Reyes v. City of Lynchburg

Filed: August 16, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 98-2583(L)
(CA-98-9-L)

John Daniel Reyes,

Plaintiff - Appellant,

versus

City of Lynchburg,

Defendant - Appellee.

O R D E R

The court amends its opinion filed August 6, 2002, as follows:

On page 2, section 5, lines 3 and 6 -- the firm name of

“ALEXANDER BELL, P.L.C.,” is added after attorneys Alexander Wayne

Bell and Mary V. Barney.

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN DANIEL REYES,
Plaintiff-Appellant,

and

KEITH TUCCI,
Plaintiff,

v.

CITY OF LYNCHBURG, No. 98-2583
Defendant-Appellee,

and

WILLIAM G. PETTY, in his official
capacity as Commonwealth
Attorney for the City of Lynchburg,
Virginia,
Defendant.

JOHN DANIEL REYES; KEITH TUCCI,
Plaintiffs-Appellees,

v.

CITY OF LYNCHBURG,
Defendant-Appellant, No. 98-2690
and

WILLIAM G. PETTY, in his official
capacity as Commonwealth
Attorney for the City of Lynchburg,
Virginia,
Defendant.
Appeals from the United States District Court

for the Western District of Virginia, at Lynchburg.

Norman K. Moon, District Judge.

(CA-98-9-L)

Argued: December 2, 1999

Decided: August 6, 2002

Before WIDENER and MICHAEL, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

____________________________________________________________

Affirmed by published opinion. Judge Widener wrote the majority
opinion, in which Senior Judge Hamilton concurred. Judge Michael
wrote a dissenting opinion.

____________________________________________________________

COUNSEL

ARGUED: Stephen Melvin Crampton, AMERICAN FAMILY
ASSOCIATION LAW CENTER, Tupelo, Mississippi, for Appellant.
Alexander Wayne Bell, ALEXANDER BELL, P.L.C., Lynchburg, Virginia, for Appellee. ON
BRIEF: Brian Fahling, Michael J. DePrimo, AMERICAN FAMILY
ASSOCIATION LAW CENTER, Tupelo, Mississippi, for Appellant.
Mary V. Barney, ALEXANDER BELL, P.L.C., Lynchburg, Virginia, for Appellee.

____________________________________________________________

OPINION

WIDENER, Circuit Judge:

Plaintiff John D. Reyes appeals the district court's grant of sum-
mary judgment to the City of Lynchburg ("the City") on Reyes's 42
U.S.C. § 1983 claim. Reyes sought nominal damages under § 1983,
an injunction against future enforcement of the City's parade ordi-
nance, and a declaration that the City's parade ordinance was uncon-
stitutional on its face and as applied to him. The district court found

2
the City's parade ordinance defective because it did not provide one
adequate procedural safeguard; however, the court held that Reyes
could not sustain a valid claim under § 1983 because the City did not
violate Reyes's constitutionally protected interests. We affirm the
grant of summary judgment to the City.1

I.

On November 10, 1997, Reyes, along with other protesters, held an
anti-abortion protest on and around the grounds of a public high
school in Lynchburg, Virginia. None of the protesters had applied for
or received a parade permit under the City's parade ordinance. A
grand jury indicted Reyes for violating the ordinance, trespassing on
school property and engaging in disorderly conduct. Reyes was found
guilty of trespass only in the Circuit Court of the City of Lynchburg.2

The parade ordinance provided that "[i]t shall be unlawful for any
person to conduct or participate in a parade . . . on the public streets,
sidewalks . . . for which a written permit has not been issued in accor-
dance with the provisions of this article." Lynchburg, Va., Code art.
X, § 25-374.1 (repealed March 10, 1998). On February 27, 1998,
Reyes and Keith Tucci filed a complaint in the district court pursuant
to § 1983 challenging the constitutionality of the parade ordinance on
its face and as applied to Reyes and seeking declaratory relief and an
injunction prohibiting the City from enforcing the parade ordinance
in the future. Reyes and Tucci also alleged that they planned another
protest but feared arrest, criminal and/or civil prosecution and penal-
ties under the parade ordinance and were thereby "deterred and
chilled in the exercise of their fundamental constitutional rights." For
damages, Reyes claimed: "Award to John Reyes nominal damages
. . . ." A.18. On June 24, 1998, the district court found that because
the City repealed the parade ordinance on March 10, 1998, the action
for declaratory relief was moot.3 The court dismissed Tucci as a party
____________________________________________________________
1
The judgment being affirmed, the City's cross-appeal is dismissed as
moot.
2
Reyes challenged the constitutionality of the parade ordinance before
the circuit court, which did not address the issue.
3
Tucci announced his intention to protest at the public high school on
March 13, 1998. Lynchburg's City Attorney told Tucci and Reyes that

3
to the action, but denied the City's motion to dismiss as to Reyes, rea-
soning that Reyes's § 1983 claim for nominal damages created a live
controversy. Tucci is not a party to this appeal.

The parties filed cross-motions for summary judgment. After a
hearing, the district court granted the City's motion. Due to the
court's prior ruling that the case was moot as to future conduct, the
court found that a facial challenge to the parade ordinance was moot
as well. The court entertained Reyes's claim that the parade ordinance
was unconstitutional as applied to him and found that the parade ordi-
nance was defective.4 Despite this finding, the court held that the City
did not violate Reyes's First Amendment rights or his Fourteenth
Amendment due process rights and granted summary judgment to the
City.

We review de novo the district court's grant of summary judgment
to the City, viewing the evidence in the light most favorable to the
nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter
of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Although
we affirm the district court's decision to grant summary judgment to
the City, we do so on different reasoning than relied upon by the dis-
trict court. Securities & Exch. Comm'n v. Chenery Corp., 318 U.S.
80, 88 (1943).

II.

