June Newsletter (Issue 06-2019)

United States Supreme Court Holds That Taking Claims May Be  Proceed Directly In Federal Court Without First Seeking Relief In State Court

Facts and Procedure: The Township of Scott, Pennsylvania, passed an ordinance requiring that “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.”  State officials entered Petitioner’ Rose Mary Knick’s property to investigate, without a search warrant, Knick’s property, whose 90-acre rural property has a small family graveyard.  After the search Knick was notified that she was violating the ordinance.  Knick sought declaratory and injunctive relief in state court on the ground that the ordinance effected a taking of her property, but she did not bring an inverse condemnation action under state law seeking compensation.  The Township responded by withdrawing the violation notice and staying enforcement of the ordinance.  Without an ongoing enforcement action, the court held, Knick could not demonstrate the irreparable harm necessary for equitable relief, so it declined to rule on her request

Knick then filed an action in Federal District Court under 42 U. S. C. §1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment.  The District Court dismissed her claim under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City473 U. S. 172, which held that property owners must seek just compensation under state law in state court before bringing a federal takings claim under §1983.  The Third Circuit affirmed and the United States Supreme Court granted certiorari.

Opinion: In a five to four opinion the Supreme Court in Knick v. Township of Scott held that a plaintiff, who alleged that a  local government ordinance violated the takings clause, may proceed directly in federal court instead of first litigating in state court as required by Williamson County Regional Planning Commission v. Hamilton Bank, thereby overruling this 34 year precedent.  Under Williamson County, a plaintiff was required to first file its claim in state court because until the state court denied payment there was no violation  of the Fifth Amendment.  The reasoning is that property can be taken by the payment of compensation; therefore, until there was a determination that there was no compensation the Fifth Amendment was not triggered.  Claims for a taking may now proceed directly in federal court.  Knick v. Township of Scott (USSC 17-647, 6/21/19).

Comment Howard: This may be the sleeper case of the current term of the Supreme Court having a major impact or local government.  There is no reason to dive into the weeds, to analyze how or why the court reached this result, except the majority felt that Williamson was in the first instance wrongfully decided and had been widely criticized.  What is important, is that the opinion in the Township of Scott, will radically change procedures involving inverse condemnation cases by putting these cases directly into federal court.  In her dissent, Justice Kagan, joined by three other Justices, noted that the consequence of Township of Scott was to channel a massive number of quintessential state property cases, involving complex state law issues into federal court.  The majority opinion written by Chief Justice Roberts emphasized that: “Given the availability of post-taking compensation, barring the government from acting will ordinarily not be appropriate.”  Some commentators have also suggested that local officials may be reluctant to get into a brouhaha over ordinances, when opponents can argue that the ordinance violates the constitutional rights of citizens.  I am not sure that I agree with this point because that is what happens anyway. “The majority opinion also rests on a reading of the takings clause, that a constitutional violation occurs at the moment property is “taken,” even if compensation is paid later.  This ruling, that may have far reaching  consequences beyond this case.  See: Scotusblog

Probable Cause To Arrest Generally Defeats First Amendment Free Speech Retaliation Claim
Facts and Procedure: In this case, the officers were working an annual event in Alaska known as the “Arctic Man,” which is a weeklong winter festival known for its extreme sports and extreme alcohol consumption.  Up to 10,000 people descend on Paxson, a small community of about two-dozen people, to engage in high-speed ski and snowmobile races, bonfires, and parties.  Extra police officers are called in to deal with the raucous crowds.  During the Festival an encounter occurred where two police officers tried to engage Russell Bartlett to move his beer keg inside because minors were making off with the alcohol.  This led to an altercation in which Bartlett was subdued and arrested.  Bartlett sued claiming that he was exercising his free-speech rights by discouraging citizens from talking with the officers.  This case wound its way through the courts and ended up before the United States Supreme Court.  This setting provided the background for the Supreme Court’s opinion, which in a broader sense deals with police engaging citizens who are protesting or who are arguing with the police.

