(CN) — The city of St. Louis did not violate the First Amendment rights of a Christian pastor and his assistant by threatening to prosecute them for handing out bologna sandwiches to the homeless, a federal appeals court ruled Wednesday.
Pastor Raymond Redlich, vice president of the New Life Christian Evangelical Center, and his assistant, Christopher Ohnimus, were distributing bologna sandwiches and bottles of water to the homeless in October 2018 when they were cited by a police officer for violating a city ordinance regulating the distribution by temporary establishments of potentially hazardous food, such as meat, poultry, eggs or fish.
Although the city opted not to prosecute Redlich and Ohnimus for violating the ordinance, they nonetheless sued the city in federal court saying the ordinance violates their rights of free expression and religious exercise under the First Amendment.
U.S. Magistrate Judge Nanette A. Baker in St. Louis granted the city’s motion to dismiss the complaint on summary judgment last year, finding Redlich and Ohnimus did not prove that their fundamental right to association was at issue.
The two men appealed that ruling to the St. Louis-based Eighth Circuit, arguing at a hearing in June that the enforcement of the ordinance against them interferes with their ability to communicate their message about God’s love and concern for those in need.
In Wednesday’s ruling, a three-judge panel ruled government regulation of “inherently expressive” conduct – such as distributing sandwiches to the homeless – does not necessarily violate the First Amendment if the regulation furthers “an important or substantial government interest” unrelated to the suppression of free expression.
“It is an imminently reasonable proposition that a municipality has a substantial interest in preventing the spread of illness or disease among its citizens, including its homeless population,” the ruling states. “The City introduced evidence that it has traced incidents of illness among its homeless population to illegally distributed food dating back to 2012.”
The opinion was written by U.S. District Judge Kate Menendez, a Joe Biden appointee sitting by designation from the District of Minnesota. She was joined on the unanimous panel by U.S. Circuit Judges James Loken and Jane Kelly, appointed by George H. W. Bush and Barack Obama, respectively.
The ordinance under which the two men were cited required that those distributing potentially hazardous foods obtain a temporary daily $50 food permit and have a hand-washing station and equipment for washing utensils. The ordinance has since been amended, but the trial court found the men’s claims were not moot because there remained a credible threat of future enforcement.
David Roland, litigation director for the Freedom Center of Missouri, which represented Redlich and Ohnimus, told Courthouse News on Wednesday the duo will seek a rehearing before the panel and, if necessary, before the full Eighth Circuit.
“We will seek to continue to vindicate their rights,” Roland said.
“We think the court made a couple of significant errors,” he added, including what he said was the panel’s failure to view the facts of the case most favorably for the plaintiff-appellants.
“The ruling below was flimsy, to say the least,” Roland said. Also, while the Eighth Circuit panel weighed the decision using intermediate scrutiny, he said that “still put quite a burden on the government” to justify regulations that encroach on free speech.
A spokesman for the city of St. Louis did not immediately respond to a request for comment Wednesday.
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