Opinion
Criminal Docket No.: CR18-993
10-26-2018
Re: City of Norfolk v. Denis Ray Salyers
Zachary Simmons, Esq. Office of the City Attorney 810 Union Street, Suite 900 Norfolk, Virginia 23510 Mr. Denis R. Salyers 1123 Tallwood Street Norfolk, Virginia 23519
Zachary Simmons, Esq.
Office of the City Attorney
810 Union Street, Suite 900
Norfolk, Virginia 23510 Mr. Denis R. Salyers
1123 Tallwood Street
Norfolk, Virginia 23519 Dear Sirs:
This misdemeanor appeal came before the Court for trial on July 10, 2018. The defendant, Denis Ray Salyers, appealed his conviction in the Norfolk General District Court for violation of Norfolk City Ordinance § 29-77 "Soliciting in Street." The uncontested facts adduced at trial show that the defendant, Denis Ray Salyers, was observed by Norfolk police officer H. Martin holding a sign with the phrase "Homeless Anything Helps" while walking in the median at the intersection of Tidewater Drive and E. Little Creek Road in the City of Norfolk. The officer testified that Mr. Salyers was displaying the sign to vehicles stopped for the traffic control at that intersection. During the trial, Mr. Salyers having waived counsel, challenged this prosecution as a violation of his First Amendment right to free speech. The Court deferred ruling on the defendant's constitutional challenge and after hearing the evidence withheld the finding pending resolution of the constitutional issue. The Court instructed the City of Norfolk to submit a brief addressing the defendant's claim regarding the constitutionality of City Code § 29-77. However, the City declined to do so, electing instead to seek to nolle prose the charges on September 18, 2018. Because the defendant was not present, the City's motion to nolle prose was taken under advisement and the matter was continued to October 30, 2018. Subsequently by letter of October 25, 2018, the City Attorney's Office acknowledged "concerns regarding certain language in § 29-77" and indicated an intention to seek amendment of the code section by City Council. The city attorney further advises the Court of its intention to move to dismiss this matter on October 30, 2018.
Virginia Code Ann. § 19.2-265.3 states that "nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause thereof shown." Id. Good cause can be based upon the unexpected absence of a witness, the Commonwealth's lack of indispensable documents to prosecute the defendant on the scheduled trial date or a mere oversight of the Commonwealth's not amounting to bad faith or prosecutorial misconduct. Rogers v. Commonwealth, No. 1086-97-1 (Ct. of Appeals, April 14, 1998); Harris v. Commonwealth, No. 2087-97-4 (Ct. of Appeals, Oct. 20, 1998); Commonwealth v. Van Luu, 71 Va. Cir. 43, 2009 Va. Cir. LEXIS 69. However, "nolle prosequi is no remedy for the Commonwealth's failure to properly prepare its case or to timely respond to discovery." Battle v. Commonwealth, 12 Va. App. 624, 631 n.2 (1991).
Although nolle prosequi can be entered at any stage of the proceedings, it is subject to the caveat that jeopardy will attach if nolle prosequi is entered after the court begins to hear evidence. See Kenyon v. Commonwealth, 37 Va. App. 668, 674 (2002) (citing Courtney v. Commonwealth, 23 Va. App. 561, 567 (1996)). Therefore, nolle prosequi in such cases would "implicate a bar to subsequent prosecution." Duggins v. Commonwealth, 59 Va. App. 785, 792 (2012). Consequently, because evidence has been heard in this matter, whether the City's motion to nolle prose or dismiss is granted, the consequence will be the same for the defendant. He can no longer be subject to prosecution for this alleged offense.
Finding that the City of Norfolk has failed to articulate good cause, the Court denies the motion to nolle prose. Nevertheless, because the constitutional claim raised by Mr. Salyers is properly before the Court, it is necessary that it be addressed, regardless of the City's current desire to dismiss the matter.
Addressing the remaining issue of whether Sec. 29-77 of Norfolk's Code of Ordinance is unconstitutional for violating the First Amendment as applied to the states through the Fourteenth Amendment, the Court must conclude that it is unconstitutional.
Sec. 29-77 is a content-based restriction of speech because, by omission, it treats certain speech more favorably than speech dealing with the solicitation of employment, business, sales of goods or services, or charitable contributions. Sec. 29-77 also curtails speech based on who is engaging in such speech. Furthermore, the City of Norfolk does not have a compelling interest to achieve by restricting such speech, but even if it did, Sec. 29-77 is not narrowly tailored to achieving such -hypothetical- compelling interest.
