A federal judge on Thursday dismissed part of a suit filed against the city of Arlington last year by gun rights activists who believe an ordinance violates their free speech rights by restricting them from handing out literature to motorists.
U.S. District Judge Reed O’Connor also lifted a preliminary injunction he issued in July that blocked Arlington from enforcing its ordinance, which was amended after Open Carry Tarrant County and the group’s coordinator, Kory Watkins, filed suit.
Part of the suit was dismissed because no one has received a citation under the newest version of the ordinance, adopted by the City Council in October but never enforced by the city.
“When we amended the ordinance, the injunction was still in place. It couldn’t have been enforced against anybody because there was an injunction against it and the city is not going to go against a court order,” Assistant City Attorney Robert Fugate said Thursday.
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O’Connor dismissed that part of the suit without prejudice, meaning the gun-rights group can file again if the city begins issuing citations.
While “an unconstitutionality issue may arise in the future,” O’Connor wrote, there is no evidence that the current version of the sidewalk ordinance will be “imminently enforced in an unconstitutional matter.”
Fugate said city officials have not discussed whether to begin enforcement now that the injunction is lifted.
The judge’s decisions don’t answer the suit’s question of whether Arlington’s ordinance is constitutional. A trial on the suit is set for the summer.
Open Carry Tarrant County hasn’t decided what action it will take in response to O’Connor’s decision, said attorney Warren Norred, who is representing Watkins and the group.
“We have to decide if we are going to test the law or put up with the law the way it is until it is resolved, or we can say ‘This is good enough,’ and we’ll call it day,” Norred said. “It’s not been decided yet.”
The ordinance prohibits people from stepping into the street 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.
City officials have consistently said the ordinance is about safety for motorists and pedestrians.
“The city has to walk a tightrope. On one side, the city has to make sure it is protecting public safety. On the other side, the city has to make sure and wants to make sure that it’s protecting everyone’s First Amendment rights,” Fugate said. “The current ordinance was designed to protect both things.”
Arlington’s original ordinance, before it was amended twice last year, 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.
Open Carry Tarrant County began threatening legal action against the city after two of its members were cited for violating that ordinance during an open carry walk near AT&T Stadium.
In May, the 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.
Watkins and Open Carry Tarrant County quickly filed suit against the city, saying that the threat of being issued a citation for handing out educational literature or pocket-sized copies of the U.S. Constitution to Arlington motorists had create a “chilling effect” on its members’ willingness to participate.
City officials, however, said the ordinance was not designed to punish Open Carry supporters, who regularly conduct their walks along busy streets with rifles slung over their shoulder or black powder pistols holstered on their sides.
In July, O’Connor issued a preliminary injunction that blocked Arlington from enforcing the version that the council had approved in May, saying the ordinance went too far in restricting free speech rights.
Open Carry Tarrant County still disagrees with the ordinance as amended by the council in October, Norred said.
“It is not laughably unconstitutional like the last one was. The city just wants to dance right up to the edge. We think they are dancing over the edge,” Norred said.
One issue, Norred said, is that the increasing number of on-street bike lanes across the city will stop pedestrians from interacting with motorists because they won’t be able to reach vehicles from the curb.
“The Supreme Court is continuously concerned with free speech buffer zones,” Norred said. “Bike lanes turn into free speech buffer zones. You have to be able to reach across a 6-foot bike lane to reach the passenger side. That means you can’t hand out literature to anyone on that side.”
Norred said that Open Carry members handing out literature generally wear traffic safety vests and that they have never been involved in an accident with motorists during the dozens of walks it has held in the city since 2013.
If Open Carry members were disrupting traffic and creating dangerous conditions, Arlington police could issue citations under state law for obstructing traffic, something Norred said hasn’t happened.
“If they were doing something that was causing danger, the city has that tool,” Norred said. “But they want to ban under all circumstances, no matter how little traffic there is, the ability of an Open Carry participant to hand out a Constitution to a motorist in the inside lane.”
This report includes material from Star-Telegram archives.
Susan Schrock, 817-390-7639