Filed April 3, 2007. Opinion by Judge Peter B. Krauser.
On appeal from the grant of Hagerstown's motion for summary judgment in a case involving a challenge to Hagerstown's Adult Businesses Ordinance, the Court AFFIRMED the decision below.
Appellant ("104") owns and operates Hagerstown's only "adult" establishment, selling books, magazines, videos, lingerie and novelties and providing booths for customers to view adult videos. Reports of drug and sexual activities prompted the police and health departments to take action against the facility, and in 2002 the Mayor and City Council of Hagerstown passed an Adult Business Ordinance (the "ABO"), to regulate the time, place and manner in which Hagerstown's adult businesses could operate.
In 2003, 104 filed a complaint against Hagerstown and its police chief, seeking declaratory and injunctive relief. After a brief removal to the United States District Court, the case was heard by the Circuit Court for Washington County. Several amendments were made to the ABO during the pendency of the case to conform with developing case law, and the trial court eventually granted Hagerstown's motion for summary judgment.
On appeal, 104 claimed the ABO violated the First Amendment to the federal constitution, and Article 40 of the Maryland Declaration of Rights, arguing that the ABO was not "narrowly tailored to serve a significant government function", since there was no "pre-enactment evidence" in the legislative record, and thus the supplemental materials submitted in support cannot sustain the regulation.
The Court, in applying the Renton test, found neither the federal nor the state constitutions require pre-enaction evidence, and that indications of the "negative secondary effects" were before the legislators when the ABO was being enacted. Further, the Court noted that there is no constitutional requirement that the least restrictive means be employed in addressing the problem and 104's objections to the form and timing of certain affidavits submitted to the trial judge in support of Hagerstown's summary judgment motion were found to not be well grounded.
The Court also found little merit in 104's argument that, because the ABO does not contain provisions allowing for judicial review, it constitutes an unconstitutional prior restraint on free speech, since the issue was not raised below, and in any event, ordinary judicial review would be adequate in this case. Finally, the Court found that the ABO did not permit arbitrarily withholding a license, but only for the violation of the statute.
The opinion is available in PDF format.
Showing posts with label 1st Amendment. Show all posts
Showing posts with label 1st Amendment. Show all posts
Tuesday, April 3, 2007
Tuesday, February 6, 2007
Andrew v. Clark (Maryland U.S.D.C.)(Approved for Publication)
Issued February 5, 2007 -- Opinion of Judge Andre M. Davis. Approved for publication.
Plaintiff served as a Major in the Baltimore City Police Department (BCPD) and was the Commanding Officer of the Eastern District of the BCPD at times relevant. After a barricade incident, Plaintiff prepared and distributed to his chain of command an "internal memorandum" criticizing the BCPD's handling of that incident. Receiving no response from his chain of command, Plaintiff released a copy of the internal memorandum to a Baltimore Sun reporter. Internal Affairs investigated the release and Plaintiff was subsequently fired.
Plaintiff filed and subsequently moved to amend a complaint in U.S. District Court alleging multiple state and federal counts against then Police Commissioner Kevin Clark and other parties. The complaint as amended alleged inter alia that Defendants' firing of Plaintiff:
1. violated the procedural due process requirements under the 14th Amendment of the Constitution and 14 U.S. Sec. 1983 of the United States Code, as amended, due to the defendants' failure to provide either:
a. an adjudicatory hearing; or
b. a demotion to a civil service position at which a hearing would ostensibly apply under the Maryland Law Enforcement Officer's Bill of Rights ("LEOBR"); and further
2. violated Plaintiff's right to freedom of speech with respect to the preparation and release of the internal memorandum.
Defendants moved under Rule 12(b)(6) to dismiss all federal counts from the complaint.
The U.S. District Court held that Plaintiff acted in his capacity as a agent of the BCPD in preparing and distributing the internal memorandum, and accordingly had no such protected freedom of speech rights in that professional capacity under the First Amendment as would trump the BCPD's power to discipline or fire an employee. It held further that Defendant had not violated any of Plaintiff's procedural due process rights, as Plaintiff had no "property' right in his as an at-will employee under Maryland law, and thus no federal constitutional provision protected him from the deprivation of that "property". The Court also held that while state law may entertain a right of Plaintiff to be demoted to a protected, civil service rank as an intermediate discipline in lieu of termination, no constitutional principles commanded such a right.
Accordingly, the U.S District Court dismissed under Rule 12(b)(6) all federal claims in the complaint with prejudice and all non-diversity of citizenship state law claims without prejudice.
The Memorandum Opinion may be read here in PDF.
Plaintiff served as a Major in the Baltimore City Police Department (BCPD) and was the Commanding Officer of the Eastern District of the BCPD at times relevant. After a barricade incident, Plaintiff prepared and distributed to his chain of command an "internal memorandum" criticizing the BCPD's handling of that incident. Receiving no response from his chain of command, Plaintiff released a copy of the internal memorandum to a Baltimore Sun reporter. Internal Affairs investigated the release and Plaintiff was subsequently fired.
Plaintiff filed and subsequently moved to amend a complaint in U.S. District Court alleging multiple state and federal counts against then Police Commissioner Kevin Clark and other parties. The complaint as amended alleged inter alia that Defendants' firing of Plaintiff:
1. violated the procedural due process requirements under the 14th Amendment of the Constitution and 14 U.S. Sec. 1983 of the United States Code, as amended, due to the defendants' failure to provide either:
a. an adjudicatory hearing; or
b. a demotion to a civil service position at which a hearing would ostensibly apply under the Maryland Law Enforcement Officer's Bill of Rights ("LEOBR"); and further
2. violated Plaintiff's right to freedom of speech with respect to the preparation and release of the internal memorandum.
Defendants moved under Rule 12(b)(6) to dismiss all federal counts from the complaint.
The U.S. District Court held that Plaintiff acted in his capacity as a agent of the BCPD in preparing and distributing the internal memorandum, and accordingly had no such protected freedom of speech rights in that professional capacity under the First Amendment as would trump the BCPD's power to discipline or fire an employee. It held further that Defendant had not violated any of Plaintiff's procedural due process rights, as Plaintiff had no "property' right in his as an at-will employee under Maryland law, and thus no federal constitutional provision protected him from the deprivation of that "property". The Court also held that while state law may entertain a right of Plaintiff to be demoted to a protected, civil service rank as an intermediate discipline in lieu of termination, no constitutional principles commanded such a right.
Accordingly, the U.S District Court dismissed under Rule 12(b)(6) all federal claims in the complaint with prejudice and all non-diversity of citizenship state law claims without prejudice.
The Memorandum Opinion may be read here in PDF.
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