Wake Forest Law Review

Weekly Roundup 10/9-10/13
By: Evan Reid & Ashley Collette

United States v. Salmons
In this criminal case, the defendant appealed the district court’s decision, which found his prior crime of aggravated robbery was a predicate crime under the force clause of U.S.S.G.§ 4B1.2, thus requiring a longer minimum sentence. The Fourth Circuit affirmed the judgment of the district court, holding that aggravated robbery was categorically violent.

Fawzy v. Wauquiez Boats SNC
In this admiralty and maritime case, the plaintiff appealed the district court’s decision dismissing the case for lack of jurisdiction. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction, finding that the district court’s decision was not final because the plaintiff had filed an amended complaint prior to the court’s dismissal of the case.

Lucero v. Early
In this First Amendment case, the plaintiff appealed the district court’s decision dismissing his claim challenging the constitutionality of a protocol that he was arrested for violating. The Fourth Circuit vacated the judgment of the district court and remanded the case, finding the district court did not consider all relevant facts and law in determining whether the protocol was content neutral.

Siena Corporation v. Mayor and City Council of Rockville, Maryland
In this civil case, the plaintiff appealed the district court’s dismissal of its claim that the City Council violated its constitutional rights when it passed a zoning amendment prohibiting the construction of a self-storage facility based on its proximity to a school. The Fourth Circuit affirmed the dismissal, holding that the plaintiff did not have a constitutionally-protected property right.

By: Kristina Wilson

On Monday, March 20, 2017, the Fourth Circuit issued a published opinion in the civil case Grutzmacher v. Howard County. The Fourth Circuit affirmed the District Court for the District of Maryland’s grant of summary judgment in favor of the defendant, holding that the defendant’s termination of plaintiffs did not violate the plaintiffs’ First Amendment Free Speech rights. The plaintiff raises two arguments on appeal.

Facts and Procedural History

Prior to initiating this action, plaintiffs worked for the defendant, the Howard County, Maryland Department of Fire and Rescue Services. In 2011, the defendant started drafting a Social Media Policy (“the Policy”) in response to a volunteer firefighter’s inflammatory and racially discriminatory social media posts that attracted negative media attention. The Policy prevented employees from posting any statements that may be perceived as discriminatory, harassing, or defamatory or that would impugn the defendant’s credibility. Additionally, in 2012, the defendant promulgated a Code of Conduct (“the Code”) that prohibited disrespectful conduct toward authority figures or the chain of command established by the defendant. Finally, the Code required employees to conduct themselves in a manner that reflected favorably on the defendant.

On January 20, 2013, one of the plaintiffs advocated killing “liberals” on his Facebook page while on duty for defendant. The defendant asked the plaintiff to review the Policy and remove any postings that did not conform. Although the plaintiff maintained that he was in compliance with the Policy, he removed the January 20th posting. On January 23, 2013, the plaintiff posted a series of statements that accused the defendant of stifling his First Amendment rights. On February 17, 2013, the plaintiff also “liked” a Facebook post by a coworker was captioned “For you, chief” and displayed a photo of an obscene gesture. Shortly thereafter, the defendant served the plaintiff with charges of dismissal and afforded the plaintiff an opportunity for a preliminary hearing on March 8, 2013. On March 14, 2013, the defendant terminated the plaintiff.

At the district court, the plaintiff argued that the defendant fired him in retaliation for his use of his First Amendment Free Speech rights and that the Policy and Code were facially unconstitutional for restricting employees’ Free Speech. The district court granted the defendant’s motion for summary judgment regarding the retaliation claims, holding that the plaintiff’s January 20th posts and “likes” were capable of disrupting the defendant’s ability to perform its duties and thus did not constitute protected speech. Similarly, the January 23rd post and February 17th “like” were not protected speech because they did not implicate a matter of public concern. In June of 2015, the defendant revised its Policy and Code to eliminate all the challenged provisions. As a result, the district court dismissed the plaintiff’s facial challenge as moot.

The Plaintiff’s Free Speech Rights Did Not Outweigh the Defendant’s Interest

In evaluating the plaintiff’s First Amendment retaliation claim, the Fourth Circuit applied the Mcvey v. Stacy three-prong test. 157 F.3d 271 (4th Cir. 1998). Under Mcvey, a plaintiff must show the following three conditions: i) that he was a public employee speaking on a matter of public concern, ii) that his interest in speaking about a matter of public concern outweighed the government’s interest in providing effective and efficient services to the public, and iii) that such speech was a “substantial factor” in the plaintiff’s termination. Id. at 277–78.

The first prong is satisfied when a plaintiff demonstrates that his speech involved an issue of social, political, or other interest to a community. Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). To determine whether the issue was social, political, or of interest to a community, courts examine the speech’s content, context, and form in view of the entire record. Id. The Fourth Circuit concluded that at least some of the content of plaintiff’s posts and “likes” were matters of public concern because the public has an interest in the opinions of public employees. Although not all of the postings were of public concern, the Fourth Circuit advocated examining the entirety of the speech in context and therefore proceeded to the second prong of the Mcvey analysis.

The Mcvey Factors Weighed More Heavily in Favor of the Defendant

The Fourth Circuit next balanced the plaintiff’s interest in speaking about matters of public concern with the government’s interest in providing efficient and effective public services. The Fourth Circuit used the Mcvey multifactor test to weigh the following considerations: whether a public employee’s speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee’s duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed. McVey, 157 F.3d at 278.

The Fourth Circuit held that all of the factors weighed in favor of the defendant. The first factor was satisfied because plaintiff was a chief battalion, a leadership position, and allowing plaintiff to violate the Policy and Code without repercussions would encourage others to engage in similar violations. The second and third factors weighed in the defendant’s favor because several minority firefighters issued complaints and refused to work with the plaintiff after the posts. Similarly, the fourth factor weighed in the government’s favor because of the plaintiff’s responsibilities as a leader. The plaintiff’s leadership duties depended on his subordinates taking him seriously and looking to him as an example. By violating the policies he was supposed to uphold, the plaintiff failed to act as a leader and carry out his duties as chief battalion. Finally, plaintiff’s actions also “undermined community trust” by advocating violence against certain groups of people. Community trust and preventing violence are central to the defendant’s mission because the defendant’s function is to protect the community. Therefore, although plaintiff’s speech did involve some matters of public concern, the matters were not of sufficient gravity to outweigh all nine factors of the Mcvey multifactor test. Thus, the government’s interest in effectively providing public services outweighed the plaintiff’s interest in speech about public concerns.

