July 14, 2014

Federal judge overturns Arlington ordinance

Open Carry Tarrant County contended its First Amendment rights were being violated by the ordinance.

A gun-rights group won a victory in court Monday when a federal judge issued a preliminary injunction blocking Arlington from enforcing an ordinance banning pedestrians from handing out materials to motorists on high-traffic streets.

Open Carry Tarrant County and its local coordinator, Kory Watkins, filed a lawsuit against Arlington in May, claiming that the city’s sidewalk ordinance violates the group’s First Amendment rights of free speech after they say they were unfairly prevented from handing out literature and pocket-sized copies of the U.S. Constitution during demonstrations along some busy streets.

U.S. District Judge Reed O’Connor agreed in issuing his restraining order Monday blocking the ordinance, saying that what was adopted by the Arlington City Council earlier this year goes too far in restricting free speech rights.

“Arlington has failed to provide any evidence that their ordinance is narrowly tailored to serve the city’s interests in pedestrian and traffic safety,” O’Connor wrote. “Arlington also has a number of less restrictive means of achieving its stated goals.”

Watkins praised the judge’s ruling, calling it “a win for freedom.”

“I’m glad it happened and that he saw eye-to-eye with us and that we went about the process in the right way,” Watkins said. “Now everything is good to go.”

Attorneys for the city did not return emails from the Star-Telegram on Monday seeking comment, but they have said previously that the ordinance, originally adopted in 1994 and amended in May, is designed to protect pedestrians and motorists and has nothing to do with the gun-rights group’s message.

“Open Carry cannot demonstrate that its speech rights trump public safety on high traffic roadways,” the city stated in a previous response to the group’s lawsuit. “Arlington does not have to wait until someone is injured or killed before enacting an ordinance.”

Open Carry Tarrant County raised concerns about the constitutionality of Arlington’s ordinance even before two of its members were cited for handing out pamphlets and copies of the Constitution during a demonstration at Collins Street and Road to Six Flags near the Lincoln Square shopping center.

With AR-15s, Mossberg 20-gauge shotguns and modified AK-47s slung over their shoulders, the group’s members often stand along street corners while handing out literature advocating for less restrictive gun laws. The city has said people were uncomfortable with their conduct.

The original ordinance banned pedestrians from standing on sidewalks, medians and other public rights of way anywhere in the city to distribute literature to motorists who were not legally parked.

On May 13, partially in response to expected litigation, the Arlington City Council voted to make the ordinance less restrictive, prohibiting people from handing out literature or objects only at specified busy intersections and roads where pedestrians are already banned from selling merchandise or seeking rides or charitable contributions from motorists.

Collins Street and the Road to Six Flags in the entertainment district — where the Open Carry group has demonstrated several times — is one of the 124 identified intersections where such activity was not permitted within 500 feet.

Other prohibited areas included large stretches of eight streets — including Abram, Collins, Cooper and Division streets — and sections of 16 streets in the entertainment district, including Convention Center Drive near Globe Life Park in Arlington, during major events.

The city argued that the ordinance was intended to prohibit dangerous activity of solicitors entering busy traffic intersections and demonstrated that the it was passed in response to vendors in nearby cities being seriously injured at busy intersections, court records state.

“A chilling effect”

But in its lawsuit, Open Carry said the new rule “has caused a chilling effect on members of Open Carry’s willingness to participate as they had in the past, as no one wants to be harassed and threatened with time in jail for doing nothing more than handing out the United States Constitution to those who have stated that they wish to receive it.”

The group also argued that the timing of the ordinance — which the city had previously rarely enforced — was adopted to curtail their activities. It said other groups, including Arlington firefighters seeking donations for charity, often entered the street without being sanctioned.

“I think it begs credulity that this wasn’t aimed at Open Carry,” said Warren Norred, the attorney representing Open Carry. “It was a direct result of Open Carry.”

City attorneys repeatedly denied that claim. But in a footnote in the opinion, O’Connor points out that when Watkins was testifying in a hearing much of Arlington’s cross-examination focused on the presence of guns at their events and their interactions with police.

“The fact that plaintiff’s tactics or message may cause some people to be uncomfortable is not a proper motivation for limiting” free speech rights, he wrote.

Lack of evidence

In his 26-page ruling, O’Connor said he expects that Open Carry is likely to prevail on their First Amendment speech claims as the lawsuit goes forward, which is why he granted the preliminary injunction.

The judge said that the U.S. Supreme Court has held that ‘handing out leaflets in the advocacy of a politically controversial viewpoint … is the essence of First Amendment expression’ and that ‘no form of speech in entitled to greater constitutional protection.’ ”

He wrote that the plaintiffs attempts to distribute copies of the Constitution and gun-rights literature on Arlington’s streets and sidewalks is “precisely the kind of speech in precisely the kind of place that the First Amendment aims to protect most.’’

O’Connor said the city of Arlington has a “strong interest” in pedestrian and traffic safety, but that it must do more than recite a significant government interest even when talking about public health and safety concerns.

Susan Schrock contributed to this report, which includes material from the Star-Telegram archives.

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