights of a particular group. Compare Ward, 491 U.S. at 797-800 (holding that, for a generally applicable ordinance, the regulation "need not be the least restrictive or least intrusive means" of serving the government's interest), with Madsen, 512 U.S. at 765 (holding that an injunction must "burden no more speech than necessary to serve a significant government interest"). A more rigorous standard applies in determining the constitutionality of an injunction than a general ordinance. Specifically, as is particularly pertinent in this case, the constitutionality of a general ordinance will be upheld if it addresses not only disruptive conduct that has occurred in the past but also anticipated problems of the same nature. See City of Memphis v. Greene, 451 U.S. 100, 126, 101 S. Ct. 1584 (1981) ("As a matter of constitutional law a city's power to adopt rules that will avoid anticipated traffic safety problems is the same as its power to correct those hazards that have been revealed by actual events."). On the other hand, in order to meet the "narrowly tailored" factor, an injunction must be focused only on past disruptive conduct that might reasonably be anticipated to re-occur. See Madsen, 512 U.S. at 765 ("[Injunctions] can be tailored . . . to afford more precise relief than a statute where a violation of the law has already occurred."). Thus, in this case, if the Protocol is deemed to be the equivalent of a general ordinance, it would be constitutional even though it covers possible pedestrian congestion and the only past conduct which triggered it was the traffic congestion caused by the PETA truck for which a permit had been issued in 2003. On the other hand, if the Protocol is deemed to be the equivalent of an injunction, it is unconstitutional because its purpose of assuring the flow of pedestrian traffic, while valid, simply was not invoked by what had occurred in the past. While the constitutionality of the Protocol is ultimately a legal question, resolution of this question depends upon a finding as to the underlying factual issue: whether or not the Protocol was of general application or specifically targeted to circus and animal welfare protestors.

I recognize, of course, that the Protocol is not a court issued injunction but a policy adopted by the City Law Department. That fact, however, is not dispositive. Although the Fourth Circuit has not addressed the issue of Madsen's applicability to restrictions other than injunctions, the Second and Third Circuits have extended the Madsen standard to other non-statutory restrictions because these restrictions possess characteristics that the Supreme Court identified as warranting heightened scrutiny for injunctions. McTernan v. City of York, 564 F.3d 636, 654-55 (3d Cir. 2009) (applying the Madsen standard to "a police directive, issued by officers in the field," because it "pose[d] risks similar to those presented by an injunction, warranting heightened scrutiny"); Huminski v. Corsones, 386 F.3d 116, 155 (2d Cir. 2004) (applying heightened scrutiny under Madsen to a "Notice Against Trespass," issued by court security personnel to a protester); cf. Tompkins v. Cyr, 995 F. Supp. 664, 678 (N.D. Tex. 1998) (considering underlying policy concerns and determining that heightened scrutiny should not apply to common law torts because they resembled generally applicable statutes more than injunctions).

In Madsen, the Supreme Court identified several characteristics of injunctions that give rise to the need for heightened scrutiny. "First, injunctions do not emanate from deliberative, democratic decisionmaking processes," but rather "`are remedies imposed for violations (or threatened violations) of a legislative or judicial decree.'" McTernan, 564 F.3d at 654 (quoting Madsen, 512 U.S. at 764). Second, because they are crafted in response to prior violations, injunctions "can be tailored . . . to afford more precise relief than a statute." Madsen, 512 U.S. at 765. Finally, because injunctions target specific groups, they are less likely to be subject to public scrutiny and "carry greater risks of censorship and discriminatory application than do general ordinances." Id. at 764. As the Court remarked in Madsen, "`there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.'" Id. (quoting Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 112-13, 69 S. Ct. 463 (1949)).

Injunctions are not promulgated through democratic processes, but this is not to say that courts are not deliberative when determining whether an injunction should issue. In fact, the procedures imposed by the judicial system may result in greater consideration of an injunction's impact on First Amendment rights than may occur through legislative processes. Instead, the primary source of concern is that an injunction is targeted at a specific group, so it should be "`no more burdensome . . . than necessary.'" Madsen, 512 U.S. at 765 (quoting Califano v. Yamasaki, 442 U.S. 682, 702, 99 S. Ct. 2545 (1979)). In contrast, a reasonable jury may find the Protocol is targeted at animal welfare demonstrators, and it was produced without the benefit of formal, deliberative procedures. It may therefore pose an even greater risk to the First Amendment rights of minority groups than an injunction.