Analysis: In Nieves v. Bartlett, the United States Supreme Court held that if a police officer has probable cause to make an arrest, that the officer is generally shielded from any retaliation claim in free speech claims, except in situations where the officer was treating the defendant differently than other persons similarly situated.  Conversely, in the absence of probable cause to make the arrest, “then the Mt. Healthy test governs: Under Mt. Healthy,the plaintiff must show that the retaliation was a substantial or motivating factor behind the arrest, and, if that showing is made, the defendant can prevail only by showing that the arrest would have been initiated without respect to retaliation.

Chief Justice Roberts, the author of the majority opinion, reasoned that when reviewing an arrest, we ask “whether the circumstances, viewed objectively, justify [the challenged] action,” and if so, conclude “that action was reasonable whatever the subjective intent motivating the relevant officials.  A particular officer’s state of mind is simply “irrelevant,” and it provides “no basis for invalidating an arrest.”

Chief Justice Roberts justified the holding in Nieves v. Bartlettby  noting that:

Police officers conduct approximately 29,000 arrests every day, a dangerous task that requires making quick decisions in “circumstances that are tense, uncertain, and rapidly evolving.”

To ensure that officers may go about their work without undue apprehension of being sued, we generally review their conduct under objective standards of reasonableness. Nieves v. Bartlett (USSC 17-1174, 5/28/19).

Comment Howard:  The police finally get a break. The Court’s  opinion goes a long way to protecting police officers in difficult situations, particularly when they dealing with crowd control, although the rule applies in all free-speech retaliation claims.

In its opinion, the Court noted a situation where protesters are jaywalking, who are then singled out and arrested.  The difficulty for the police is in the exception.  So, if you never arrest a white person for jaywalking but arrest a person of color who was exercising his or her right of free speech or a news reporter you may fall under the exception, leading to litigation under the Mt. Healthy standard.  Remember Michael Moore was arrested for jaywalking in the Ferguson incident.

The rules in this case are very straightforward. If there is probable cause, the arrest will stand against a First Amendment free-speech retaliation claim.  If there is no probable cause then you could be litigating under the Mt.  Healthy standard, as to whether or not the retaliation was a substantial or motivating factor behind the arrest, and, if that showing is made, the officer can only prevail only by showing that the arrest would have been initiated without respect to retaliation.

The statement by Chief Justice Roberts in his opinion that the rule was respect to probable cause “generally applied” suggested to me that there still might be unanswered question.  Other Justices in their concurring opinions indicate that they also have questions.  For a more in-depth analysis of this question see:  See Howard M. Wasserman, in his Opinion analysis of  United States Supreme Court opinion: The First Amendment, Probable Cause And Questions Left Unanswered, (May. 28, 2019, 9:56 PM),

IMLA Free Speech Training Videos
Of note, is a recent notice from IMLA indicating that they have developed some training videos with respect to First Amendment Free Speech liability, in light of the Nieves opinion.

Dear IMLA Members.
In conjunction with the Legal and Liability Risk Management Institute, we want to make available two training videos that we believe city attorneys and police agencies should access.  They offer good advice in how to avoid liability.  Please distribute them widely.

Click here for instructions on how to access the training videos.

Ex Parte Communications By An Attorney With Clients Of Another Attorney Results In  Reprimand
In the May edition of the MMAA newsletter there was a discussion of an ethics case  before the Missouri Supreme Court involving ex parte communications with officials of Washington University,  by Jerome Dobson, a prominent employment lawyer in St. Louis.  The June10, 2019, edition of Missouri Lawyers Weekly reported that the Missouri Supreme Court issued a reprimand to Jerome Dobson for violating Rule 4–2.2 of the Rules of Professional Conduct for his ex-parte communications with officials from Washington University without going through attorneys for Washington University.  Based on my experience, it is not uncommon for lawyers to have ex parte communications with our municipal law clients in matters of litigation.  This was a highly litigated matter, although the Court did not elaborate any further other than just issuing a reprimand.  The case is: In Re: Dobson, SC97683