The District Court’s Dismissal of the Facial Challenge on Mootness Grounds Was Proper

While defendant repealed all the challenged sections of the Policy and Code, a party’s voluntary repeal of provisions can only moot an action if the wrongful behavior can be reasonably expected not to recur. The Fourth Circuit affirmed the district court’s dismissal of the facial challenge for mootness because the current Fire Chief issued a sworn affidavit asserting that the defendant will not revert to the former Policy or Code. Additionally, the defendant’s counsel at oral argument declared that the defendant has no hint of an intent to return to the former guidelines. The Fourth Circuit held that these formal declarations were sufficient to meet the defendant’s mootness burden.


The Fourth Circuit affirmed both the district court’s grant of summary judgment and its grant of a motion to dismiss on mootness grounds.


By Mike Stephens

On Thursday, February 23, 2017, the Fourth Circuit issued a published opinion in Heyer v. U.S. Bureau of Prisons. Appellant, Thomas Heyer, brought several claims against the United States Bureau of Prisons (BOP) for failing to accommodate his deafness. After reviewing the district court’s grant of summary judgment in favor of BOP, the Fourth Circuit vacated and remanded the order.

Facts and Procedural History

After Heyer’s initial sentence expired, he remained in civil custody after being deemed “sexually dangerous to others.” He was born deaf and his native language is American Sign Language (ASL) . Given the dramatic differences between ASL and English, Heyer is unable to communicate effectively in English. Since his arrival at the prison, Heyer has repeatedly requested ASL interpreters. His inability to communicate with others has created several problems. Heyer is unable to communicate with the mental health officials responsible for determining the duration of his stay in prison. Heyer has suffered several strokes at the prison and has not been provided a way to communicate with medical personnel. He has also does not attend religious services and is unable to access goods sold because there are no translators. Additionally, Heyer has repeatedly been late or missed scheduled activities because he cannot hear announcements and does not have a vibrating watch or bed.

In 2011, Heyer filed suit against BOP asserting multiple violations of his First and Fifth Amendment rights. His Fifth Amendment claims were based on BOP’s failure to provide translators that would allow him to communicate with the medical and mental health professionals. Furthermore, the complaint alleged Heyer’s First Amendment rights had been violated by BOP’s refusal to provide a videophone and its failure to have translators present at the religious services. The district court granted summary judgment in favor of BOP.

Heyer’s Fifth Amendment Claims

Heyer alleges that BOP’s repeated failure to accommodate his deafness violates his Fifth Amendment rights because it rises to the level of “deliberate indifference.” While this standard is most often used in claims arising under the Eighth Amendment, the Fourth Circuit applied it to Heyer’s Fifth Amendment claims. The standard has two components: the plaintiff must show that he has serious medical needs, an objective standard, and that the defendant acted with deliberate indifference to those needs, a subjective standard. Heyer did not claim his deafness constituted a “serious medical need.” Rather, Heyer’s complaint alleged that BOP’s failure to provide interpreters for his interaction with medical professionals has resulted in inadequate treatment for his medical needs. BOP argued that because Heyer had suffered any actual injury, the standard had not been violated.

The Fourth Circuit agreed and held that Heyer had presented enough evidence to satisfy the deliberate indifference standard. The Court rejected the BOP’s argument, holding that BOP’s actions had exposed Heyer to a substantial risk of serious harm. The Fourth Circuit reasoned that Heyer’s continued seizures, coupled with his inability to communicate with the medical staff, was sufficient to satisfy the object prong.

The Fourth Circuit held that Heyer satisfied the subjective prong as well. BOP argued that Heyer presented no evidence showing BOP knew that the failure to provide translators created a serious risk to his health. Additionally, BOP argued that providing Heyer with assistance from other inmates constituted constitutionally adequate treatment. Again, the Fourth Circuit rejected BOP’s argument. Given BOP’s awareness of Heyer’s deafness, the Court reasoned that BOP was well aware that the failure to provide translators would create for ineffective medical treatment. This awareness, the Court reasoned, was sufficient for a factfinder to conclude the BOP was deliberately indifferent.

First Amendment Claims

Heyer’s alleged that the refusal to provide a videophone violated his First Amendment right to communicate with others outside of the prison. BOP countered that the refusal was merely an unwillingness to provide Heyer with his preferred method of communication. As such, BOP argued that it did not “impinge” on Heyer’s constitutional rights because Heyer could use the TTY devices at the prison.

The Fourth Circuit rejected BOP’s argument. TTY devices require the users to be proficient in English. Given that Heyer could not communicate in English, the Court reasoned that requiring Heyer to use TTY devices to communicate impinged on his First Amendment rights. The Court then proceeded to determine whether requiring Heyer to use the TTY devices was reasonably related to the penological interests of the prison. The Court applied the four factor test as required by Turner v. Safley. Ultimately, the Court found that the factors created issues of fact to be decided at trial. First, there was a factual dispute as to whether the TTY devices provided Heyer an effective means of communication. Second, a question of fact arose as to whether BOP would have to install new IT infrastructure to maintain prison safety. Lastly, the Court found a factual dispute as to whether there were alternative communicative devices available for use by Heyer. Ultimately, given the disputed facts, the Fourth Circuit found the district court erred in granting BOP’s motion for summary judgment. The Fourth Circuit also found a dispute of fact existed as to whether BOP had unreasonably restricted Heyer’s access to the TTY devices.

Lastly, Heyer alleged that the refusal to provide interpreters at the religious services violated his First Amendment rights. The district court dismissed these claims, finding that they were moot given BOP had provided interpreters to Heyer for other occasions. The BOP argued that a 2014 affidavit from the prison chaplain showed that BOP would provide an interpreter if necessary.