"Cases long have protected speech even though it is in the form of . . . a solicitation." Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 633 (1980) (quoting Bates v. State Bar of Ariz., 433 U.S. 350, 363 (1977)). "Consistent with the traditionally open character of public streets and sidewalks, we have held that the government's ability to restrict speech in such locations is very limited." McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014); see also Goulart v. Meadows, 345 F.3d 239, 248 (4th Cir. 2003). To determine if a solicitation statute is compliant with the First Amendment, courts consider whether the statute in question is a content-neutral restriction on speech subject to intermediate scrutiny or a content-based restriction that must overcome strict scrutiny. Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir. 2015).
1. Whether Sec. 29-77 is content neutral on its face.
Section 29-77 is a content-based restriction of speech because, by omission, it treats certain speech more favorably than speech dealing with the solicitation of employment, business, sales of goods or services, or charitable contributions, and because it curtails speech based on who is engaging in such speech.
The first step in this content-neutrality analysis is "to determine whether the law is content neutral on its face." Reed v. Town of Gilbert, 135 St. Ct. 2218, 2228 (2015). In this first step, the City's purpose in enacting the law in question is irrelevant. Cent. Radio Co. v. City of Norfolk, 811 F.3d 625, 632 (4th Cir. 2016). If content neutral, courts must determine whether the law should nonetheless be categorized as content based because "it cannot be justified without reference to the content of the regulated speech", or because it was adopted by the government due to "disagreement with the message [the speech] conveys." Reed, 135 S. Ct. at 2227 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
Government regulation of speech is not considered content neutral, and therefore will be considered content based, if it "applies to particular speech because of the topic discussed or the idea or message expressed." Id. at 2227. Thus, a law that draws distinctions based on speech's "subject matter ... function or purpose" is content based. Id. at 2227-28 (holding that the regulation of speech was content based because the code in question treated certain type of signs, like political ones, more favorably than signs indicating the time and place of events); Cent. Radio Co., 811 F.3d at 633 (holding that the city's regulation was a content-based restriction of speech because it applied to private and secular flags, but exempted governmental or religious flags); Cahaly, 796 F.3d at 405 (holding that the statute at issue was content based because it applied to calls with a consumer or political message, but did not apply to calls made for any other purpose).
Sec. 29-77 is clearly a content-based restriction of speech. Sec. 29-77 (a) states that "it is unlawful for any person to be or go upon any street (...) for the purpose of soliciting, or attempting to solicit employment, business, sales of goods or services, or charitable contribution of any kind (...)." Like in Cahaly where the statute only prohibited automated calls made with the purpose of conveying a consumer or political message, here Sec. 29-77(a) only prohibits people from being in the street for the purpose of soliciting employment, business, sales of goods or services, or charitable contributions. And like in Cahaly, where the statute did not prohibit calls made for any other purpose, Sec. 29-77(a) does not prohibit soliciting for any other purpose than the ones already mentioned in that section. Therefore, as an example, under a literal reading of Sec. 29-77(a) a person could go to any street with the purpose of soliciting the vote for a political candidate without violating the city's ordinance. Thus, Sec. 29-77(a) is by omission, treating certain speech, like political speech, more favorably than speech dealing with the solicitation of employment, business, sales of goods or services, or charitable contributions. This disparity in treatment based merely on the reasons why a person is soliciting makes the section a content-based restriction of speech that must withstand strict scrutiny to be constitutionally sound.
Similarly, Sec. 29-77(a) curtails speech based on "who" is engaging in such speech, effectively favoring the First Amendment rights of one speaker over those of another. Sec. 29-77(b) only permits entities, such as corporations or religious establishments, to apply for a permit to engage in speech that is otherwise prohibited to everyone else. Consequently, no individual, including the defendant, could obtain a permit if he/she desired to do so. Furthermore, Sec. 29-77(b)(11) requires such entity to have "a policy of insurance covering general liability and property damage in the amount of at least $500,000 per occurrence" in order to being issued a permit. However, it does not provide any type of indigency waiver. These exemptions in regulating the speech in question seem to point to the City's hostility or favoritism towards one group - and therefore to the underlying message expressed by such group - or, even more worrisome, to an improper censorial purpose of the City. Such hostility or favoritism to one group's message over the other makes Sec. 29-77 a content-based statute that must overcome strict scrutiny.
