[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 28, 2011
No. 10-12032
JOHN LEY
________________________ CLERK
D.C. Docket No. 8:09-cv-00923-SDM-EAJ
ANTHONY CATRON,
JO ANNE REYNOLDS,
WILLIAM SHUMATE,
on behalf of themselves and all others similarly situated,
RAYMOND YOUNG,
Plaintiffs - Appellants,
CHARLES R. HARGIS, et al.,
Plaintiffs,
versus
CITY OF ST. PETERSBURG,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 28, 2011)
Before EDMONDSON and MARTIN, Circuit Judges, and HODGES,* District
Judge.
EDMONDSON, Circuit Judge:
In this Section 1983 case, four homeless plaintiffs challenge the
constitutionality of two ordinances in the City Code of St. Petersburg, Florida (the
“City”) and of the City’s enforcement of the ordinances.
One ordinance, Section 20-30 (or, the “trespass ordinance”), authorizes
certain city agents to issue a temporary trespass warning for specific city land -- in
effect, an exclusion from the property -- on which the agent determined that the
warning recipient had “violate[d]” city or state law. The other ordinance, Section
8-321 (or, the “storage ordinance”), prohibits storage of personal property on city
land such as parks and rights-of-way. The district court dismissed all of Plaintiffs’
claims; we affirm the district court’s rulings, except we vacate part of the district
court’s ruling about the trespass ordinance. Plaintiffs have stated claims on the
issues of procedural due process under the United States Constitution and on their
right to intrastate travel under the Florida Constitution.
*
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,
sitting by designation.
2
I.
This case involves a complaint against the city of St. Petersburg, Florida, by
four homeless residents: Anthony Catron, Raymond Young, Jo Anne Reynolds,
and William Shumate (“Plaintiffs”). Plaintiffs contend that two city ordinances,
Sections 20-30 and 8-321, and the City’s manner of enforcement for these
ordinances, violate Plaintiffs’ rights under the United States and Florida
constitutions.
The City has cited, arrested, or confiscated property from each of Plaintiffs
for violating the trespass ordinance, the storage ordinance, or both. Plaintiffs filed
suit in district court seeking declaratory and injunctive relief pursuant to 42 U.S.C.
§ 1983. The district court dismissed with prejudice Plaintiffs’ amended complaint.
On appeal, Plaintiffs argue that the trespass ordinance -- both on its face and
in practice -- violates the Due Process Clause of the Fourteenth Amendment, the
First Amendment overbreadth doctrine, and the right to intrastate travel under the
Florida Constitution. Plaintiffs argue that the storage ordinance is void for
vagueness under the Due Process Clause.
3
II.
We review de novo a district court’s dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6). Redland Corp., Inc. v. Bank of Am. Corp., 568 F.3d
1232, 1234 (11th Cir. 2009).
A “complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974
(2007)). Stating a plausible claim for relief requires pleading “factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged”: “more than a sheer possibility that a defendant has acted
unlawfully.” Id.
III.
Plaintiffs’ first three arguments on appeal are about Section 20-30, the
trespass ordinance. Briefly stated, the trespass ordinance authorizes certain city
employees, including police officers, to issue a “trespass warning,” which warns
persons on public property to depart from that property and not to return.
4
The trespass ordinance gives authority to issue a trespass warning for public
property in three instances: (1) “city employees or officials, or their designees,
having control over a facility, building, or outdoor area, including municipal
parks” may issue a trespass warning to “any individual who violates any city
ordinance, rule or regulation, or state law or lawful directive of a city employee or
official” for the public property where the violation occurred, (2) a police officer
may issue a trespass warning, when the city official in control of the pertinent city
property is unavailable, to “any individual who violates any city ordinance or state
law” for the public property where the violation occurred but only if “the police
officer [has] receive[d] the approval of the officer’s immediate supervisor for the
issuance of the trespass warning,” and (3) any city employee or official has
authority “to issue a trespass warning to any person for any lawful reason for any
city property . . . , when necessary or appropriate in the sole discretion of the city
employee or official.” §§ 20-30(a)-(b), (g). On its face, the trespass ordinance
does not cover public rights-of-way. Section 20-30(a)-(b). But Plaintiffs allege
that the City enforces the ordinance “curb to curb” -- on public sidewalks and bus
shelters located on public sidewalks.