No Search Warrant Required To Take A Forced Blood Sample If The Person Arrested For DWI Is Unconscious
Facts and Procedure: Gerald Mitchell was arrested for operating a vehicle while intoxicated after a preliminary breath test registered a blood alcohol concentration (BAC) that was triple Wisconsin’s legal limit for driving.  The arresting officer drove Mitchell to a police station for a more reliable breath test using evidence-grade equipment.  By the time Mitchell reached the station, he was too lethargic for a breath test, so the officer drove him to a nearby hospital for a blood test.  Mitchell was unconscious by the time he arrived at the hospital, but his blood was drawn anyway under a state law that presumes that a person incapable of withdrawing implied consent to BAC testing has not done so.  The blood analysis showed Mitchell’s BAC to be above the legal limit, and he was charged with violating two drunk-driving laws. Mitchell moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against “unreasonable searches” because it was conducted without a warrant.  The trial court denied the motion, and Mitchell was convicted.  The Wisconsin Supreme Court affirmed the lawfulness of Mitchell’s blood test and Mitchell appealed to the  United States Supreme Court.

Analysis: In  Mitchell v.  Wisconsin,  the  United States Court held that no search  warrant was required in order to take a forced blood alcohol test of an  unconscious person,  arrested for drunk driving,  based upon exigent circumstances.  The Court begins its analysis by examining  an earlier opinion from Missouri, in which the United States Supreme Court held that Missouri’s implied consent law  could not be used to obtain a forced blood sample based on the fleeting biological nature of blood alcohol without violating the unlawful search and seizure provisions of the Fourth Amendment to the United States Constitution.  In Mitchell v.  Wisconsin, the facts supported a warrantless search because there was a compelling need for official action.

A driver’s unconsciousness does not just create pressing needs; it is itself a medical emergency.  In such a case, as in Schmerber, an officer could “reasonably have believed that he was confronted with an emergency.”

And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information.  In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities, such as attending to other injured drivers or passengers and preventing further accidents, may be incompatible with the procedures that would be required to obtain a warrant.  Thus, when a driver is unconscious, the general rule is that a warrant is not needed.  Mitchell v. Wisconsin, (USSC 18-6210, 6/27/19).

Comment Howard: This opinion is huge.  Life just got a lot  simpler for police officers. One simple general rule: When a driver is unconscious, a warrant is not needed to take a forced blood sample.  The opinion also lists most, if not all,  of the different  major cases where implied consent laws have been applied, as well as an excellent history of the development of implied consent laws providing the reader with a very good reference source.  This opinion could have changed the results of the case that is strikingly similar discussed in last month’s MMAA  newsletter.

Model Social Media Policy
MLA has drafted a Model Social Media Policy for its members.

Click here to access the resource library. If you need assistance in the log in process, please email Caroline at cstorer@imla.org.

Lemon Test, No Longer Has  Juice, Supreme Court Upholds Christian Cross On Public Property Where Public Funds Were Used
Facts and Procedure: Over 100 years ago, in 1918, after the end of WWI the residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s 49 soldiers who fell in World War I.  The committee decided that the memorial should be a cross, which was not surprising since the plain Latin cross had become a central symbol of the war.  The image of row after row of plain white crosses marking the overseas graves of soldiers was emblazoned on the minds of Americans at home.  The memorial would stand at the terminus of another World War I memorial, the National Defense Highway connecting Washington to Annapolis.  When the committee ran out of funds, the local American Legion took over the project, completing the memorial in 1925.

The 32-foot tall Latin cross displays the American Legion’s emblem at its center and sits on a large pedestal bearing, a bronze plaque that lists the names of all 49 county soldiers who had fallen in the war.  At the dedication ceremony, a Catholic priest offered an invocation and a Baptist pastor offered a benediction.  The Bladensburg Cross (Cross) has since been the site of many patriotic events honoring veterans on, e.g., Veterans Day, Memorial Day, and Independence Day.  Monuments honoring the veterans of other conflicts have been added in a park near the Cross.  As the area around the Cross developed, the monument came to be at the center of a busy intersection.  In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land where it sits, but the American Legion reserved the right to continue using the site for ceremonies.  The Commission has used public funds to maintain the monument ever since.

In 2014, the American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross’s presence on public land and the Commission’s maintenance of the memorial violated the First Amendment’s Establishment Clause.  The American Legion intervened to defend the Cross.  The District Court granted summary judgment for the Commission and the American Legion, concluding that the Cross satisfied both the test announced in Lemon v. Kurtzman, and the analysis applied by Justice Breyer in upholding a Ten Commandments monument.  The Fourth Circuit reversed and the United State Supreme Court granted certiorari.