The Fourth Circuit also rejected this argument. The Court found that the affidavit was merely a “mid-litigation change of course” given the BOP had failed to provide an interpreter to Heyer for a religious service. The Court reasoned that an assurance to provide an interpreter in the future did not make Heyer’s claim moot.


The Fourth Circuit vacated the district court’s grant of summary judgment on Heyer’s First and Fifth Amendment claims. The case was remanded to the district court for further proceedings.

By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity


The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

By Elizabeth DeFrance

On March 10, 2016 the Fourth Circuit Court of Appeals issued a published opinion in the civil case, American Civil Liberties Union of North Carolina v. Tennyson. The ACLU of North Carolina and several vehicle owners filed suit against Nicholas J. Tennyson, in his official capacity as Secretary of the North Carolina Department of transportation; and Kelly J. Thomas, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles alleging that North Carolina’s specialty license plate program violated the First and Fourteenth Amendments. The State offers a “Choose Life” license plate, but has repeatedly rejected requests for a pro-choice license plate option.

Earlier Opinion Vacated and Remanded Based on Walker Holding 

In the Fourth Circuit’s previous opinion in this case, the Court held that North Carolina’s specialty license plate program violated the First Amendment. In its appeal of the district court’s decision, the State argued that the message conveyed by the specialty license plates constituted government speech, and as such, the State was permitted to discriminate based on viewpoint. The Court rejected the State’s argument, reasoning that specialty license plates implicated private speech rights, and that the State’s offering a “Choose Life” plate without also providing a pro-choice option was viewpoint discrimination in violation of the First Amendment.

The Supreme Court granted certiorari and vacated the Fourth Circuit’s decision. The case was remanded for reconsideration in light of the Supreme Court’s decision in Walker v. Texas Division of the Sons of Confederate Veterans.

Specialty License Plates are a form of Government Speech

In Walker, the Supreme Court held that specialty license plate designs constitute government speech, and thus States are permitted to discriminate based on viewpoint within these programs.

North Carolina’s Specialty Plate Program was Indistinguishable from that in Walker

The Fourth Circuit reasoned that North Carolina’s specialty license plate program was “substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case.”

North Carolina is Free to Reject Messages it Disagrees With

The Court held that North Carolina’s specialty license plates amount to government speech, and as such, the State is free to reject any proposed design whose message it disagrees with. Accordingly, the Court reversed the district court’s decision in favor of the plaintiffs, and remanded with instructions to enter judgment for the State.

Circuit Judge Wynn issued a dissenting opinion in which he determined that Walker’s holding did not require the Court to conclude that North Carolina’s specialty plates constituted purely government speech. He reasoned that the specialty plates constituted “mixed” speech with elements of both government and private speech. Because private speech rights were implicated, the State’s refusal to offer a pro-choice plate in addition to its “Choose Life” plate constituted viewpoint discrimination in violation of the First Amendment.

By Sarah Walton

On January 29, 2016, the Fourth Circuit issued a published opinion in the civil case of Central Radio Company Inc v. City of Norfolk. The Fourth Circuit dismissed the appeal in part, affirmed in part, reversed in part, and remanded the case to the district court for a determination regarding damages.

The Origins of the Dispute

Central Radio Company (“CRC”) is a radio manufacturing and repair business located in Norfolk, Virginia. In April 2010, the Norfolk Regional Housing Authority (“NRHA”) initiated a condemnation proceeding against CRC and other adjacent landowners. The NRHA initiated the proceeding so that it could transfer the land to Old Dominion University. The action was initially dismissed, but the NRHA appealed. While the appeal was pending, CRC put up a sign on the side of their building that said, “50 YEARS ON THIS STREET / 78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT DOMAIN!” An employee of Old Dominion University complained about the sign and a local zoning official for the City of Norfolk (“the City”) informed CRC that the banner violated Norfolk’s former sign code. The official cited CRC for displaying a sign that was too large and for failing to obtain a certificate before installing the sign. CRC subsequently filed an action to enjoin the city from enforcing the sign code.

The City’s Former Sign Code

The former sign code, which has since been amended, applied to “any sign within the city which is visible from any street, sidewalk or public or private common open space,” but did not include any “flag or emblem of any nation, organization of nations, state, city, or any religious organization,” or any “works of art which in no way identify or specifically relate to a product or service.” The code also mandated that individuals who wished to display a sign that fell within the aforementioned definition limit their sign to a certain size. The size of the sign depended on whether it was classified as “temporary” or “freestanding.”

Further, a sign that fell within the code’s definition had to be approved before being displayed. The individual seeking to display the sign had to apply for a certificate from the city, which in turn would review the application for compliance with the code. If the city determined that the sign complied with the code, it would issue a certificate to the individual seeking to display the sign.

The Supreme Court Vacates the Fourth Circuit’s Holding and Remands for Further Consideration

CRC alleged that the sign code was unconstitutional, arguing that it exempted certain flags or emblems, but not others. CRC also argued that the former sign code was a content-based regulation that warranted strict scrutiny. The district court disagreed. It held that the sign was content-neutral and applied intermediate scrutiny. In doing so, the district court concluded that the City’s justification for the regulation, which was to ensure that drivers and pedestrians would not be distracted when they viewed the signs from the road, satisfied intermediate scrutiny. CRC appealed and the Fourth Circuit affirmed the district court’s holding. CRC appealed to the Supreme Court, which vacated the Fourth Circuit’s ruling in light of its decision in Reed v. Town of Gilbert and remanded the case.

The Fourth Circuit Holds that the Sign was Content-Based and Applies Strict Scrutiny

On remand, CRC argued that the sign code was a content-based restriction on speech and the Fourth Circuit agreed. The court reasoned that the regulation applied to secular flags and banners, but did not apply to religious flags and banners, thereby making it a content-based restriction. Next, the court applied strict scrutiny and tested whether the City’s justification was compelling enough to restrict CRC’s speech. The court pointed out that neither it nor the Supreme Court had ever held that traffic safety was compelling enough to restrict speech. As a result, the Fourth Circuit reversed the district court on this issue.