After a person has received a trespass warning, if the person is found on the
pertinent public property “in violation of a trespass warning [he] may be arrested
5
for trespassing.” Section 20-30(e).1 Section 20-30 requires trespass warnings -- as
exclusions -- to be for a limited time. For first-time violations, the trespass-
warning period may not exceed one year; for all other violations, the trespass-
warning period may not exceed two years. Section 20-30(c).
A person who has been issued a trespass warning (the “warning-recipient”)
may apply to exercise lawfully that person’s First Amendment rights on the city
property that is the subject of the trespass warning, and the city official or
employee in control of the property “shall not [] unreasonably den[y]” the
warning-recipient authorization “to enter the property or premises to exercise his
or her First Amendment rights or to conduct municipal business.”
Section 20-30(f).
A copy of the trespass warning -- it is a writing -- issued pursuant to the
trespass ordinance must be provided to the warning-recipient, but no formal
1
Florida’s trespass statute for property other than a structure or conveyance provides:
A person who, without being authorized, licensed, or invited, willfully enters upon or
remains in any property other than a structure or conveyance . . . [a]s to which notice against
entering or remaining is given, either by actual communication to the offender or by posting,
fencing, or cultivation. . . commits the offense of trespass on property . . . .
FLA . STAT . ANN . § 810.09.
6
procedures have been set out by which the recipient of a trespass warning may
challenge the basis of the warning or the terms of the warning. Section 20-30(d).2
A.
Plaintiffs first argue that the trespass ordinance is unconstitutional facially,
and as applied to Plaintiffs, in violation of the Due Process Clause of the
Fourteenth Amendment.3
The Due Process Clause requires “that a deprivation of life, liberty or
property ‘be preceded by notice and opportunity for hearing appropriate to the
nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 105 S.Ct. 1487, 1493
(1985) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 70 S. Ct. 652, 656
(1950)). The government must provide the required notice and opportunity for a
hearing “at a meaningful time and in a meaningful manner,” although the notice
and hearing may be postponed until after the deprivation has occurred. See
Mathews v. Eldridge, 96 S. Ct. 893, 902 (1976).
2
The trespass warning form attached to the City Police Department’s instructional order on
trespassing reads, in part, this way: “You are hereby notified that your presence is no longer
welcome . . . on the [municipal] property/premises described below, unless such prohibition is
rescinded in writing by the City official having control over the premises.”
3
Plaintiffs, in what they term a “facial” challenge, do not attack only the trespass ordinance but
allege also that the City’s actual manner of enforcement goes beyond the plain words of the
ordinance.
7
A Section 1983 procedural due process claim requires a plaintiff to prove
three elements: “(1) a deprivation of a constitutionally-protected liberty or
property interest; (2) state action; and (3) constitutionally-inadequate process.”
Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).
Plaintiffs have a constitutionally protected liberty interest to be in parks or
on other city lands of their choosing that are open to the public generally. City of
Chicago v. Morales, 119 S.Ct. 1849, 1858 (1999) (plurality opinion) (citations
omitted) (“[A]n individual's decision to remain in a public place of his choice is as
much a part of his liberty as the freedom of movement inside frontiers that is ‘a
part of our heritage,’ or the right to move ‘to whatsoever place one's own
inclination may direct.’”) Whether or not this interest is a fundamental right for
the purpose of substantive due process, Doe v. City of Lafayette, 377 F.3d 757,
770-73 (7th Cir. 2004), a person may forfeit this liberty right by trespass or other
violation of law, Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir.
1994). But the initial question we decide is not whether Plaintiffs have forfeited a
liberty interest by trespass or other violation of law, but what interest Plaintiffs
allege they possessed (and then have been deprived of) in the first place.4
4
The City -- arguing that Plaintiffs do not have a right to trespass on public property --
misunderstands the deprivation alleged here. Before receiving a trespass warning, the warning-
recipient is, by definition, not trespassing. The deprivation accomplished by the issuance of a
8
Plaintiffs’ factual allegations that the City prohibited them from being in
city parks (in general, and in Williams Park specifically), on public sidewalks, and
at bus shelters located on public sidewalks lead us to conclude that “there is more
than a sheer possibility” that Plaintiffs have been deprived of a constitutionally
protected liberty interest. Cf. Iqbal, 129 S. Ct. at 1949. Plaintiffs have sufficiently
alleged that the City has deprived them of liberty interests in two ways, by 1)
enforcing the trespass ordinance to prohibit them from having access to a specific
park (Williams Park) as ordinarily used by the public; and 2) carrying out a policy
of enforcing the ordinance to prohibit their use of all parks in the City open to the
public generally. These allegations satisfy the first element for a procedural due
process claim.5
And the parties do not dispute that state action is present. See Monell v.