Analysis: Justice Alito, writing for a 7 to 2 majority, utilized a history and tradition analysis, instead of the Lemon test or the test fashioned by Justice Breyer in the Ten-Commandment case.  The history and tradition analysis includes at least four considerations, showing that retaining established, religiously expressive monuments, symbols, and practices are quite different from erecting or adopting new ones.  First, these cases often concern monuments, symbols, or practices that were first established long ago,  (As in this case,  over 100 years ago),  making it difficult to establish the original purpose.  Second, as time goes by, the purpose associated with  long established monuments, symbols, or practices often multiply.  In this case, the Brandenburg cross became  a cultural symbol, where citizens gathered on Memorial Day, Veterans Day and other holidays  to remember the sacrifice made by veterans. Even if the monument’s original purpose was infused with religion, the passage of time may have obscured that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage.  Third, the message of a monument, symbol, or practice may evolve as with a city name like Bethlehem, Pennsylvania; Arizona’s motto “Ditat Deus” (“God enriches”), adopted in 1864; or Maryland’s flag, which has included two crosses since 1904.  Familiarity itself can become a reason for preservation.  Fourth, time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance.  Therefore, with the  passage of time there is a strong presumption of constitutionality.

 Finally, as World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal or alteration would not be viewed by many as a neutral act.

 Justice Alito, the author of the opinion noted that the LemonCourt ambitiously attempted to find a grand unified theory of the Establishment Clause, but failed as the Court has since taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance.  Oh, and by the way, the Court noted there is nothing that prevents government from removing these monuments or relocating them to private property.  American Legion v. American Humanist Association, (USSC 17-1717, 06/20/19)

Comment Howard:  In this case, the Court’s decision was narrow applying only to old monuments.  No grand quantum theory can  be claimed for the history and tradition analysis.  The Court made it clear that the history and tradition analysis did not apply to new monuments.  The dissent was vigorous noting that everyone conceded that the Brandenburg cross  was a Christian symbol and that it was on government land and government funds were used to pay for the maintenance of the property.  For further analysis  of this opinion click here. https://www.scotusblog.com/2019/06/symposium-decision-does-not-support-new-christian-only-monuments/

The Commerce Clause Prohibits  States From Establishing Durational Residential Requirements to Sell Alcoholic Beverages
Facts and Procedure: The 21stAmendment to the United States Constitution was adopted some 90 years ago,  repealing prohibition.  This Amendment gave broad powers to the states to regulate alcoholic beverages.  Total Wine, which operates 200 stores  in 23 states, applied for a license to run a retail store in Nashville, Tennessee.

The Tennessee Alcohol Beverage Commission (Commission) was prepared to  issue  a license to both applicants, when it was threatened with a lawsuit by the Tennessee Wine and Spirits Retailers Association (a statewide trade association hereinafter referred to as “Association”) if it issued a license.

The Commission then filed a declaratory judgment in state court, requesting a declaration that the two year in-state durational residential requirement to obtain a retail liquor license was unconstitutional because it violated the dormant Commerce Clause.  The case was removed to federal court where the District Court held that the two-year durational residential requirement violated the Commerce Clause and  was unconstitutional, notwithstanding the 21stAmendment.  This ruling was appealed to the United States Supreme Court.

 Analysis: The issue presented to the Supreme Court was whether or not the two-year in-state residential requirement was constitutional under the Commerce Clause, in light of the 21stAmendment.  The Association argued that the 21stAmendment allowed the Commission to establish an in-state two-year durational residential requirement, as a condition of issuing a state retail liquor license.  Justice Alito, writing for the Court started with a historical analysis of the dormant commerce clause.  He noted that a version of the dormant commerce clause concept first appeared in 1824, in Gibbons v. Ogden, written by Chief Justice Marshall.  Justice Alito, harkening back to one of the principal reasons that states gathered to adopt a new constitution was because of trade barriers, which obstructed the flow of commerce.

