Judge OK’s City’s Revised Ban on Leaflets at Intersections

     FORT WORTH (CN) – A Texas open-carry group and a Dallas suburb are both claiming victory as a federal judge upheld the city’s revised ordinance banning the distribution of literature in roadways.
     Open Carry Tarrant County sued the city in May 2014 in Fort Worth Federal Court, challenging a ban on handing out literature to motorists at streets with significant traffic. The ban imposed a fine of $500 per citation.
     The group holds “group walks” where members hand out pocket-sized copies of the Constitution to passersby and motorists while carrying rifles and other guns. Members caught the attention of city officials when they began holding walks in the city’s entertainment district, which includes AT&T Stadium and Globe Life Park in Arlington – the homes of the Dallas Cowboys and Texas Rangers – and the Six Flags Over Texas amusement park.
     In spite of the city council’s expressed safety concerns in enacting the ordinance, U.S. District Judge Reed O’Connor struck the ordinance down as unconstitutional and overreaching in July 2014.
     Three months later, the city council approved revisions that made the ordinance less speech-restrictive by allowing distribution of literature at any roadway as long as people stay out of the street.
     O’Connor ruled Wednesday the revised ordinance is constitutional and granted the city’s motion for summary judgement. He concluded the changes made the ordinance “narrowly tailored” to the city’s interest in public safety.
     “Given the evidence of ongoing driver-pedestrian accidents, the court concludes that the ordinance that on its face prohibits individuals from distributing literature in roadways only at traffic light-controled intersections is a narrowly tailored means to advance Arlington’s significant interest in public safety,” the 18-page opinion stated. “Ultimately, Section 15.02 does not completely ban the distribution of literature, but rather limits the places and manner by which literature may be distributed. Thus, individuals have ample alternative channels of communication.”
     However, O’Connor awarded Open Carry Tarrant County actual damages and attorneys’ fees as a prevailing party regarding the original ordinance.
     “Although plaintiffs are not entitled to prospective relief, the court finds that plaintiffs are entitled to past actual damages based upon the previously repealed provision,” O’Connor wrote. “Accordingly, the court awards plaintiffs past damages prior to the injunction.”
     On the issue of attorney fees, O’Connor wrote, “Here, plaintiffs successfully sought to have the enforcement of the now-repealed version of Section 15.02 enjoined. The court unequivocally found that plaintiffs demonstrated a substantial likelihood of success on the merits when it granted plaintiffs’ motion for a preliminary injunction.”
     The group’s attorney, Warren V. Norred in Arlington, said his client has yet to decide if it will fight the new ordinance. He told The Dallas Morning News that Open Carry Tarrant County will “stand down till law is applied, and then we’ll have a new case.”
     “For all the attorneys, it’s like: ‘Really, can’t we resolve it?’ But the court can’t rule on something that hasn’t happened yet,” he said, adding that the revised ordinance itself does not discriminate.
     “However, if you look at how the city will enforce it – that is, they will give firefighters exemption – the case is being set up as an as-applied challenge,” he said. “It’s like approving the use of a public park for religious ceremonies, but in practice you only approve those religions you like. It looks like a neutral law, but when you look at its application it’s not.”
     Assistant City Attorney Robert Fugtate said the judge “made it clear we need to go back to the drawing board” in striking down the original ordinance.
     “It looks like the judge has agreed the revised ordinance met that goal,” Fugtate said Wednesday. “In Arlington, we want everyone to be able to exercise free speech, and now you can do that at every intersection except those with traffic lights, where you can’t get into the roadway.”
     Open Carry Tarrant County made headlines in January when a video of its members harshly confronting state lawmakers in their Capitol offices over open-carry legislation went viral. The confrontation resulted in lawmakers quickly approving a measure to install panic buttons in their offices and request assistance from Department of Public Safety officers.
     In December 2014, a purported Open Carry Tarrant County supporter was arrested for allegedly shooting her husband and stepdaughter to death in a domestic dispute in south Arlington.

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