Dep’t of Soc. Servs., 98 S. Ct. 2018, 2035 (1978). Therefore, due process is
needed, and we must determine whether Section 20-30 provides the
trespass warning therefore takes place before any trespass -- or supposed “right to
trespass” -- exists.
5
This right, to use a city park or parks, of course, is not absolute. We decide today only that a
resident of St. Petersburg has some federal right to use St. Petersburg parks under the ordinary
conditions in which these parks are made available to the general public. St. Petersburg residents
do not have a constitutional right to use public parks under all conditions and at all times.
9
constitutionally adequate process that is due. See Morissey v. Brewer, 92 S.Ct.
2593, 2600 (1972).
To determine whether the ordinance satisfies the constitutional requirement
of procedural due process, we apply the Mathews balancing test:
identification of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private interest that
will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the
function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
96 S. Ct. at 903.
Because Plaintiffs possess a private liberty interest in lawfully visiting city
property that is open to the public (an interest of which Plaintiffs will be deprived
by the issuance of a trespass warning), the first element of the Mathews test
weighs in Plaintiffs’ favor.
Turning to the third Mathews element, the City’s interest in discouraging
unlawful activity and in maintaining a safe and orderly environment on its
property is substantial. See First Vagabonds Church of God v. City of Orlando,
638 F.3d 756, 762 (11th Cir. 2011) (en banc). In addition, we accept -- even
without the aid of a factual record -- that some expense and burden would
10
probably arise as a result of additional procedures to allow challenges to the
receipt of a trespass warning. This element weighs in the City’s favor.
Last, considering the second Mathews element, we conclude that this
element weighs heavily in Plaintiffs’ favor. The trespass ordinance causes a
substantial risk of erroneous deprivation of liberty because it is seemingly easy for
the City -- through a variety of agents -- to issue a trespass warning and because
no procedure is provided for the recipient of a trespass warning to challenge the
warning or for the warning to be rescinded.
Section 20-30 provides a lot of discretion to many different city agents to
issue trespass warnings for a wide range of acts. Given that these warnings
operate like some kind of injunction, this situation creates a substantial risk of
erroneous deprivation of liberty. Section 20-30 gives many different agents
authority to issue a trespass warning: warnings can be issued by police officers,
“city employees or officials . . . having control over” a particular city property,
plus even the designees of city employees. §§ 20-30 (a)-(b). In addition, a wide
range of acts could constitute a violation of “any city ordinance, rule or regulation,
or state law or lawful directive of a city employee or official” and might result in a
trespass warning: public indecency, littering, and even disobeying the lawful
directions (for example, do not run around the pool) of a lifeguard in a public pool
11
would seemingly all be included in that description. Furthermore, Section 20-30
provides no guidance to city officials (or their designees) or police officers in
exercising their discretion to determine whether a person has actually committed a
violation that permits issuance of a trespass warning: this lack of specificity
suggests that whenever an authorized city employee thinks a violation has
occurred, he may issue a trespass warning.6
The ease with which trespass warnings may be issued is particularly
problematic here because the trespass ordinance provides no procedural means for
a warning-recipient to challenge the warning. An evident process for such
challenges has significant value in avoiding mistakes. Even if it is impractical for
the City to provide a pre-warning hearing to “assure that there are reasonable
grounds to support” the trespass warning, the City must provide some
post-deprivation procedure to satisfy the requirements of the Due Process Clause.
See Gilbert v. Homar, 117 S.Ct. 1807, 1813-14 (1997).
The City argues and the district court concluded that the trespass ordinance
affords adequate procedural due process because if a warning-recipient later
violates the warning and is ultimately charged with misdemeanor trespass (a
6
And the text of the ordinance seems not to rule out issuance of a trespass warning based on a
violation that the pertinent city agent failed to witness personally.