Reyes asserts the following issues in this appeal: 1) the City's
parade ordinance is facially unconstitutional because it lacks adequate
procedural safeguards and is overbroad, 2) the parade ordinance is
unconstitutional as applied to him, and 3) the court erred in relying
upon affidavits of City officials. The City cross appeals the court's
____________________________________________________________

the City and the Commonwealth's Attorney would not enforce the ordi-
nance until the City Council reviewed it. Thereafter, the City repealed
the ordinance altogether. Additionally, the City reassured Reyes and
Tucci that it had no intention of reenacting the parade ordinance.
4
The court found that the parade ordinance did not provide a specific
time frame for the decisionmaker to consider parade permit applications.

4
finding that the parade permit was procedurally defective and asks
this court either to affirm the district court's grant of summary judg-
ment to the City or to dismiss the case as moot.

We first address whether the district court properly refused to
examine Reyes's overbreadth challenge to the parade ordinance upon
determining that the challenge was moot. On June 24, 1998, the court
ruled that the case was moot as to future application of the parade
ordinance because the City had repealed it and promised not to reen-
act a similar one. We agree with the district court that the repealed
parade ordinance cannot now, if it ever did, reach any amount of con-
stitutionally protected conduct.5 The question of overbreadth does not
present a live case or controversy for this court. There is no reason-
able expectation that Lynchburg will reenact the ordinance. See Ari-
zonans for Official English v. Arizona, 520 U.S. 43, 67 (1997), see
also Telco Communications, Inc. v. Carbaugh, 885 F.2d 1225, 1231
(4th Cir. 1989).

We next address Reyes's other assertions about the repealed parade
ordinance and the grounds for his § 1983 action. As an initial matter,
we note that Reyes sought nominal damages from the City under
§ 1983. Nominal damages may be available in a § 1983 case if a
plaintiff was deprived of an absolute right yet did not suffer an actual
injury. See Carey v. Piphus, 435 U.S. 247, 266 (1978) (holding that
the right to procedural due process is absolute making the deprivation
of the right actionable for nominal damages without proof of actual
injury). Reyes claims the City violated his First Amendment right to
free speech and his Fourteenth Amendment due process rights by
applying the parade ordinance, which he asserts was unconstitutional,
against him.6 The district court considered Reyes's challenge to the
____________________________________________________________
5
We also note that facial invalidation of a law for overbreadth is
"strong medicine," Broadrick v. Oklahoma, 413 U.S. 601, 613-14 (1973),
and is generally disfavored unless the law promotes a licensing scheme
giving unbridled discretion to the decisionmaker. FW/PBS, Inc. v. City
of Dallas, 493 U.S. 215, 223 (1990) (plurality opinion) (O'Connor, J.)
& 261 (Scalia, J., concurring in part and dissenting in part).
6
Reyes must be considered to refer to his indictment and prosecution
under the ordinance because he never attempted to apply for a permit as
required under the ordinance.

5
parade ordinance as applied to Reyes and found it did not provide a
specified time for the chief of police to act upon the application for
a parade permit and found the ordinance defective because it did not
provide adequate procedural safeguards. Without such safeguards, the
court determined that the ordinance posed a danger of impermissibly
restraining free speech rights.

The parade ordinance in question provided in pertinent part:

(a) The chief of police, or his designee, shall issue the per-
mit if the proposed parade, assemblage or picketing will not
endanger public health, welfare, or safety, applying the fol-
lowing criteria and finding that:

(1) the time, duration, route and size of the
parade . . . will not unreasonably interrupt the safe
and orderly movement of . . . traffic;

(2) the parade . . . is not of such a nature that it
will require diversion of so great a number of
police or fire personnel to properly police the line
of movement in the areas contiguous thereto so as
to impair the normal protection of the remainder of
the [C]ity;

(3) the applicant has provided for the services of
monitors sufficient to control the orderly conduct
of the parade . . . in conformity with such permit;

(4) the conduct of the parade . . . will not unduly
interfere with the proper fire and police protection
of, or ambulance service to, the remainder of the
[C]ity, or unreasonably disrupt other public ser-
vices and protection normally provided to the
[C]ity; and

(5) the parade . . . will not interfere with another
parade . . . for which a permit has been granted.

6
 (b) If the chief of police, or his designee, disapproves the
application, he shall mail to the applicant a notice of his
action, stating the reasons for his denial of the permit.

(c) Nothing in this article shall permit the chief of police,
or his designee, to deny a permit based upon political,
social, or religious grounds or reasons or based upon the
content of the views expressed.

Lynchburg, Va., Code art. X, § 25-374.3 (repealed March 10, 1998)
(emphasis added).

The other sections of the parade ordinance germane to the analysis
are: any person desiring to conduct a parade must make an application
to the chief of police 48 hours prior to the parade, § 25-374.2(a); the
chief of police has the authority to consider applications filed less
than 48 hours prior to the parade where the applicant shows good
cause, § 25-374.2(c); and an applicant whose permit was disapproved
may appeal to the City Manager within 48 hours, and the City Man-
ager must act on the appeal within five working days after its receipt,
§ 25-374.7.

A city, such as Lynchburg, is justified in setting forth regulations
and ordinances requiring advance parade permits as a traditional exer-
cise of control by the local government. Cox v. New Hampshire, 312
U.S. 569, 574 (1941). These ordinances are generally treated as time,
place, and manner restrictions and are upheld by courts if they are
content neutral, serve a substantial governmental interest, and leave
open alternative avenues of communication. See FW/PBS, Inc., 493
U.S. at 245 (White, J., concurring in part and dissenting in part) (cita-
tions omitted). A court may invalidate a permit scheme if, despite
being content neutral, the scheme vests unbridled discretion in the
decision-maker. See Shuttlesworth v. Birmingham, 394 U.S. 147, 150-
52 (1969) (striking down a content-based parade ordinance). The dis-
trict court found that although the parade ordinance did not give the
chief of police unbridled discretion, it did not contain all of the proce-
dural safeguards required to constitute a permissible prior restraint.
As noted, the court interpreted the ordinance as failing to provide a
specific time frame in which the chief of police, or his designee,
should consider the permit application and found that the lack of such

7
time frame violated the requirement set forth in Freedman v. Mary-
land, 380 U.S. 51, 58-60 (1965),7 and FW/PBS, Inc. See also 11126
Baltimore Blvd. v. Prince George's County, 58 F.3d 988, 996 (4th
Cir.) (en banc), cert. denied, 516 U.S. 1010 (1995).