The Fourth Circuit Dismisses CRC’s Claim for Prospective Relief and Affirms The District Court’s Holding Regarding CRC’s Discrimination Claim

CRC raised two other issues on appeal. First, CRC requested prospective relief based upon allegations of unconstitutional restrictions on speech. The court recognized that because the legislature amended the sign code and was unlikely to change it back to its prior form, the claim was moot and should be dismissed.

Second, CRC argued that the City applied the sign code in a discriminatory manner. The Fourth Circuit disagreed, holding that there was not enough evidence to show that the City acted with a discriminatory intent. As a result, the Fourth Circuit affirmed the district court’s holding on this issue.

The Fourth Circuit Dismisses in Part, Affirms in Part, Reverses in Part, and Remands for Further Proceedings

As a result, the Fourth Circuit dismissed CRC’s claim for prospective relief, affirmed the district court’s ruling on CRC’s discrimination claim, reversed the district court on the content-based versus content-neutral issue, and remanded the case for a determination of damages.




By Taylor Ey

On August 6, 2015, the Fourth Circuit issued its unanimous, published opinion in the civil case of Cahaly v. LaRosa.  This case involves Mr. Robert Cahaly’s (“Plaintiff”) constitutional challenge of South Carolina’s anti-robocall statute (S.C. Code Ann. § 16-17-446(A)), asserting that the statute violates the First Amendment.  After applying the Supreme Court’s 2015 test in Reed v. Town of Gilbert, the Fourth Circuit decided that South Carolina’s statute did not survive strict scrutiny.  However, it also decided that Cahaly lacked standing to bring his other constitutional challenges.  Cahaly also sought damages from law enforcement officials, Paul C. LaRosa, III, and Reginald I. Lloyd (“Defendants”), who arrested him.  The Court affirmed the district court’s grant of summary judgment in favor of defendants.

Applying Reed to Determine Content Neutrality

The Fourth Circuit applied the test in Reed to determine whether the statute’s restriction was content-neutral based restrictions on speech.  The statute prohibits robocalls that are “for the purpose of making an unsolicited consumer telephone call” or are “of a political nature including, but not limited to, calls relating to political campaigns.”

Under Reed, as a threshold inquiry, courts assess whether the law is content neutral on its face.  Next, if facially neutral, courts ask whether the law cannot be justified without reference to the content of the regulated speech or adopted by the government because of a disagreement with the message the speech conveys.

Applying Reed, the Fourth Circuit found that the statute is content based on its face.  The statute forbids calls with a consumer or political message and does not apply to calls made for any other purpose.

Because the Regulation Is Content Based, the Court Applied a Strict Scrutiny Analysis  

To survive strict scrutiny, the government must prove that the restriction furthers a compelling government interest and is narrowly tailored to further that interest.  In this case, South Carolina asserted its interest was to “protect residential privacy and tranquility from unwanted and intrusive robocalls.”  The Fourth Circuit assumed that it was a compelling interest.  However, it held that the statute was not the only way to serve this interest, and thus the statute was unconstitutional.  The Court further stated that the statute was underinclusive.

Plaintiff Lacked Standing to Assert Compelled-Speech Challenge

Additionally, Cahaly raised a compelled speech challenge, which the Defendants appealed.  Defendants argued that Calahy did not suffer an “injury in fact,” and therefore did not have standing to challenge the exceptions to the statute.  The Fourth Circuit agreed because Cahaly was not charged with a violation of the statute.  Because the district court ruled for Cahaly, stating that the exceptions were unconstitutional, the Fourth Circuit vacated the district court’s judgment on this issue.

The Fourth Circuit Affirmed the District Court’s Grant of Summary Judgment

The arresting officer had probable cause to arrest Cahaly for violating the anti-robocall statute.  Officer LaRosa had six witnesses who described the robocalls, a recording of a phone call, and an investigation that connected the phone number to Cahaly.  This evidence was sufficient to give probable cause, and therefore the Court affirmed.


By Sarah Saint

On June 15, 2015, the Fourth Circuit issued a published opinion in the civil case of Hunter v. Town of Mocksville, North Carolina. Plaintiffs Keith L. Hunter (“Hunter”), Rick A. Donathan (“Donathan”), and Jerry D. Medlin (“Medlin”)—officers of the Mocksville Police Department (“MPD”) in Mocksville, North Carolina—were concerned about corruption in the MPD and reached out to the North Carolina Governor’s Office as public citizens. Public employees still have First Amendment rights when they speak as “citizen[s] on a matter of public concern.” Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (quotation marks and citation omitted). Accordingly, Plaintiffs enjoy First Amendment protection in their outreach. The Fourth Circuit affirmed the district court’s denial of summary judgment to Defendants Robert W. Cook (“Cook”), Administrative Chief of Police of the MPD, and Christine W. Bralley (“Bralley”), Town Manager of the Town of Mocksville.

Misconduct in the MPD

Plaintiffs Hunter, Donathan, and Medlin became concerned with Defendant Cook’s behavior and leadership as police chief. Plaintiffs saw him excessively drink alcohol in public and in uniform, which they felt reflected poorly on the police department. They also believed Cook drove a police car with blue lights flashing and behaving as a law enforcement officer when he had never been certified, in violation of the law. Further, Plaintiffs suspected Cook misused public funds for personal gain, racially discriminated, and “fixed” tickets for his friends.

Plaintiffs reported their concerns to Defendant Bralley but saw no improvement and worried about retaliation. Deputy police chief Daniel Matthews (“Matthews”) criticized Donathan regarding his concerns he raised with Bralley, and Cook demoted Medlin.

In November 2011, Cook reorganized the department, giving Matthews a promotion to second-in-command and demoting Hunter, one of only two African-Americans in the MPD. Hunter subsequently filed a grievance but his concerns were dismissed. Donathan was promoted and instructed to “adhere to the ‘politics’ of the MPD.” The next month, the three Plaintiffs and two other officers met privately to discuss their concerns and decided to seek outside investigation as private citizens.