Under the Articles of Confederation, States notoriously obstructed the interstate shipment of goods.  “Interference with the arteries of commerce was cutting off the very life- blood of the nation.”  The Annapolis Convention of 1786 was convened to address this critical problem, and it culminated in a call for the Philadelphia Convention that framed the Constitution in the summer of 1787.

At that Convention, discussion of the power to regulate interstate commerce was almost uniformly linked to the removal of state trade barriers, and when the Constitution was sent to the state conventions, fostering free trade among the States was prominently cited as a reason for ratification. (cites omitted)

The parties agreed that a two-year durational residence requirement violated the dormant Commerce Clause concept if it imposed a similar residency requirement on retailers who wanted to sell something else, such as paint or milk, because it would be discriminating against out-of-state residents.  Therefore, the question was whether the 21st Amendment “saves” laws like Tennessee’s.

Section 2 of the  21stAmendment allows each State leeway to enact measures to address the public health and safety effects of alcohol use and other legitimate interests but it does not license the States to adopt protectionist measures with no demonstrable connection to those interests

Alito concluded, that the two-year duration residential requirement “expressly discriminates against nonresidents and has at best a highly attenuated relationship to public health or safety.”  The retailers had tried to defend the requirement by arguing that it guaranteed that retailers selling liquor in Tennessee could be sued in state court. But  Justice Alito noted that can easily be achieved by requiring a retailer who isn’t a state resident to agree to be sued there.  All states have authority under Section 2 of the 21stAmendment but that authority is generally limited to health and safety.  The Association was not able to show any  reasonable connection to health and safety in order to justify the residential requirement.   The two-year durational residential residency requirement clearly discriminated against  out of state sellers to the benefit of in-state sellers.  Under the dormant Commerce Clause cases, a state law that discriminates against out-of-state goods or nonresident economic actors can be sustained only on a showing that it is narrowly tailored to “advanc[e] a legitimate local purpose.”  In this case, the provision was not narrowly drawn and their were other alternates to achieve the objectives of the state.

The Court found that  the durational residential requirement of two years was unconstitutional under the dormant commerce clause.  Tennessee  Wine and Spirits Retailers  Association v. Thomas(USSC 18-96, 06/26/19).

Comment Howard:  I thought that the historical analysis of the dormant Commerce Clause  concept was world class.  While the dormant commerce clause is not a regular issue in our local  governmental law practice  on occasion it does surface.  The first time, I encountered it was when the City of Springfield was dealing with flow control for solid waste in order to fund a solid waste disposal facility or landfill.  This case could affect  Sarasota Wine Market v. Parson, (No. 4:17CV2792) pending in the Missouri courts involving a Missouri law that permits in-state retailers to sell directly to consumer’s homes that withholds the same privilege for out-of-state retailers.  This case also raised, in my mind, the question of other  durational residential  requirements, which are a much  more common issue for local government attorneys, leading  me to an  article published in the Legal Information Institute, discussing Durational Residential Requirements which can be accessed by clicking here. https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/durational-residency-requirements

What Constitutes a Seizure?
Facts and Procedure: Dorian Johnson’s complaint alleged that he and Michael Brown, Jr. were “peacefully and lawfully” walking down Canfield Drive in Ferguson, Missouri, at approximately 12:00 p.m. on August 9, 2014, when they were approached by Officer Darren Wilson in his marked police vehicle.  As he approached the pair, Wilson slowed his vehicle and ordered them to “Get the f*ck on the sidewalk.”  Wilson continued to drive his vehicle several more yards, then abruptly put the vehicle in reverse and parked it at an angle so as to block the pair’s path.  After stopping his vehicle just inches from Brown, Wilson forcefully opened his door, striking Brown.  Wilson reached through his window, grabbed Brown, and threatened to shoot his weapon.  As Brown struggled to break free, Wilson discharged his weapon twice, striking Brown in the arm.  Both Brown and Johnson ran away from Wilson, who at no time ordered either of them to “stop” or “freeze,” but rather fired his weapon at the two men, with several of the shots striking and killing Brown.