At this point we emphasize that there is no claim in this case of
content discrimination in the issuance or non-issuance of parade per-
mits. And we emphasize that the ordinance in question, as previously
noted, provides that the chief of police may not "deny a permit based
upon political, social, or religious grounds or reasons or based upon
the contents of the views expressed." So the quite serious question
which confronts the courts in many such cases does not exist here.

Also, no question is made in this case of any burden of proof
required by the City to support the denial of a parade permit, the third
Freedman requirement.

The district court held that the available Virginia procedures for
judicial review of the denial of parade permits complied with the sec-
ond Freedman requirement, that of available expeditious judicial
review. While it is true that in Virginia, under Virginia Code § 15.2-
1404, "[e]very locality may sue or be sued in its own name in relation
to all matters connected with its duties," thus opening the door for liti-
gation in such cases, it is of even more importance that the extraordi-
nary remedy of mandamus is available in such cases as this, both in
the circuit courts, which are courts of general jurisdiction, and also
even in the Supreme Court of Virginia, as a court of original jurisdic-
tion. See Virginia Code §§ 17.1-513 and 17.1-309. See also Burk's
Pleading and Practice (1952) § 199. Mandamus by the highest court
in a State is certainly a plain and efficient remedy, and probably
speedy, for "[i]f no defense is made and the petition states a proper
____________________________________________________________
7
The Supreme Court in Freedman identified three requirements neces-
sary to ensure a prompt decision for permits or licenses for First Amend-
ment activities: 1) any restraint prior to judicial review can be imposed
only for a specified brief period during which status quo must be main-
tained; 2) expeditious judicial review of that decision must be available;
and 3) the censor must bear the burden of going to court to suppress the
speech and must bear the burden of proof once in court. FW/PBS, Inc.,
493 U.S. at 227 (citing Freedman, 380 U.S. at 58-60).

8
case for the writ, a peremptory writ is awarded with costs." Burk's,
p. 325. That the Supreme Court of Virginia does not hesitate to award
the writ in an original proceeding against a local official, even the
Registrar of the South Wise Precinct in Wise County, is demonstrated
in Kennedy v. Skeen, 186 S.E. 926 (Va. 1934).

Although it is likely that the Virginia courts would give relief in
a prompt enough manner to satisfy the Freedman requirement, there
has been no analysis in this case of any time requirements such as was
made in 11126 Baltimore v. Prince George's County Maryland. So
we express no opinion on that question.

For the purposes of our analysis, we will assume, without deciding,
to be correct the decision of the district court, that the ordinance in
question does not sufficiently restrict the time in which the chief of
police must grant or deny a parade permit; and for the purposes of our
analysis, we will also assume, without deciding, that the Freedman
requirement of prompt judicial review has not been complied with.

III.

All of the above leads us to the position that the only question
remaining in the case is whether or not Reyes, under § 1983, may
prosecute a civil cause of action for nominal damages against the City
for his indictment, trial and acquittal under the parade ordinance
which was later held to be unconstitutional.8 We hold that he may not.
____________________________________________________________
8
Included in his §1983 claim, Reyes claims that his First Amendment
right to free speech had been sufficiently chilled to constitute a violation.
Under the facts of this case, we find no merit to this claim. Reyes was
indicted under the assumed unconstitutional parade ordinance three
weeks after the initial protest; he was not arrested, warned, or harassed
on the scene. Ultimately, he was found not-guilty of violating the ordi-
nance. After being found not-guilty, Reyes was informed on March 3,
1998 that the parade ordinance would not be enforced against him in the
future. The ordinance was repealed on March 10, 1998. Reyes asserts
that he planned to attend a March 13 anti-abortion protest, but feared
prosecution, which chilled his speech. The protest occurred without inci-
dent. Under the facts, we find this claim without merit, the ordinance
repealed on March 10th could not chill speech to occur on March 13th.

9
 The position of Reyes is succinctly stated in his brief:

The City enacted and maintained the Ordinance. It remained
exclusively within the City's prerogative to amend or repeal
the Ordinance, and the City chose neither until after Reyes
had been indicted and criminally prosecuted under the Ordi-
nance. Such inaction in the context of a facially unconstitu-
tional Ordinance renders the City liable. Br.26.

We follow the case of Richardson v. City of South Euclid, 904 F.2d
1050 (6th Cir. 1990), cert. denied, 498 U.S. 1032 (1991), a case
essentially on all fours with the case at hand. In that case, Ronnie and
Diva Richardson, husband and wife, moved to South Euclid in May
of 1986. In October, the City of South Euclid passed an ordinance
which made it a misdemeanor to own, operate, or manage a brothel
or to invite or entice another to engage in acts of lewdness or sexual
conduct. In December, 1986, the Richardsons were charged with vio-
lating that ordinance, and on June 26, 1987, the charges against the
Richardsons were dismissed when the Municipal Court of South
Euclid found the ordinance to be vague, overbroad, and unconstitu-
tional on its face under the First and Fourteenth Amendments. The
decision of the Municipal Court was affirmed by the Ohio Court of
Appeals and then by the Ohio Supreme Court in 1990.

The Richardsons, in the meantime, had filed a suit under 42 U.S.C.
§ 1983 in the district court against the City and certain City officials,
____________________________________________________________
Just as importantly, Reyes suffered no loss from the ordinance in
question— he was found not guilty and was assured he would not be fur-
ther prosecuted under the ordinance. It appears that Reyes's main conten-
tion is freedom from criminal prosecution. As noted in Richardson v.
City of South Euclid, 904 F.2d 1050, 1054 (6th Cir. 1990), cert. denied,
498 U.S. 1032 (1991):

Freedom from criminal prosecution, [absent bad faith, see Dom-
browski v. Phister, 380 U.S. 479, 480 (1965),] is not an interest
that is accorded constitutional protection. Where appropriate pro-
cedures are followed, the states recognize no interest to be free
from the burdens of defending oneself against an unsuccessful
prosecution, and neither does the Bill of Rights.