Plaintiffs met with the National Association for the Advancement of Colored People (“NAACP)”, which advised them to contact a state agency. Hunter purchased a disposable phone so they could report their citizen complaints separately from their affiliation with the MPD. They then contacted the North Carolina Attorney General with the disposable phone. The Attorney General referred them to local individuals closely aligned with Cook, and the Plaintiffs felt they could not contact them. Plaintiffs called the North Carolina Governor’s Office with the disposable phone and expressed their concerns with no identifying details. Donathan later identified the MPD to the Governor’s Office, and the Governor’s Office offered to report their concerns to the State Bureau of Investigation (“SBI”).

The next week Medlin saw a local SBI agent at the MPD and noted the SBI agent had a close relationship with Cook and Mathews. The agent called the disposable phone, but the Plaintiffs did not return the call and disposed of the disposable phone because they felt they could not trust the agent. The phone was found, and the agent contacted the Davie County Sheriff’s Office to see if the phone belonged to anyone at the Sheriff’s Office. The Sheriff’s Office contacted the MPD and asked to run the number through MPD records. Bralley set up an online Sprint account and saw that both Donathan and Medlin had called and received calls from the disposable phone using their MPD-issued mobile phones.

MPD Fired Plaintiffs in Retaliation

Cook fired all three Plaintiffs for “conduct unbecoming a Officer” at the end of December 2011, the first time he had fired anyone at MPD, even though officers had used illegal drugs and engaged in criminal activity during his tenure. Later, in a memo to the town attorney, Cook mentioned Plaintiff’s call to the Governor and SBI and claimed the Plaintiffs conspired to discredit Cook, Bralley and others.

District Court Denied Summary Judgment to Defendants

In April 2012, Plaintiffs brought suit against Cook, Bralley, and the Town of Mocksville alleging their First Amendment rights were violated because they were fired for speaking out about corruption at the MPD. After filing an answer and engaging in discovery, Defendants moved for summary judgment. In October 2013, the district court granted summary judgment to all Defendants on the Section 1983 claims but denied summary judgment on the state law wrongful discharge and constitutional claims. The district court granted a motion for reconsideration and reversed course as to Cook and Bralley, holding that they were not entitled to qualified immunity.

District Court Rightfully Rejected Defendants’ Motion for Summary Judgment on Qualified Immunity Grounds

Qualified immunity shields government officials “who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

The Fourth Circuit rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity—arguing that no constitutional violation occurred because Plaintiffs spoke as public employees and not citizens, so the First Amendment does not protect Plaintiffs from retaliation. Courts must balance the interests of the public employee as a citizen with the right to speak out with the state’s interest in controlling the operation of the agencies. This balancing test has two steps. The first step asks whether the public employee spoke as a citizen on a matter of public concern. If the answer is no, the employee does not have First Amendment protections. If the answer is yes, the next step asks whether the public employee’s interest in speaking out about the matter of public concern outweighs the government’s interest. The first step is the primary concern of this appeal. To determine whether the public employee spoke as a citizen, the court must consider the employee’s daily professional activities.

The Defendants contend that reporting crimes is the daily professional activities of police officers like the Plaintiffs. However, the Court found calling the Governor’s Office and reporting concerns about the MPD are not part of officers’ daily professional activities. Accordingly, the Fourth Circuit found that the Plaintiffs were acting as private citizens, not public employees, speaking out on matters of public concern. Defendants asserted no countervailing state interest.

The Fourth Circuit also rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity because the rights were not clearly established at the time. The dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful. Here, it was clearly established in the Fourth Circuit that an employee’s speech about serious government misconduct is protected under the First Amendment. Therefore, the district court rightfully denied qualified immunity to Cook and Bralley on the bases that no violation occurred and that the law was not clearly established. Accordingly, the Fourth Circuit affirmed the judgments of the district court.


Judge Niemeyer dissented because he would grant qualified immunity to Cook and Bralley. It was not clear to Cook and Bralley at the time the officers were fired that they had complained as citizens and not as employees. It was not clear as a matter of law that police officers complaining to the Governor’s Office about departmental corruption is speech by a citizen and not an employee. Had they complained as employees, they would not have First Amendment protections and retaliatory firing would have been lawful. Officials should not be held liable for “bad guesses in grey areas.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). To the dissent, Cook and Bralley made a bad guess in a grey area and accordingly should not be held liable.

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By Malorie Letcavage


In a published opinion of a civil case issued on April 28, 2015, the Fourth Circuit affirmed the lower court’s decision to grant summary judgment on the basis of qualified immunity in the case of Raub v. Campbell. The appellant, Brandon Raub, argued that his Fourth Amendment right to be free from unreasonable seizures, and his First Amendment right to free speech were violated by the appellee, Michael Campbell. Raub also sought injunctive relief even if his constitutional claims failed. In reviewing the district court’s grant of summary judgment, the Fourth Circuit used a de novo standard. The Fourth Circuit upheld the district court’s grant of summary judgment on the basis of qualified immunity because it found that Raub’s Fourth Amendment rights were not violated, he had not pled sufficient facts for a First Amendment claim and there was no abuse of discretion in the district court’s dismissal of his injunctive claim for relief.

Factual Background

In the summer of 2012, two Marine veterans that had served with Brandon Raub contacted the FBI about Raub’s Facebook posts. Raub posted threatening messages and employed extremist language in numerous posts. The FBI and local law enforcement visited Raub to question him about his Facebook activity. The agents reported that Raub’s behavior was unusual because during the interview he was preoccupied, could not maintain eye contact and displayed extreme mood swings.

The agents contacted Michael Campbell, a certified mental health “prescreener” affiliated with the local emergency services. Campbell recommended Raub be detained for evaluation, at which point the officers took Raub to the local jail. Campbell interviewed Raub and noted the same behavior the officers had described; Raub was distracted, and had trouble answering questions. Campbell concluded Raub might be paranoid and delusional.

Campbell petitioned and was granted a temporary detention from the magistrate because Raub was displaying signs of psychosis. Four days into the temporary detention, the court ordered that Raub be admitted to the hospital for thirty days. However, a few days later Raub was released because the court found that the petition had insufficient factual allegations. Raub then filed suit under 42 U.S.C. §1983 against Campbell. The district court granted Campbell’s motion for summary judgment due to qualified immunity and denied Raub’s request for injunctive relief.