Even if applying for a permit were an available course of action, it is clear that the City of Norfolk improperly puts emphasis on the purpose (content) of the solicitation by requiring permit applications to contain "a brief description of the nature of the solicitations" to determine whether the permit may be issued. Sec. 29-77 (b)(3).
If that were the case, it would be fatal for the City. However, without further proof of such censorial intent, it is not possible to automatically strike Sec. 29-77 as unconstitutional without subjecting it to the strict scrutiny test. Minneapolis Star and Tribune Co. v. Minnesota Com'r or Revenue, 460 U.S. 575, 580 (1983).
2. Whether Sec. 29-77 survives strict scrutiny
The City of Norfolk does not have a compelling interest, but even if it did, Sec. 29-77(a) is not narrowly tailored to achieving such - hypothetical - interest.
Under a strict scrutiny standard, the City must prove that "the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." Reed, 135 S. Ct. at 2231 (quoting Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011)).
In analogous cases, the government's alleged compelling interests were the promotion of the city's physical appearance and aesthetics, and the reduction of distractions and hazards to pedestrians and auto traffic. See e.g., Reed, 135 S. Ct., at 2231-32; Cent Radio Co., 811 F.3d at 633; Reynolds v. Middleton, 779 F.3d 222, 229 (4th Cir. 2015). However, those interests have never been held to be compelling. Cent Radio Co., 811 F.3d at 633.
This case was decided before the Supreme Court's decision in Reed and thus the Court applies an intermediate scrutiny test, treating the alleged interests as "important governmental interests" rather than "compelling governmental interests." --------
Furthermore, if the City has a less restrictive option to serve the City's compelling interest, the City must use that option. United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813 (2000). Hence, the restriction in speech cannot be overinclusive by unnecessarily restricting protected speech, nor should it be underinclusive by failing to also prohibit speech that would ultimately harm the government's alleged compelling interest. Republican Party of Minn. v. White, 536 U.S. 765, 775 (2002); Reed, 135 S. Ct at 2232.
The City of Norfolk does not have any compelling interest to restrict speech the way Sec. 29-77 does. Using analogous cases to anticipate the City's compelling interests, the City could have argued that Sec. 29-77 tries to preserve the city's aesthetic appeal and traffic safety. This is also supported by Sec. 29-77(e)(3) (stating that the permit request could be denied if the applicant wants to solicit at a place that may be too disruptive or dangerous for traffic flow), and Sec. 29-77(f)(9) (establishing restrictions based on safety concerns for permit-holders who are soliciting vehicles in the streets). However, attaining such aesthetic appeal and traffic safety, albeit a "substantial government goal," is not a compelling governmental interest. Cent. Radio Co., 811 F.3d at 633 (quoting Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08 (1981) (plurality opinion)).
Even if, arguendo, such interests were compelling, Sec. 29-77 is not narrowly tailored to achieving those interests. First, the ordinance is overinclusive. Sec. 29-77(a) completely bans soliciting in all areas of the city, specifically in "any street, highway or roadway, or any sidewalk, curb, shoulder or median thereof." This city-wide sweep burdens more speech than necessary: it is a citywide statute aimed to solve a problem that may only surface in specific areas of Norfolk. Thus, like in Reynolds where the ordinance was overinclusive because it prohibited solicitation even where soliciting would not pose any danger, Sec. 29-77(a) is also overinclusive.
Furthermore, Sec. 29-77(a) is underinclusive. It only prohibits certain types of solicitation, making other types acceptable. However, it is highly unlikely that the solicitation of employment (prohibited by the ordinance) is any more distracting for vehicles -or any more of an eye sore if signs were used- than the solicitation of votes for a political candidate in an upcoming election which is allowed by omission by the ordinance. If traffic safety is the end-goal, this difference in treatment does not make sense, and would not exist. Thus, like in Reed where the ordinance was underinclusive because it limited the use of temporary directional signs to achieve traffic safety but did not limit the use of others, Sec. 29-77(a) is also "hopelessly underinclusive." Reed, 135 S. Ct. at 2231.
Consequently, I find that Sec. 29-77 of the Norfolk City Code is an unconstitutional violation of the defendant's First Amendment right because it is content-based restriction on speech, and the City has failed to demonstrate any compelling interest to further such restriction by individuals similarly situated like Mr. Salyers. The charged violation of City Ordinance 29-77 will be dismissed.
Sincerely,
/s/
Junius P. Fulton, III
Judge