10
claiming to have suffered humiliation, emotional distress, physical
harm, loss of earnings, and legal expenses as a result of their defense
against the prosecution. They sought $250,000 in damages. The dis-
trict court granted summary judgment to the City because it found no
Constitutional deprivation sufficient to support the § 1983 suit. This
holding was affirmed by the Sixth Circuit. That court stated the ques-
tion as follows:

We next examine whether the Richardsons, having been
prosecuted under an unconstitutional ordinance, suffered a
constitutional deprivation sufficient to support a claim under
42 U.S.C. § 1983 . . . .

The Richardsons claimed a loss of liberty interest as a result of
being required to bear the burden of defending against a criminal
prosecution brought under an invalid ordinance. 904 F.2d at 1052.
The court, citing Baker v. McCollan, 443 U.S. 137 (1979), noted that
even the three-day detention in Baker did not amount to a deprivation
of liberty recognized under § 1983 since the police had complied with
due process of law. Accordingly, Richardson held that the prosecu-
tion did not deprive the Richardsons of any liberty interest. "The
Richardsons were not convicted without notice and trial. They were
charged in writing, permitted an opportunity to respond in open court,
and vindicated by the dismissal of all charges after the municipal
court found the ordinance unconstitutional." 904 F.2d at 1053. The
court held that, under those facts which are essentially the same as
those in Reyes's case, they were not deprived of any liberty interest
because the ordinance was later held to be unconstitutional. 904 F.2d
at 1053. We agree.

The Richardsons also argued that prosecution under an ordinance
subsequently deemed to be invalid automatically gives rise to a cause
of action under § 1983. This argument is very much akin to the argu-
ment Reyes makes here and which we have quoted from his brief just
above. The argument goes that apparently the unconstitutionality of
the law itself should supply the Constitutional element underlying a
valid claim under § 1983. 904 F.2d at 1054. The Richardson court
held there was no automatic § 1983 claim on account of prosecution
under the invalid ordinance. The court relied on Carey v. Piphus, 435
U.S. 247 (1978), for the proposition that a procedural deficiency in

11
due process may be actionable but that to prosecute such a claim
"[t]he plaintiff [must] . . . convince the trier of fact that he actually
suffered distress because of the denial of procedural due process
itself." 435 U.S. at 263, 904 F.2d at 1055. The Richardson court
found no denial of procedural due process, and none is even claimed
here.

The court concluded that

This [concern for the integrity of the judicial process] sug-
gests to us that a per se cause of action for persons prose-
cuted under a law later to be determined unconstitutional
should be rejected because it would place state law enforce-
ment officials in the precarious position of having to deter-
mine whether a new law is valid and worthy of their
enforcement before risking, through enforcement, suffering
damages should the law later be deemed invalid. We think
the fourteenth amendment does not contemplate that state of
affairs.

904 F.2d at 1055.

We are unable to distinguish the case at hand from Richardson.
Indeed, if anything, this case would seem to be stronger for the City
of Lynchburg because only nominal damages are claimed, and Reyes
was acquitted rather than convicted under the ordinance in question.
We agree with Richardson.9

The judgment of the district court is accordingly
____________________________________________________________
9
The intervening decision of the Court in Thomas, mentioned in the
dissenting opinion, only strengthens our position. The necessity to argue
overbreadth to obtain a supporting reason for the conclusion reached by
the dissent illustrates perfectly the reasoning of the Sixth Circuit, which
we have quoted, slip p. 12, that holdings such as that advocated by the
dissent, amounting to an automatic cause of action, ". . . would place
state law enforcement officials in the precarious position of having to
determine whether a new law is valid and worthy of their enforcement
before risking, through enforcement, suffering damages should the law
later be deemed invalid."

12
 AFFIRMED.10

MICHAEL, Circuit Judge, dissenting:

The majority, relying on Richardson v. City of South Euclid, 904
F.2d 1050 (6th Cir. 1990), concludes that Reyes's claim for nominal
damages must fail because he suffered no constitutional injury from
being indicted and prosecuted under the Lynchburg public assembly
ordinance. I respectfully disagree. Reyes, unlike the plaintiffs in Rich-
ardson, has alleged a classic First Amendment injury by claiming that
his indictment and prosecution under the ordinance chilled the exer-
cise of his constitutional rights of free speech and assembly. Because
the City has done nothing to cast doubt on the truth of this allegation,
the district court erred when it determined on summary judgment that
Reyes had not suffered any constitutional injury.

A.

As the majority explains, the plaintiffs in Richardson sought dam-
ages under 42 U.S.C. § 1983 to compensate them for their alleged
humiliation, emotional distress, physical harm, loss of earnings, and
legal expenses that resulted from defending against prosecution under
an ordinance later found to be unconstitutional. The plaintiffs in Rich-
ardson did not allege that their speech or conduct had been chilled or
____________________________________________________________
10
While this appeal was pending in this court, Reyes moved to file with
the court certain supplemental materials in response to the City's brief
which are: Six pages out of apparently 113 pages of a deposition of one
William E. McRorie; a letter from the circuit judge of the circuit court
of the City of Lynchburg in response, and in apparent answer to Reyes's
adherents, to Reyes's motion to reduce or modify his sentence; a copy
of a newspaper article dated November 18, 1997 with respect to the dem-
onstration which is the subject of this case; and one page out of a deposi-
tion of apparently 52 pages of a certain Colonel Charles W. Bennett, who
is mentioned in the said newspaper article. Bennett is apparently a police
official. The defendants deny that those papers are properly a part of the
record in the case, and upon examination, we believe it more likely that
they are not, in which event a peremptory denial of the motion would
usually be in order. In an abundance of caution, however, we grant the
motion and consider the papers, none of which, singly or together, have
had any bearing on our decision in this case.