42 U.S.C. 1983

This statute provides an avenue to pursue a civil action for a deprivation of constitutional rights. It lays out that any person acting under the color of state law (which, as in this case, can include a mental health professional associated with emergency services) who subjects anyone to a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” will be liable to the party injured.

Appellant’s Fourth Amendment Rights Were Not Violated

The court explained that qualified immunity analysis has two prongs: 1. Whether the plaintiff has established the violation of a constitutional right and 2. Whether that right was clearly established at the time of the alleged violation.

The court decided to start its evaluation with the second prong and held that Campbell’s conduct was not proscribed by clearly established law. The court noted that a seizure requires probable cause but there is a lack of clarity in the law concerning seizures for psychological evaluations. The court then went on to cite the major cases in the Fourth Circuit which all held that that seizures for psychological evaluation were upheld when the person was a threat to himself or others. The court held that due to the totality of the factors, including the content of Raub’s Facebook posts, the initial observations by the officers and Campbell’s observations of Raub, Campbell did not violate Raub’s Fourth Amendment rights because his petition to detain was reasonable based on existing precedent.

Appellant Failed to Allege Sufficient Facts for a First Amendment Claim

            Though Raub contended that Campbell only recommended detention based on Raub’s “unorthodox political statements,” the court found that Campbell had numerous other reasons for recommending detention. The court cited the content of the Facebook posts, Raub’s behavior during the interview, and the increasingly threatening nature of his posts. Even if the political statements were part of the decision, the court found Campbell had plenty of other reasons for Raub to be detained. Thus the court held that Raub did not sufficiently allege facts for a First Amendment violation and Campbell was entitled to qualified immunity.

Appellant’s Claim for Injunctive Relief Was Properly Rejected 

            The court reviewed the denial of injunctive relief for abuse of discretion, and it found none. Under §1983 when a plaintiff is seeking injunctive relief, he needs to demonstrate a real or immediate threat that he will be wronged again in a similar way. However, Raub only alleged that his political beliefs would subject him to seizures and retaliation in the future. The court found that this claim was too speculative and did not reach the level needed to grant equitable relief.


The court did not find that Raub’s Fourth Amendment rights were violated nor did it find that he had alleged sufficient facts for a First Amendment claim. It also found no abuse of discretion in the dismissal of the claim for injunctive relief. Therefore, the court affirmed the lower court’s grant of summary judgment.

By Cate Berenato

Da Bishop

On July 9, 2015, in the civil, published case Jehovah v. Clarke, the Fourth Circuit reversed the Eastern District of Virginia’s dismissal of inmate Jesus Emmanuel Jehovah’s free exercise and deliberate indifference claims against the Virginia Department of Corrections (“VDOC”).

First Amendment, RLUIPA, and Eighth Amendment Claims 

The issue in this case was whether VDOC violated the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) when it a) prohibited Mr. Jehovah from drinking wine during communion; b) required him to work on Sabbath days; and c) assigned him non-Christian cellmates. An additional issue is whether, under the Eighth Amendment, VDOC was deliberately indifferent to Mr. Jehovah’s medical needs.

Mr. Jehovah’s Experience with VDOC

Mr. Jehovah’s religion required him to take communion by drinking wine and consuming bread dipped in honey, olive oil, sugar, cinnamon, and water. While at Nottoway Correction Center (“NCC”), Mr. Jehovah was not allowed to take communion. When he was transferred to Sussex I Prison (“SIP”), Mr. Jehovah filed grievances, which went unanswered, and VDOC issued a policy prohibiting wine consumption during communion.

Mr. Jehovah’s religion also did not allow him to work from Friday at sundown until Sunday at sundown, but VDOC required inmates to work a certain number of hours per week to attain good conduct allowances and sentence credits. VDOC refused to accommodate Mr. Jehovah after he was assigned to work seven days a week. VDOC also did not approve Mr. Jehovah for jobs that would accommodate his beliefs, despite previously approving him for such jobs.

Additionally, though Mr. Jehovah’s religion did not allow him to be housed with non-Christians, several of his cellmates were not Christian and VDOC did not respond to his requests to be reassigned. Finally, Mr. Jehovah displayed various symptoms of medical illnesses, but doctors associated with VDOC failed to provide care for many of the symptoms and improperly treated others.

Procedural Posture

The District Court dismissed Mr. Jehovah’s Sabbath, cell assignment, and deliberate indifference claims. It granted summary judgment in favor of VDOC on Mr. Jehovah’s communion claims.

The District Court Should Not Have Dismissed Mr. Jehovah’s Claims or Granted Summary Judgment in Favor of VDOC

The Fourth Circuit reviewed the district court’s dismissals and grant of summary judgment de novo. Dismissal is proper only if Mr. Jehovah did not allege facts that state a claim for which relief can be granted. In assessing the grant of summary judgment, the Fourth Circuit looked at the facts and inferences in the light most favorable to Mr. Jehovah. Summary judgment is only proper if a reasonable jury could not have returned a verdict in Mr. Jehovah’s favor.

The First Amendment protects the free exercise of religion. If a prison regulation impinges an inmate’s First Amendment right, the regulation is valid if it is reasonably related to a legitimate interest of the prison. The Fourth Circuit considered a four-pronged test to determine the validity of the prison policies: a) “is there a valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it?”; b) “are there alternative means of exercising the right that remain open to prison inmates?”; c) “what is the impact accommodation of the asserted constitutional right will have” on the prison?; d) Do there exist obvious, easy alternatives, to suggesting that the regulation is an exaggerated response to prison concerns?” The prisoner must prove the regulations invalid.

RLUIPA “prohibits any government entity from imposing a substantial burden on an inmate’s religious exercise unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.” While an inmate proves a substantial burden on religious exercise, the government must “establish that the burden is the least restrictive way to further a compelling governmental interest.”