Johnson  sued  the City of Ferguson, Thomas Jackson, the police chief,  based on supervisory liability, and  Officer Darren Wilson in  district court claiming a violation of his rights under Section 1983,  claiming that there was an unlawful  seizure and use of excessive force by Officer Wilson.  The defendant’s filed a motion to dismiss, which  was not granted.  The  defendant’s appealed to the Eighth Circuit on the question of qualified immunity for Officer Wilson.  The full Eighth Circuit decided to hear the appeal  En banc.

Analysis: The  Court noted that the  governing issue in this case was whether or not there was a seizure.  The Court reasoned that the facts in this case showed that neither Johnson nor Brown were ordered to stop and to remain in place.  Johnson’s decision to remain by Brown’s side during Brown’s altercation with Wilson, rather than complying with Wilson’s lawful command to return to the sidewalk, was that of his own choosing. That he was able to leave the scene following the discharge of Wilson’s weapon gives the lie to his argument that the placement of Wilson’s vehicle prevented him from doing so.  Wilson’s police vehicle constituted no barrier to Johnson’s ability to cross to the sidewalk.  Any physical or weapon-related contact by Wilson was directed towards Brown alone in the first instance. “In a word, then, because Johnson himself was neither physically restrained nor prevented from proceeding to the sidewalk in compliance with Wilson’s directive rather than fleeing as he did.”

The opinion goes on to state, that the cases provide that there can be no seizure without actual submission.  Because there was no verbal or physical impediment to Johnson’s freedom of movement, there was no submission to authority on his part. Since there was no seizure or use of excessive force with respect to Johnson, Officer Wilson was entitled to qualified immunity as a matter of law.

With respect to the supervisory liability  of the police chief, no liability attaches to a supervisor merely because a subordinate violated someone’s constitutional rights. With respect to the City, as a general rule,  in order for liability to attach, there must  individual liability on the underlining  substantive claim, which did not occur in this case.  Dorian Johnson v.  City of Ferguson,  (8th Cir., 16–1697, 06/17/19)

Comment  Howard:The Eighth Circuit, en banc opinion was split with a pretty strong dissent in this case.  The dissent made a pretty telling point by noting that the police officer discharged his weapon firing in the direction of both Michael Brown and Dorian Johnson noting that if Brown was seized so Johnson.  If one was  seized both were  seized.  I thought that the question of seizure was very close suggesting to me that this will be a good case to tease out the differences if you were faced with similar facts.

Platte County Does Not  Owe  For Garage Bonds
Platte  County issued bonds payable from a 1% sales tax in the Zona Rosa District  connected to a Kansas City area shopping district.  The revenues from the 1% sales tax were not sufficient to make bond payments; therefore,  the trustee, UMB Bank threatened to sue the County for the deficiency,  which amounted to $765,000 currently due with long-term liability as much as $40 million.  UMB argued that  Platte County had agreed to pay for any shortfalls.  Platte County filed a declaratory judgment to determine if it had any liability with respect to the bonds.

The Circuit Court ruled that the County did not have any liability because all it was obligated to do was to include a potential payment in the proposed annual budget.  The trial judge also ruled that the  Missouri Constitution would have required voter approval of the bonds over to do what UMB requested.  See Platte County v. UMB Bank, 18AE-CC00379.

One Sign and One Flag Ordinance Of Bel-Nor Was Unconstitutional Because It Regulated Content And Did Not Meet The Strict Scrutiny Test

Facts and Procedure: Willson has three stake-mounted, freestanding signs in the front yard of his residence in Bel-Nor, Missouri.  He has displayed “Clinton Kaine” and “Jason Kander U.S. Senate” signs since 2016, and a “Black Lives Matter” sign since 2014.  In December 2017, he received an information and summons charging him with violating Bel-Nor Ordinance 983.

Months earlier, the Bel-Nor Board of Alderman passed Ordinance 983.  The Ordinance permits “each improved parcel” of private property “to post one stake-mounted and self-supporting freestanding sign” and “Not more than one (1) flag.” It includes several requirements for the size, placement, and features of permissible signs and flags.

Willson sought preliminary injunctive relief, in  federal district court arguing Ordinance 983 is content based, vague, and overbroad in violation of the First Amendment’s Free Speech Clause.  The district court denied the motion holding that Willson was unlikely to succeed on the merits of his First Amendment challenge.  It found Ordinance 983 content-neutral and narrowly-tailored that addressed Bel-Nor’s significant interests in aesthetics and traffic safety, rejecting Willson’s overbreadth challenge.  Willson appealed to the Eighth Circuit.