13
deterred as a result of the prosecution, a fact critical to the analysis
in that case. Rather, as the Sixth Circuit put it, the question was
whether a constitutional injury was present "where no deprivation
other than that suffered as a result of maintaining a legal defense is
sustained by the party prosecuted." Id. at 1051. Because the injury
alleged in Richardson was solely that of defending against a prosecu-
tion — an injury of being required to engage in the criminal process
— the court analyzed the claim under the Due Process Clause rather
than the First Amendment. Id. at 1052-53. In its due process analysis,
the court reasoned that "[t]he prosecution itself is the observance of
process due the accused." Id. at 1053. More particularly, the plaintiffs
in Richardson had received due process because they "were charged
in writing, permitted an opportunity to respond in open court, and vin-
dicated by the dismissal of all charges after the municipal court found
the ordinance unconstitutional." Id.

This case is quite different. Unlike the plaintiffs in Richardson,
Reyes alleges that because of his indictment and prosecution, "[t]he
fear of criminal prosecution has caused [him] to be deterred and
chilled in the exercise of [his] fundamental constitutional rights,"
including the First Amendment rights of free speech and peaceable
assembly.1 Thus, Reyes alleges that his speech was chilled during the
period in which he was indicted and prosecuted under the ordinance
prior to its repeal. The act of defending against a criminal prosecution
under an unconstitutional ordinance may or may not constitute a First
Amendment injury.2 But being inhibited from speaking because of an
____________________________________________________________
1
Reyes also alleges, like the plaintiffs in Richardson, that defending
against the prosecution was itself a constitutional injury. However,
because Reyes alleges other constitutional injuries, this is not a case
"where no deprivation other than that suffered as a result of maintaining
a legal defense is sustained by the party prosecuted." Richardson, 904
F.2d at 1051.
2
Because Reyes adequately alleged constitutional injury in the form of
chilled speech, this case does not require a decision on whether to adopt
Richardson's holding that defending against prosecution under an uncon-
stitutional ordinance does not amount to constitutional injury. Inciden-
tally, the Richardson holding prompted a vigorous dissent. See
Richardson, 904 F.3d at 1055-58 (Merritt, C.J., dissenting). And it
appears that not all courts follow the approach of the Richardson major-

14
ongoing prosecution is a classic First Amendment injury. See Vernon
Beigay, Inc. v. Traxler, 790 F.2d 1088, 1091 (4th Cir. 1986) (assum-
ing that police officers' actions had actually chilled plaintiff's speech,
then plaintiff suffered a First Amendment injury in fact); Pittman v.
Cole, 267 F.3d 1269, 1283 (11th Cir. 2001) (allegation that Alabama
Judicial Inquiry Commission opinion caused "self-censorship" on the
part of the plaintiffs, if true, constituted First Amendment injury in
fact); Sloman v. Tadlock, 21 F.3d 1462, 1470 (9th Cir. 1994) (The
jury "reasonably could have concluded that [plaintiff's] political
activity was a substantial or motivating factor in [the police officer's]
decisions to issue a citation and warnings to him, that the claimed rea-
sons for the citation and warnings were groundless, and that such
police conduct chilled the political expression of [plaintiff] and his
group. This is an adequate predicate to support liability against [the
officer] under § 1983.") (emphasis added). If Reyes can prove, as he
has alleged, that his speech was chilled during the period after his
indictment and before the ordinance was repealed, then he is entitled
to nominal damages at the very least. See Carey v. Piphus, 435 U.S.
247 (1978).

The majority explains that because Reyes was not harassed or
arrested at the scene of the original protest on November 10, 1997, he
cannot claim that his speech at that event was chilled. See ante at 9-10
note 8. The majority also notes that the ordinance was repealed on
March 10, 1998, and thus concludes that Reyes was not deterred from
participating in a planned protest on March 13. Id. I agree with both
of these observations. Reyes cannot claim that his speech was chilled
before he was indicted on December 1, 1997, or after the ordinance
was repealed on March 10, 1998. Yet this leaves a three-and-a-half-
month window between December 1, 1997, and March 10, 1998. In
Reyes's complaint, filed February 27, 1998, before the ordinance was
repealed, he alleges that "[t]he fear of criminal prosecution has caused
____________________________________________________________
ity. See, e.g., Faustin v. City and County of Denver, 268 F.3d 942, 947-
48 (10th Cir. 2001) (First Amendment plaintiff "has standing to sue for
damages based on her prosecution (including nominal damages, which
she sought)" even though "the section 3-1 [bill posting] charge against
Faustin was dismissed . . . and she is not being prosecuted under section
3-1 at this time.").

15
[him] to be deterred and chilled in the exercise" of his First Amend-
ment rights of free speech and assembly. Clearly, Reyes is alleging
not only that the fear of criminal prosecution will deter him from par-
ticipating in the protest planned for March 13, 1998, but also that the
pending criminal prosecution has already deterred and chilled him
from speaking.

The majority concludes that "[u]nder the facts of this case, [it]
find[s] no merit to" Reyes' claim that his exercise of his First Amend-
ment rights was chilled. However, what little we know about the facts
of this case, at least with regard to whether and when Reyes's speech
was chilled, comes entirely from the allegations in Reyes's complaint.
I concede that Reyes does not allege in detail how his speech was
chilled during the three and a half months between his indictment and
the repeal of the ordinance. Under our system of notice pleading,
however, great specificity is not required: a complaint need only con-
tain "a short and plain statement of the claim." Fed. R. Civ. P. 8(a).
In response to Reyes's allegation that his speech had been chilled (as
opposed to would be chilled in the future), the City of Lynchburg
stated in its answer that "it is without knowledge or information suffi-
cient to form a belief as to the truth" of this allegation. And in its
motion for summary judgment, the City did not address, let alone
contest, Reyes's allegation that he had already suffered a chill to his
First Amendment rights as a result of the prosecution. It is of course
true that "a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(internal quotations omitted). Nevertheless, when a defendant has not
contested an allegation with an affidavit or other evidentiary materi-
als, a district court may not simply discount the allegation in deciding
a motion for summary judgment. See Elbe v. Yankton Indep. School
Dist. No. 1, 714 F.2d 848, 850 (8th Cir. 1983) (For summary judg-
ment purposes, "[a]llegations in a complaint, which are not contested
by the moving party by affidavit or other evidentiary materials, are
assumed true."); Galvan v. Bexar County, Tex., 785 F.2d 1298, 1302
(5th Cir. 1986).