The district court’s grant of summary judgment regarding the wine ban was improper because Mr. Jehovah did not have an opportunity to brief whether the wine ban substantially burdened his exercise of religion. Additionally, the wine ban was not the least restrictive means to address the government’s interest in security. The Fourth Circuit found that an interest in restricting inmate wine consumption was valid, but the wine consumption ban could have provided alternatives like dipping bread into wine during communion. The Fourth Circuit stated that the prison population would not have been endangered by one inmate consuming a small amount of wine, and VDOC did not offer any alternatives or accommodations for Mr. Jehovah. Thus, the Fourth Circuit reversed the district court’s grant of summary judgment.

The district court’s dismissal of Mr. Jehovah’s Sabbath claims was improper. VDOC’s refusal accommodate Mr. Jehovah’s Sabbath observances by allowing him to transfer jobs may have violated RLUIPA because it burdened his ability to freely exercise his religion. VDOC may have violated the First Amendment because its refusal to accommodate was not rationally related to any prison interest that the court could discern.

Mr. Jehovah’s religious practices were chilled Under RLUIPA when VDOC placed him with a cellmate who subjected him to “anti-Christian” rhetoric. VDOC’s refusal to assign Mr. Jehovah to a different cellmate was again not related to a legitimate interest of the prison’s that the Fourth Circuit could detect. In fact, the placements with non-Christians may have been deliberate on the part of VDOC.

Finally, the District Court should not have dismissed Mr. Jehovah’s deliberate indifference claims under the Eighth Amendment. To establish deliberate indifference, an inmate must prove: a) an objectively serious deprivation of a basic human need, and b) a subjectively culpable state of mind on behalf of the officials. Here, VDOC did not claim that Mr. Jehovah’s alleged symptoms were not serious health issues. Additionally, Mr. Jehovah’s doctors only treated some of his ailments, often improperly, and ignored others. Thus, the district court should not have dismissed Mr. Jehovah’s Eighth Amendment claim.


The Fourth Circuit reversed the district court’s dismissals of Mr. Jehovah’s claims and reversed its grant of summary judgment in favor of VDOC.

By Chad M. Zimlich

Today, in the civil case Reynolds v. Middleton, a published opinion, the Fourth Circuit vacated and remanded a finding of summary judgment in favor of Henrico County, Virginia.

A New Ordinance Restricting Speech

A homeless man, questioning the constitutionality of Henrico County’s amendment to an ordinance restricting panhandling while on a highway, brought the issue before the Fourth Circuit. The amended ordinance was found to be constitutional by the District Court of the Eastern District of Virginia, and the question presented was as to whether or not summary judgment in favor of the County had been appropriate.

Chief of Police Combats Panhandling Seeing It as an “Increasingly Present Danger”

Before 2012, the County had a prohibition on anyone standing on the road (including the medians) and distributing leaflets, asking for money, or selling goods. The Henrico County Board of Supervisors amended this prohibition after recommendations by Chief of Police, Douglas Middleton, urged the board to include “sitting” as well as standing within the activities prohibited. The recommendations were due to an increase in complaints that more and more individuals were soliciting while sitting in medians, which Chief Middleton saw as a possible traffic-safety concern. Without consulting traffic-safety or any other experts, and basing his opinion on his experience as a law-enforcement officer, he requested that the County Attorney’s Office prepare a report, and brought his concern to the Board of Supervisors, who passed the Amended Ordinance.

In response to no longer being able to solicit donations or offering to work in exchange for food, Robert S. Reynolds brought a pro se action challenging the Amended Ordinance under the First Amendment. Both the County and Reynolds made cross-motions for summary judgment, and the district court granted the County’s motion and denied Reynolds’ motion.

A Gamut of Old Rules and Newer Interpretations

The question of constitutionality under the First Amendment is not new, however, it is one that is still being defined. In a case like this, the government has the power to regulate speech in a traditional public forum (such as a median or public sidewalk), but that power is limited. The First Amendment requires regulations that are content-neutral in time, place, and manner of speech to be subject to intermediate scrutiny, or “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Basically, the regulation must not burden substantially more speech than necessary based on the interest.

A Question of Proof, and the Shifting of Burdens

The next rule to be iterated by the Fourth Circuit was that the burden of proof shifts in a First Amendment case depending on where you are in the question of constitutionality. It begins with a requirement that the plaintiff show the speech in question is protected by the First Amendment, and that the action by the government restricted that speech. Next, the burden shifts to the government to prove that the speech restriction was justified as per the relevant constitutional requirements.

Differing Evidentiary Standards and an Interpretation of McCullen

Finally, the Fourth Circuit explained that the issue of what the government must present evidentially depends on the speech regulation in question. The Fourth Circuit had not required some kind of evidentiary support to uphold speech regulations that are not materially distinguishable from regulations that have been found to be constitutional by the Fourth Circuit or the Supreme Court. Additionally, there is not normally a requirement to present evidence showing the existence of the governmental interest. However, in this case, the Fourth Circuit clarified that intermediate scrutiny, as seen through the recent Supreme Court case McCullen v. Coakley, required that the government “present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary.”

A Lack of Evidentiary Support and an Overbroad Prohibition of Speech

Reynolds first argued that the County did not have sufficient evidence that roadway-solicitation was dangerous or that the Amended Ordinance actually furthered the interest of traffic-safety. The court quickly disagreed with this argument, stating that the government interest was sufficiently shown by Chief Middleton’s testimony, along with a “healthy dose of common sense.”

Reynolds’ second argument, however, proved to be much more effective. He contended that, even if the interest was sufficient, the County failed to show that the regulation was narrowly tailored and did not substantially burden more speech than necessary. The Fourth Circuit agreed, noting that the danger asserted by the evidence provided was concerned with busy intersections. The Amended Ordinance, however, went far beyond this, eliminating virtually all speech while not restricting pure conduct such as physically blocking traffic. This included prohibiting the passing out of political leaflets, and soliciting charitable contributions, and the most protected kinds of speech. Furthermore, there was no evidentiary support that the Amended Ordinance was to combat a countywide problem, or that the County had tried to use available alternatives to address its safety concerns.

McCullen Says Lack of Evidence Means County Fails Intermediate Scrutiny

Because the County did not provide enough evidentiary support for its speech restriction to withstand intermediate scrutiny, it was not entitled to summary judgment. However, the Fourth Circuit decided to remand the case to provide the County an opportunity to gather and present evidence sufficient to satisfy the standard laid out in McCullen.