Here, the record demonstrates that the Protocol poses many of the risks presented by an injunction. The Protocol was not created through a formal legislative or regulatory decisionmaking process. In fact, the City Defendants, in their motions to dismiss, seized on the informality of the process leading to the promulgation of the Protocol to argue that it should not be treated as a municipal policy under 42 U.S.C. § 1983. ( See City Defs.' Mot. Dismiss; BPD Defs.' Mot. Dismiss.) The Protocol appears to have been crafted instead as a response to the disruption that occurred during the 2003 protest. Because it was created to respond to a specific problem — a truck that blocked bus lanes, preventing the uninterrupted flow of traffic — the creation of a more precise policy, addressing only demonstrators' vehicles, would be possible. Additionally, as with the police directive at issue in McTernan, the Protocol "present[s] potentially greater opportunities for arbitrary enforcement than injunctions" because it was not a published rule that members of the public could reference in order to conform their behavior to the law. See McTernan, 564 U.S. at 655 ("Whereas injunctions are written, police directives are oral. Oral directives often lack the precision and specificity required of federal injunctions . . . [and] are less amenable to judicial, executive, and public oversight."). On the video showing Plaintiff's arrest, demonstrators are seen repeatedly expressing confusion about the source of the restrictions and the interaction with their First Amendment rights. The police could not dispel this confusion because they were unable to direct demonstrators to a specific regulation or ordinance and could only instruct them to call the Law Department. (2008 Arrest Video; 2009 Arrest Video.) Finally, there is a factual dispute as to whether the Protocol was targeted against circus or animal welfare demonstrators. Although Defendant Barclay claimed she drafted the Protocol to apply generally, the email described it as a policy for "Circus Protesters." Past demonstrators stated they witnessed non-circus demonstrators against whom the BPD did not apply the Protocol during the Circus. From these facts, a jury may reasonably conclude the Protocol was written to apply only to circus and animal welfare demonstrators.

All of this said, and imperfect though the Protocol may have been, Plaintiff's facial challenge fails if the Protocol is deemed to be the equivalent of a generally applicable ordinance rather than an injunction. As previously stated, that question turns upon the determination, to be made by the jury, whether the Protocol was targeted only against circus and animal welfare demonstrators.

IV.

In addition to bringing a facial challenge, Plaintiff contends that the Protocol is unconstitutional as applied. The same legal standard analysis applies to facial and as-applied challenges to time, place and manner restrictions. See Independence News v. City of Charlotte, 568 F.3d 148, 155 n. 3 (4th Cir. 2009) (applying the same time, place, or manner analysis to a content-neutral zoning ordinance "regardless of whether [the] challenge is styled as facial or as-applied").

The Defendants interpret Plaintiff's as-applied challenge as a challenge to the government's interest in pedestrian safety and convenience because Ross claims he was not personally impeding pedestrians at the time of his arrest. The Defendants therefore assert that the government need not establish that the particular plaintiff threatened public safety or previously engaged in violence in order to implement a policy to protect public safety. This is undoubtedly correct. See Greene, 451 U.S. at 126 ("As a matter of constitutional law a city's power to adopt rules that will avoid anticipated traffic safety problems is the same as its power to correct those hazards that have been revealed by actual events."). "The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in the particular case will not threaten important government interests." United States v. Albertini, 472 U.S. 675, 688, 105 S. Ct. 2897 (1985). Therefore, Plaintiff cannot successfully sustain an as-applied challenge merely because he personally was not impeding pedestrians at the time he was arrested.