The district court, like the majority, concluded that Reyes had
failed to show that his First Amendment free speech rights were "suf-
ficiently chilled to constitute a violation." But the district court

16
reached this conclusion on very different grounds than the majority.
The district court acknowledged that "Reyes claims that the threat of
future indictments for violating the City ordinance chilled his free
speech." The court went on to say, however, that "the ordinance did
not prohibit Reyes from standing on a sidewalk by himself to proclaim
his anti-abortion message." The court also noted that "Reyes previ-
ously had protested in other areas of the City without so much as a
warning from a police officer." These observations are insufficient to
overcome Reyes's allegation that his constitutional rights had been
chilled by the indictment and prosecution. The First Amendment,
which provides for freedom of peaceable assembly as well as freedom
of speech, protects Reyes's right to speak from the public sidewalk
in the company of a friend just as clearly as it protects his right to
stand there and speak all alone. See NAACP v. Button, 371 U.S. 415,
430 (1963) ("[T]here is no longer any doubt that the First and Four-
teenth Amendments protect certain forms of orderly group activity.").
Nor is it clear to me why the district court thought that the fact that
Reyes had engaged in prior protests without arrest or prosecution
undermined his claim that his speech was chilled. Because Reyes had
been indicted and was facing criminal prosecution, a reasonable fact-
finder could certainly conclude that at least until March 10, 1998,
when the ordinance was repealed, Reyes feared future punishment if
he engaged in further protests. See Dombrowski v. Pfister, 380 U.S.
479, 487 (1965) ("The chilling effect upon the exercise of First
Amendment rights may derive from the fact of the prosecution, unaf-
fected by the prospects of its success or failure.").

In sum, apart from whether the majority is correct to adopt the
holding in Richardson, summary judgment for the City was inappro-
priate because Reyes has adequately alleged a constitutional injury in
the form of chilled speech. He claims that the indictment and prosecu-
tion for his public protest "has caused [him] to be deterred and
chilled" in the exercise of his First Amendment rights. This allega-
tion, framed in the past tense in a complaint filed February 27, 1998,
can only be read to mean that Reyes's speech was chilled in the
period after his indictment on December 1, 1997, and before the ordi-
nance was repealed on March 10, 1998. The City of Lynchburg did
nothing to confront or contest this allegation in the summary judg-
ment proceedings. Accordingly, the district court erred when it
granted summary judgment to the City on the ground that there was

17
no constitutional injury to support Reyes's claim for nominal dam-
ages.

B.

The majority does not squarely rule on the constitutionality of the
ordinance. It holds that even if the ordinance is unconstitutional,
Reyes has suffered no constitutional injury. Because I believe that
summary judgment was inappropriate on the issue of constitutional
injury, I must deal with whether the ordinance is in fact unconstitu-
tional. I conclude that the ordinance is unconstitutional on its face
because it is overbroad: it is not narrowly tailored to serve the sub-
stantial government interests asserted.

The first job is to determine the appropriate constitutional standard
for reviewing the ordinance. The parties agree that the Lynchburg
ordinance must satisfy the requirements for a time, place, and manner
regulation, namely, that the ordinance must be content-neutral, "must
be narrowly tailored to serve a significant governmental interest, and
must leave open ample alternatives for communication." Forsyth
County, Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992). In
addition, the ordinance must "contain adequate standards to guide the
official's decision and render it subject to effective judicial review."
Thomas v. Chicago Park Dist., 534 U.S. 316, ___, 122 S. Ct. 775, 780
(2002). The parties disagree, however, about whether the ordinance
must also be analyzed to determine whether it is a prior restraint on
speech subject to the procedural requirements set out in Freedman v.
Maryland, 380 U.S. 51 (1965). The Supreme Court has recently
resolved this question, explaining that a permit or licensing scheme
that "is not subject-matter censorship but content-neutral time, place,
and manner regulation of the use of a public forum" is not subject to
"the procedural requirements set forth in Freedman." Thomas, 534
U.S. at ___, 122 S. Ct. at 779-80. Reyes does not contend that the
ordinance is content based, and a review of the ordinance confirms
that it is content neutral. The ordinance indicates that the chief of
police or his designee shall issue the permit unless the proposed con-
duct would "endanger the public health, welfare or safety," as clari-
fied by a list of specific concerns. Lynchburg, Va., Code art. X,
§ 25.374.3(a) (repealed March 10, 1998). As in Thomas, "[n]one of
the grounds for denying a permit has anything to do with what a

18
speaker might say." Thomas, 534 U.S. at ___, 122 S. Ct. at 779. Thus,
the Lynchburg ordinance is not subject to the procedural requirements
of Freedman.

The Freedman requirements aside, Reyes claims that the ordinance
is unconstitutional both as applied to his conduct and on its face due
to overbreadth. Because I believe that the ordinance is overbroad on
its face, I will not address Reyes's as applied challenge.3 In the First
Amendment context, "an overbroad regulation may be subject to
facial review and invalidation, even though its application in the case
under consideration may be constitutionally unobjectionable."
Forsyth, 505 U.S. at 129. A challenge that an ordinance is facially
overbroad is permitted when, among other things, "the ordinance
sweeps too broadly, penalizing a substantial amount of speech that is
constitutionally protected." Id. at 130. The majority reasons that
because the ordinance has been repealed, it no longer reaches any
amount of constitutionally protected conduct. Accordingly, the major-
ity concludes that Reyes's overbreadth challenge no longer presents
a live case or controversy. I disagree. Reyes was indicted under the
ordinance on December 1, 1997, and prosecuted in the following
weeks and months. Reyes alleges that during the time before the ordi-
nance was repealed, his speech was chilled because of this indictment
and prosecution. If the ordinance was unconstitutional, Reyes suffered
an injury to his First Amendment rights regardless of whether the
constitutional infirmity was due to overbreadth or some deficiency in
the application of the ordinance to him. This injury, if proven, entitles
Reyes to nominal damages. Because Reyes has a live claim for nomi-
nal damages, whether the ordinance is unconstitutional, either on its
face or as applied, remains a live issue. See Massachusetts v. Oakes,
491 U.S. 576, 585-88 (1989) (Scalia, J., joined as to Part I by Black-
mun, Brennan, Marshall, and Stevens, J.J., concurring in the judgment
in part and dissenting in part) (repeal of statute under which defendant
____________________________________________________________
3
The factual record as it currently stands is not sufficient to determine
whether the ordinance, as it was applied to Reyes, met the requirements
for a time, place, and manner regulation. It is unclear, for example, how
many people were protesting with Reyes, where they were located in
relation to the school, or how heavy the pedestrian traffic was in this
area. Accordingly, an as applied time, place, and manner analysis would
require a remand to the district court for further factual development.