12
violation of state, not city law) the warning-recipient will be able to challenge the
validity of the trespass charge in state court.
We are not persuaded that this state forum affords sufficient procedural
protections. These trespass warnings are intended to serve instantly as some kind
of restraining injunction. The process available in state court, as a matter of
criminal procedure, to contest a state trespass charge -- if the trespass warning
later is not heeded -- is beside the point. A challenge to a trespass charge in state
court does not equal a challenge to the validity of a trespass warning, especially of
the warning’s issuance at the outset: these two different legal questions (was a
trespass warning rightly due per the city ordinance; was the state trespass law
violated) require examination of different acts and different circumstances.
Nothing presented to us shows that a state court must evaluate the
underlying circumstances that supposedly led to a trespass warning to hold a
person criminally responsible for the act of entry on property that gave rise to the
later trespass charge.7 Besides, even if a Florida court acquitted the warning-
7
The Florida trespass statute contains no requirement that “notice against entering or remaining”
be rightful, authorized, or valid. FLA . STAT . ANN . § 810.09; see also id. at § 810.011 (no
definition of “notice”). The trespass statute has four separate elements: “1) wilfully entering
upon or remaining in any property; 2) other than a structure or a conveyance; 3) without being
authorized, licensed or invited; 4) where notice against entering or remaining is given either by
actual communication to the offender or by posting, fencing or cultivation.” Smith v. State, 778
So. 2d 329, 330 (Fla. 2d Dist. Ct. App. 2000).
13
recipient of the state trespass charge, that the state court’s decision, as a matter of
law, would vacate a trespass warning issued by the City, a different political
entity, is not obvious.8
The way the City has allegedly applied Section 20-30 against Plaintiffs in
this case illustrates some of the problems posed by the absence of municipal
review. In 2006 a police officer issued Catron a trespass warning for “all of
Williams Park” and “all [C]ity parks,” which would remain in effect
“permanently.” This warning is an example of a trespass warning not authorized
by Section 20-30, which authorizes a warning applying only to the “specific
property where the violation occurred” for a limited time. But as the trespass
ordinance is currently written, Catron has been provided by the City with no way
to contest the trespass warning or at least the scope of the warning. Catron’s only
8
The trespass warning states that the warning-recipient is "hereby notified that [the
warning-recipient's] presence is no longer welcome . . . on the property/premises described . . .
unless such prohibition is rescinded in writing by the City official having control over the
premises." The City and the district court point to the language in the trespass warning form,
which implies that a trespass warning can be "rescinded in writing by the City official having
control over the premises." The suggestion that a trespass warning -- in some unspecified
circumstance -- can be rescinded does not establish (or give notice) that a procedure exists for a
warning-recipient to seek the rescission. For example, nothing in the ordinance or in the
language of the trespass warning obligates anyone on behalf of the City to listen, even for a
moment, to a single word from a warning-recipient who wishes to call into question the
correctness of the warning's issuance -- even after the warning has been issued. And the
"rescinded in writing" phrase is entirely consistent with the simple idea of mercy or clemency by
grace on the part of a city official brought about by the official's own change of mind, with no
prompting from or no meaningful opportunity to contribute information from the
warning-recipient: this kind of rescission is disconnected from the right of due process.
14
options, it seems, are to relinquish his right to visit city parks altogether or to
violate the trespass warning and subject himself to a criminal prosecution for
trespass by a different sovereign (the state) or to bring a court action challenging
the entire scheme.
We conclude that Plaintiffs have stated a claim, facially and as-applied,
under the Due Process Clause: Section 20-30 lacks constitutionally adequate
procedural protections as the ordinance is presently written and allegedly
enforced.
B.
Plaintiffs next argue that they, in the light of the First Amendment, have
stated a claim for relief that Section 20-30 is facially unconstitutional and
substantially overbroad.
“[A] party [may] challenge an ordinance under the overbreadth doctrine in
cases where every application creates an impermissible risk of suppression of
ideas, such as an ordinance that delegates overly broad discretion to the
decisionmaker . . . .” Forsyth Cnty. v. Nationalist Movement, 112 S. Ct. 2395,
15
2401 (1992). We must keep in mind that invalidating a law for overbreadth is
“strong medicine.” Virginia v. Hicks, 123 S.Ct. 2191, 2199 (2003).