Analysis: Standing – First, the Court considered the question of whether or not Willson had standing to bring the lawsuit.  The district court denied standing because there was no evidence that Willson displayed a flag.  The Eighth Circuit held that the district court erred because an integral part of Willson’s argument involved the definitional sections, which provide the basic structure for the terms used in the violated sections showing that the Ordinance was content based.  When Bel-Nor charged Willson with violating Ordinance 983 it acknowledged his signs did not fit the flag exception; therefore, the court could  take into account how other provisions like the definition of flag affected the constitutionality of those provisions, giving Willson standing to argue that the ordinance was content based.

Content Based: The Court’s analysis begins with a statement of what constitutes a content based law, citing Gilbert. “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”

Next,  the Court examines the definitions in the Ordinance demonstrating that the definition of sign and a flag  make the ordinance content based bringing it under the scrutiny of Gilbertand the First Amendment.

Under the Ordinance, each improved parcel may have up to one stake-mounted, freestanding sign.

A sign is: Any poster, object, devise [sic], or display, situated outdoors, which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business, product, service, event, idea, belief or location by any means, including but not limited to words, letters, figures, designs, symbols, colors, logos, fixtures, cartoons or images.

In addition to one sign, the Ordinance allows each improved parcel“[n]ot more than one (1) flag.

A flag includes: any fabric or bunting containing distinctive colors, patterns or symbols used as a symbol of a government or institution.

Under this section of the Ordinance, flags shall not be considered signs. These definitions set the stage for the Court to pick  apart Ordinance 983.

For example, applying the ordinary meaning of “government or institution,” a fabric with a cardinal logo is a way “sign,” while a fabric with an Army logo is a “flag.”  This inquiry is content-based because whether a fabric is a sign or a flag, and whether it is prohibited by the Ordinance, depends on the “the topic discussed or the idea or message expressed.”

Bel-Nor argued that Ordinance  983 was content neutral.  The Court found it difficult to imagine a message omitted by the Ordinances definition of a flag as “a symbol of a government or institution.  The Court concluded that Ordinance 983 “draws distinctions based on the message a speaker conveys;”  therefore, the Ordinance must satisfy strict scrutiny.  Bel-Nor must show that the one-sign limit “furthers a compelling governmental interest and is narrowly tailored to that end.”

Bel-Nor  argued that the Ordinance is tailored to meet the city’s aesthetic and traffic concerns.  The Court recognizes that while these interests  are significant they are not compelling.  Furthermore, Bel-Nor failed to show the factual situation demonstrated a real need to protect its interest.  The Ordinance was not narrowly tailored because sufficient evidence was not presented to show that it was the least restrictive means to further the stated interest.

In addition, the Ordinance was overly broad by  covering a substantial amount of expressive activity.  The Ordinance’s  expansive definition of a sign combined with its strict only one sign and one flag to the exclusion of everything else  prohibited a substantial amount of expressive conduct.  For example, the Ordinance prohibited tacking up a welcome home banner on the garage, sticking an ADT  security sticker on  the inside of a front window pane,  and displaying Christmas lights; therefore,  the Ordinance was overly broad and unconstitutional.

In addition,  the severe restrictions  did not leave ample alternative channels for communications of information.  Residential signs have  long been considered to be important and distinctive means of expression, which this Ordinance  prohibits.  The Ordinance did not make the test for strict scrutiny.  Willson v. City of Bel-Nor, (8thCir.,  18-1753, 05/20/19)

Comment Howard: At first blush  my reaction to the Ordinance was that a one sign and one flag did not regulate content.  Once again, Judge Benton  provides a killer analysis of the problems facing local government attorneys and drafting sign ordinances. (It is really a fool’s errand.).   By unpacking the definitions,  he showed  the ordinance regulated content and miserably failed to meet the test for strict scrutiny.  From my perspective, this opinion was  one of the better opinions I’ve seen discussing limitations established by Gilbert.  It was short, exacting and logical.