By Chad M. Zimlich

In a decision handed down on Tuesday, the Fourth Circuit was confronted with the case of Central Radio Co. Inc. v. City of Norfolk, which arose from a citation of the owner of a 375 square-foot sign and a possible violation of the owner’s rights under the First and Fourteenth Amendments.

The Constitutionality of the Sign Code

The issue presented before the Fourth Circuit dealt with a zoning ordinance the governed the placement and display of signage which was adopted by the City of Norfolk (“the City”). The purpose of said code, Norfolk, Va., Code app. A § 16 (2012) (“the Sign Code”), was both to improve the “physical appearance” of the city, as well as to prevent the hazards accompanying too many, too large, or inappropriately placed signs.

Eminent Domain and a Protest Sign

The sign in question was placed by the Central Radio Company, Inc., (“Central Radio”) after a prolonged court battle with the City. The City, more specifically through the Norfolk Redevelopment and Housing Authority (“NRHA”), initiated condemnation proceedings against Central Radio, among others, back in April of 2010 in order to transfer property to Old Dominion University. After litigation, the Virginia Supreme Court ruled that the NRHA lacked authority to take Central Radio’s property under its eminent domain power, as the property was not blighted. In March of 2012, while the state court case was still pending appeal, Central Radio placed a 375 square-foot sign showing an American flag, Central Radio’s logo, a red circle with a slash across the words “Eminent Domain Abuse,” and the phrase “50 Years on this street, 78 years in Norfolk, 100 Workers Threatened by Eminent Domain!”

An employee of Old Dominion University brought the sign to the attention of the City, which informed Central Radio that the sign was in violation of the zoning ordinance. After Central Radio failed to remove the sign, the City issued citations for not properly obtaining a permit and displaying an oversized sign. Central Radio responded with a civil suit challenging the enforcement of the Sign Code.

Central Radio claimed that it was unconstitutional for the code to restrict their sign’s size while allowing exceptions for flags, emblems, and works of art. Additionally, they alleged that the requirement of a permit was an impermissible prior restraint on their freedom of speech, and they further claimed that the City applied the Sign Code in a discriminatory and arbitrary manner. However, the District Court for the Eastern District of Virginia disagreed and found for the City, and Central Radio appealed.

The Definition of Content-Based Restrictions on Speech

As Central Radio’s main argument revolved around content-based restrictions on speech, both as a facial and as an as applied challenge, they claimed that the Sign Code did not withstand Strict Scrutiny. However, as the Fourth Circuit’s majority opinion pointed out, a “regulation is not a content-based regulation of speech if (1) the regulation is not a regulation of speech, but rather a regulation of the places where some speech may occur; (2) the regulation was not adopted because of disagreement with the message the speech conveys; or (3) the government’s interests in the regulation are unrelated to the content of the affected speech.” If it is indeed content-based, it is subject to strict scrutiny. However, if it is content-neutral it is only subject to intermediate scrutiny.

Should it be determined as content-neutral and under intermediate scrutiny, the question becomes whether the regulation “furthers a substantial government interest, is narrowly tailored to further that interest, and leaves open ample alternative channels of communication.”

Content-Based Restrictions Must Target Content

First examining whether the Sign Code was adopted due to a disagreement over what speech occurs, the Court focused on any “censorial intent” shown through the relationship between the legislative purpose of the Code and the content distinctions it addresses. In doing so, it reiterated that the examination is whether the relationship is merely reasonable, not optimal. The Court rejected Central Radio’s contention that because flags and works of art “may have the same [detrimental] effect on aesthetics and traffic safety as exempted displays,” there was not a “reasonable relationship” to a legitimate state interest, making the Code content-based. The Court instead concluded that because the Code applies regardless of the message conveyed and only restricts the “time, place, or manner” of a sign’s location, it had a reasonable relationship to legitimate interests and was not a content-based restriction. The Court went on to distinguish “art” as an acceptable category for an exemption in this case, as the exemption was also content-neutral which bolstered the City’s argument that the Code was not content-based.

Because the Code was determined to be content-neutral, the Court continued its analysis based on an intermediate scrutiny rationale. This was an easy hurdle for the City to surpass, as aesthetics and traffic safety “are substantial government interests.” The Court even pointed out instances of drivers honking horns in support as evidence that the sign had an effect on traffic. Additionally, even the type of speech attempted by Central Radio was not eliminated, only restricted in size, leaving it an alternative, albeit smaller, means of communicating. The Court reiterated that there was no constitutional right for having the location or manner of speech that the speaker would see as most desirable.

Next, the Court examined the claim that the Sign Code was selectively enforced, which would have required Central Radio to show that there was a discriminatory effect on them which was motivated by a discriminatory purpose. However, Central Radio had not submitted the requisite evidence to prove such a claim, and therefore, the Court determined the district court was proper in its dismissal of this claim.

As for the claim of prior-restraint of speech in the granting of permits for signage, the Court also found for the City. While there are procedural safeguards for the decision-making processes relating to speech, those safeguards are in place only for content-based restrictions, which the Court had already determined were not present here. There was no circumstance of “unlawful favoritism,” nor was there an arbitrary amount of discretion given to the permitting officials.

A Brief Dissent

A dissenting opinion written by Judge Gregory questioned the majority’s lack of consideration of the political speech present in the case. The fact that the speech in question was prompted by the government’s attempt to seize Central Radio’s land was something that should not be ignored. Furthermore, the dissent disagreed with the majority’s conclusion that the City had demonstrated a “reasonable fit” between the governmental interest and the regulation. The dissent also felt that the Code discriminated based on content, even though it was asserted to have a content-neutral purpose.

A Banner Day for the Norfolk Sign Code

The Majority’s Opinion reiterated the standard for content-neutral speech restrictions, and the Sign Code passed its muster. It affirmed the district court’s ruling of summary judgment in favor of the City, and upheld the Code as constitutional, allowing for the citation of Central Radio and the removal of its sign. Apparently size does matter.