19
was convicted does not prevent him from making an overbreadth
challenge to that statute); Ruff v. City of Leavenworth, Kansas, 858
F. Supp. 1546, 1555 (D. Kan. 1994); Richard H. Fallon, Jr., Making
Sense of Overbreadth, 100 Yale L.J. 853, 856 (1991) ("Although the
point is often lost sight of, First Amendment overbreadth doctrine has
a constitutionally mandated core, involving the personal right of
defendants not to be sanctioned except under a constitutionally valid
rule of law."). Because the question of damages remains a live issue,
the City of Lynchburg should not be able to insulate its ordinance
from overbreadth review simply by repealing it. While the City is cor-
rect that the ordinance, now repealed, will not chill any protected
speech in the future, Reyes's damages claim requires us to determine
whether it did so in the past. See Comm. for the First Amendment v.
Campbell, 962 F.2d 1517, 1526-27 (10th Cir. 1992). Accordingly, I
will now take up Reyes's overbreadth challenge to the ordinance.

As noted above, the First Amendment requires that even a content-
neutral permit scheme regulating speech in a public forum be "nar-
rowly tailored to serve a significant governmental interest." Forsyth,
505 U.S. at 130. Narrow tailoring in the First Amendment context
does not require the government to regulate by using "the least restric-
tive or least intrusive means" available to achieve its goals, but it does
prohibit the government from "regulat[ing] expression in such a man-
ner that a substantial portion of the burden on speech does not serve
to advance its goals." Ward v. Rock Against Racism, 491 U.S. 781,
798-99 (1989). Similarly, when an ordinance "sweeps too broadly,
penalizing a substantial amount of speech that is constitutionally pro-
tected," it is unconstitutional due to overbreadth. Forsyth, 505 U.S. at
130.

The Lynchburg ordinance requires a permit for any planned "pa-
rade, picketing, meeting, assembly, rally, gathering, contest or other
assemblage on the public streets, sidewalks, parks, squares or other
public places." Code § 25-374.1(a). The ordinance defines "assembly"
as "any meeting, gathering or group of persons, animals, or vehicles
or a combination thereof having a common purpose, design or goal."
Code § 25-374(b). "Picketing" is defined as "peaceful methods of
expressing economic, social, political, religious and other issues to the
public and which may or may not include the use of signs . . . by more
than one (1) person at a specific location." Code § 25-374(c). The

20
ordinance exempts certain activities such as "spontaneous events,"
"jogging or walking," and "funeral processions." Code § 25-374.1(b).

As the City notes, the goals of the ordinance are apparent on its
face. The ordinance is meant to protect the public health, welfare, and
safety, specifically, by ensuring that any gathering will not unreason-
ably interrupt vehicular and pedestrian traffic, will not require a diver-
sion "of so great a number" of fire and police personnel as to impair
protection in other parts of the City, will be adequately monitored to
ensure orderliness, will not interfere with police or ambulance ser-
vice, and will not interfere with previously permitted events. Code
§ 25-374.3(a)(1)-(5). These government interests are significant and
appropriate to take into account, and Reyes does not contend other-
wise. See McDonald v. City of Chicago, 243 F.3d 1021, 1034 (7th
Cir. 2001) (significant government interests include "the safety of cit-
izens, and specifically the organized, effective, and safe flow of traf-
fic, including emergency vehicles"). The only question is whether the
ordinance is narrowly tailored to serve these interests.

On its face the ordinance encompasses a stunningly broad amount
of speech and conduct. Among other things, it requires a permit for
any planned gathering in any public place of more than one person
(or, indeed, of one person and one or more animals or vehicles, § 25-
374(b)) with a common purpose or goal, including but not limited to
the expression of economic, social, political, religious or other issues
to the public. Code §§ 25-374, 25-374.1. The ordinance as written
thus covers about every conceivable type of preplanned social activity
in a public place, such as playing fetch with a dog in the park (so long
as the game is not spontaneous), meeting friends on a street corner for
dinner, or standing with a friend on a city sidewalk holding signs
reading "Vote Yes on the School Levy."4 However, even in a First
Amendment facial challenge, courts look not only at the face of the
____________________________________________________________
4
It is reasonable to wonder whether the ordinance would require a
group of racoons to obtain a permit to rummage through garbage bins in
an alley. While such a group would constitute an "assembly" under § 25-
374(b) (a "group of . . . animals . . . having a common purpose . . . upon
any public . . . alley"), the ordinance only prohibits a person from con-
ducting or participating in an assembly without a permit. Code § 25-
374.1(a).

21
challenged ordinance but also "consider the [government's] authorita-
tive constructions of the ordinance, including its own implementation
and interpretation of it." Forsyth, 505 U.S. at 131. The City of Lynch-
burg does not claim to have any authoritative regulations or guide-
lines that construe the ordinance, but it does point to its history of
application of the ordinance, as evidenced by affidavits from city offi-
cials and a list of permits granted and denied in 1996 and 1997. It is
clear, for example, that the City has never required a permit for a
planned game of fetch in a city park. The City argues that the evi-
dence before the district court, including the list of recently permitted
activities, makes it clear that the ordinance was applied in a manner
that rendered it narrowly tailored to serve the interests identified in
the ordinance and that left adequate alternative means of communica-
tion. The history of an ordinance's application, without authoritative
regulations or a judicial construction, can narrow the scope of an ordi-
nance for the purposes of overbreadth analysis only when "a well-
understood and uniformly applied practice has developed that has vir-
tually the force of a judicial construction." City of Lakewood v. Plain
Dealer Publ'g Co., 486 U.S. 750, 770 n.11 (1988). It is questionable
whether the City's implementation of the ordinance was so well
known and uniformly applied as to have "virtually the force" of judi-
cial construction. Nonetheless, even if the City's argument about nar-
row implementation is accepted, the ordinance is still
unconstitutional.

