Arlington, gun-rights group seek federal court ruling on ordinance

Rather than wait for a jury trial this summer, the city of Arlington and Open Carry Tarrant County asked a federal judge Monday to decide whether an ordinance restricting pedestrians’ action is constitutional.

The ordinance prohibits people from entering traffic to hand out material or solicit donations at intersections controlled by traffic signals. It does not apply to intersections with stop signs, and it also does not prevent pedestrians from interacting with motorists while standing on the curb.

Members of Open Carry Tarrant County, a local gun-rights group, sued the city last year, saying the ordinance violates its their free speech rights by restricting them from handing out literature to motorists.

Arlington officials say the law is designed to improve public safety. The ordinance is identical to one in another Texas city that has already been reviewed and found to be constitutional by the 5th U.S. Circuit Court of Appeals, Assistant City Attorney Robert Fugate said Monday.

Earlier this year, U.S. District Judge Reed O’Connor lifted a preliminary injunction he issued in July blocking Arlington from enforcing the ordinance. He also dismissed part of Open Carry Tarrant County’s lawsuit because no one has received a citation under the newest version of the ordinance, adopted by the City Council in October but never enforced.

“Even after that, we’ve chosen not to enforce the ordinance until we get a court ruling because we want to make sure we are doing the right thing and are on solid ground,” Fugate said.

The question of constitutionality remains to be answered, said Warren Norred, Open Carry’s attorney.

“I have confidence the court will either find for us or it will set it up so we can go to the 5th Circuit Court and fight it out all the way there,” Norred said.

Instead of creating a misdemeanor violation that restricts people’s First Amendment rights, the city could be using an existing state law that is designed to prevent people from obstructing traffic, Norred said.

“The city has never employed the state’s obstruction law,” he said. “It’s hard for me to believe they really need this law when they haven’t tried the law that is designed for this purpose.”

Norred said the ordinance isn’t fair because Arlington firefighters are still allowed to stand in intersections and walk into the street to solicit charitable donations.

Fugate said firefighters are allowed to do so under state law and must meet several requirements, including carrying $1 million in insurance for accidents.

“It’s unsafe for people to be in the intersection,” Fugate said. “The city didn’t create the exception that allows firefighters to be in the intersections. It’s not a city regulation.”

A trial on the issue is currently set for July 27.

This story was originally published March 30, 2015 at 4:37 PM with the headline "Arlington, gun-rights group seek federal court ruling on ordinance."