A facially constitutional time, place, or manner restriction will be unconstitutional as applied where the restriction is content neutral on its face but has been applied in a viewpoint- or content-specific manner. Cf. Menotti, 409 F.3d at 1146-48 (refusing to grant summary judgment for the defendant-city on the plaintiff's as-applied challenge because the evidence "create[d] a genuine issue of material fact as to whether it was the policy of the City to apply Order No. 3 in a manner that excluded only anti-WTO protestors"); Benham v. City of Charlotte, 682 F. Supp. 2d 549, 557 (W.D.N.C. 2010) (considering an as-applied challenge where plaintiffs "allege[d] a pattern of discriminatory enforcement" of an ordinance governing public assembly permits that was content neutral on its face). Here, a reasonable jury could find that the Protocol was written to apply generally, but that the BPD or Officer Early adopted a practice of enforcing the Protocol only against circus or animal welfare demonstrators. Officer Early stated in his deposition that he knew that the Protocol applied to Plaintiff because of the content of his speech — specifically, because Ross's speech opposed the Circus's treatment of animals. According to Plaintiff, Officer Early was wearing a t-shirt expressing his love of deer hunting during Plaintiff's second arrest. While this does not indisputably establish that Officer Early took action against the demonstrators because of their differing views on animal welfare, his choice to wear such a shirt when he knew he would encounter animal welfare activists could be found by a jury to reflect animus towards their beliefs.

Officer Early contends that he is entitled to qualified immunity as to the federal constitutional claims asserted against him. Qualified immunity shields government officials performing discretionary functions from liability so long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982). It protects officials who act "reasonably but mistakenly," Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034 (1987), regardless of whether they have made a mistake of law or mistake of fact, Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808, 815 (2009) (citations omitted). Because qualified immunity is an affirmative defense, the burden rests upon Officer Early to establish that it would not have been clear to a reasonable officer in his position that his conduct was unlawful. See Franklin v. Clark, 454 F. Supp. 2d 356, 361 (D. Md. 2006).
Here, it is well established that a content-neutral policy cannot be discriminatorily enforced. See, e.g., Cox, 379 U.S. at 558 ("[A]ppropriate, limited discretion . . . concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is exercised with uniformity of method of treatment upon the facts of each application, free from . . . unfair discrimination. . . .") United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972) (reversing convictions for violations of government regulations occurring during demonstrations on government property because the regulations had been selectively applied); Nieto v. Flatau, 715 F. Supp. 2d 650, 656-57 (E.D.N.C. 2010) (holding that a regulation was unconstitutionally applied because, "although viewpoint neutral on its face, [it] has not been applied in a viewpoint-neutral manner"). Officer Early may nevertheless be entitled to immunity if he reasonably but mistakenly believed that the Protocol applied only to circus or animal welfare demonstrators, and he enforced it in conformity with this belief. The terms of the Protocol do not specify its scope, and the email subject "Circus Protesters" may have led him to conclude it applied only to those protesting the Circus or its treatment of animals. I will not dismiss the federal claims against Officer Early on the basis of qualified immunity, however, because he has not presented sufficient evidence regarding the information conveyed to him regarding the Protocol to show that a belief that it was targeted at circus or animal rights demonstrators was reasonable. In light of the evidence suggesting animus, a reasonable jury could conclude that Officer Early was aware the Protocol was content-neutral and generally applicable, but enforced it only against circus and animal welfare demonstrators.

Thus, I will deny summary judgment as to the as-applied challenge so that a factfinder may determine whether the Protocol, even if constitutional on its face, was discriminatorily enforced.

V.

It follows from what I have said that Plaintiff's summary judgment motion must also be denied. It is for the jury to determine whether the Protocol was facially unconstitutional because it was targeted solely against circus and animal welfare protestors or, if not, whether it was discriminatorily enforced. If the jury's answers to both of these questions are "no," all of the Defendants are entitled to judgment in their favor.

ORDER

For the reasons stated in the accompanying Memorandum, it is, this 8th day of December 2010

ORDERED that

1. Defendant's Joint Motion for Summary Judgment (no. 36) is denied;

2. Plaintiff's Counter-motion for Summary Judgment (no. 38-1) is denied;

3. Defendant Wayne Early's Motion for Summary Judgment (no. 37) is denied without prejudice.