The City could, of course, require a permit for some of the activi-
ties covered by the ordinance without running afoul of the Constitu-
tion. These include, for example, the Thousand Man Watch proposed
by the Coalition of Concerned African-American Men and the Walk-
a-Thon proposed by the March of Dimes. It is apparent from their
very names that these activities would likely involve large numbers
of people gathering in public places. Such events might reasonably be
said to pose legitimate government concerns recognized by the ordi-
nance, such as the impact on pedestrian and vehicle traffic and the
potential diversion of police and fire protection from certain parts of
the City. See, e.g., Coalition for the Abolition of Marijuana Prohibi-
tion v. City of Atlanta, 219 F.3d 1301, 1318 (11th Cir. 2000) (permit
requirements narrowly tailored to fit city's interests in security, sani-
tation, and traffic control at event involving around 30,000 partici-
pants). However, the City has also issued permits for activities such

22
as informational picketing relating to public mental health issues,
picketing by the National Association of Letter Carriers, distribution
of New Testaments on the public sidewalk by a local chapter of the
Gideons, public protests of gay discrimination, and engaging in "pub-
lic ministry." The permit list does not reveal the exact size of all of
these events or activities, but the record suggests that at least some of
them were quite small. Indeed, the City routinely granted permits to
lone protesters, such as one man who planned to protest against the
United States government at a City intersection, even though the pro-
tester indicated that in all likelihood he would be there by himself.
Jack Lewis, an officer in the Lynchburg Police Department responsi-
ble for issuing permits under the ordinance, testified that in his opin-
ion two people picketing in any public place would require a permit.
In contrast, he indicated that two people walking down the street dis-
cussing religion would not need a permit. Officer Lewis also indi-
cated that a group of four people standing on the sidewalk outside an
abortion clinic declaring their opposition to the practice of abortion
would likewise require a permit under the ordinance. In contrast, a
group of four people playing horseshoes in the park would not need
a permit, even if the event was preplanned. Officer Lewis testified
that if someone inquired about a permit, he would probably have that
person fill out an application and grant approval for the activity if
there was any question that the proposed activity might fall within the
ordinance.

I accept the City's representations, which are supported by testi-
mony and the list of permitted activities, that it does not apply the per-
mit ordinance to activities such as playing horseshoes in a public park
or discussing religion while walking down the street. Still, the list of
activities for which permits have been issued and the testimony
describing those activities for which permits would be required dem-
onstrates that the City's application of the ordinance does not come
close to rendering it narrowly tailored to achieve the stated goals of
preventing interruption of vehicular and pedestrian traffic, maintain-
ing public order, and ensuring adequate monitoring by police and fire
department officials. Two peaceful picketers quietly handing out leaf-
lets or holding signs on a sleepy sidewalk or in the middle of a public
park pose no threat to vehicular or pedestrian traffic or to public order
and require little or no attention from police and fire officials. See,
e.g., Grossman v. City of Portland, 33 F.3d 1200, 1205-08 (9th Cir.

23
1994) (ordinance requiring permit for any organized demonstration in
a public park not narrowly tailored to serve city's interests; ordinance
was applied to groups of peaceful protesters as small as eight); Com-
munity for Creative Non-Violence v. Turner, 893 F.2d 1387, 1392
(D.C. Cir. 1990) (CCNV) (regulation requiring permit for two or more
people speaking together in any above-ground areas of the Metro held
not narrowly tailored; "it is clear that many of these activities would
not interfere meaningfully with WMATA's asserted interests.").

It is of no moment that the City routinely granted permits for
benign gatherings of only a few people. "Both the procedural hurdle
of filling out and submitting a written application, and the temporal
hurdle of waiting for the permit to be granted may discourage poten-
tial speakers." Grossman, 33 F.3d at 1206. See also CCNV, 893 F.2d
at 1396-97 (Williams, J., concurring in the judgment) ("WMATA has
imposed only a license requirement, not an outright ban. But this is
not enough to save it . . . . [No government interest] would justify
requiring the lone button wearer to go to WMATA's office for a per-
mit."). The Lynchburg ordinance, as implemented by the City, was
not narrowly tailored to fit the legitimate interests of maintaining
order, the smooth flow of traffic, and the like. Rather, both as actually
implemented and as interpreted by City officials, the ordinance
"sweeps too broadly, penalizing a substantial amount of speech that
is constitutionally protected." Forsyth, 505 U.S. at 130. Accordingly,
I would hold that the ordinance is unconstitutionally overbroad.

Because the ordinance, even as implemented by the City, clearly
fails the narrow tailoring test, I will not address whether it meets the
additional requirement of "leav[ing] open ample alternatives for com-
munication." Id. I note in passing that the ordinance covers every pub-
lic place, so it is hard to imagine that the ordinance permits adequate
alternatives for communication. The City suggests that adequate alter-
natives exist insofar as Reyes is free to send letters to the editor or
to protest on the sidewalk by himself. Although Reyes is certainly
free to pursue these methods of communication, the City cannot seri-
ously claim that it can therefore banish groups from speaking in any
public place, or require permits for them to do so.

Accordingly, I would hold that the Lynchburg ordinance was
unconstitutional because, even as implemented by the City, it was not

24
narrowly tailored to serve the City's interests. Because Reyes alleged
that his speech was chilled as a result of his indictment and prosecu-
tion under this unconstitutional ordinance, and because the City has
made no effort to rebut this allegation, summary judgment should not
have been granted to the City on Reyes's claim for nominal damages
under § 1983.

I respectfully dissent.

25