Plaintiffs contend the trespass ordinance is overbroad in the discretion it
gives city employees to issue trespass warnings, warnings which ban access to
quintessential public fora uniquely dedicated to expressive activities.9 Plaintiffs
allege no facts to support this attack-on-expression argument, but just set out the
words of the trespass ordinance instead. This recitation of Section 20-30 does not
support an inference that the trespass “notice would even be given to anyone
engaged in constitutionally protected speech.” Hicks, 123 S.Ct. at 2198.
A risk of erroneous enforcement of Section 20-30 does exist and some risk
of suppression of speech in traditional public fora could therefore possibly exist,
given the broad discretion city agents possess in enforcing the ordinance. See
Forsyth Cnty., 112 S. Ct. at 2401. But the facts alleged do not plausibly suggest
an “impermissible risk of suppression of ideas” in “every application” of the
9
Plaintiffs also argue the trespass ordinance is overbroad in the discretion it gives city officials to
grant or deny permission to warning-recipients who later wish to exercise their First Amendment
rights. We suspect that this First Amendment exception may suffer from the same problems of
too much discretion and insufficient procedural due process that infect the ordinance in general.
But, given our resolution of Plaintiffs’ overbreadth claim, we need not rule on the exception
specifically. Just as the Supreme Court did in Hicks, “even assuming invalidity of” the First
Amendment exception that requires advance permission from a city official with broad
discretion, we conclude that Plaintiffs have not alleged facts to support a claim that the “trespass
policy as a whole prohibits a ‘substantial’ amount of protected speech in relation to its many
legitimate applications.” Hicks, 123 S.Ct. at 2199.
16
ordinance. See id. (emphasis added). In this instance, “whatever overbreadth may
exist should be cured through” as-applied litigation in “fact situations to which
[the ordinance’s] sanctions . . . may not [constitutionally] be applied.” Broadrick
v. Oklahoma, 93 S.Ct. 2908, 2918 (1973).
Plaintiffs have stated no claim for the extraordinarily rare overbreadth
invalidation they seek.
C.
Third, Plaintiffs argue that they have stated a claim for relief for violation of
Plaintiffs’ right to intrastate travel and freedom of movement under the Florida
Constitution: Plaintiffs contend that the City’s customs and practices taken
pursuant to the trespass ordinance burden their right to intrastate travel.
Plaintiffs’ allegations plausibly suggest that the City’s practice of enforcing
the trespass ordinance limits their protected freedom to travel intrastate.10 The
Florida Supreme Court recognizes, under its state constitution, a fundamental right
10
In their amended complaint, Plaintiffs alleged that the City’s enforcement of a variety of
policies and ordinances burdens Plaintiffs’ right to intrastate travel under the Florida
Constitution. On appeal, Plaintiffs limit their argument about their alleged right to intrastate
travel to a challenge of the City’s manner of enforcement of the trespass ordinance.
17
to intrastate travel. State v. J.P., 907 So. 2d 1101, 1113 (Fla. 2004); see FLA.
CONST. art. I, § 2.
Of decisive importance, Plaintiffs allege that the City “enforc[es] the
trespass laws to prohibit Plaintiffs . . . from being present on public sidewalks
surrounding public parks [and] waiting for buses at bus shelters located on public
sidewalks surrounding public parks . . . .”11 All Florida citizens have a right under
the Florida Constitution to “chat[] on a public street,” “stroll[] aimlessly,” and
“saunter down a sidewalk.” J.P., 907 So. 2d at 1113 (quoting Wyche v. State, 619
So. 2d 231, 235 (Fla. 1993)). If the City has a policy of enforcing the trespass
ordinance on sidewalks surrounding public parks as Plaintiffs allege, the alleged
City policy limits Plaintiffs’ right of intrastate travel as defined by the Florida
Supreme Court. The City constitutionally may burden this right. But the City
must meet a condition first: the City’s policy must be narrowly tailored to advance
a compelling governmental interest. See J.P., 907 So. 2d at 1115-16.
11
The City argues that the Florida Supreme Court has not recognized a right to intrastate travel to
a particular place and that the trespass ordinance only denies warning-recipients access to the
particular place where the violation occurred. But Plaintiffs do not allege or argue that citizens
of Florida enjoy a fundamental right to intrastate travel to a particular place on which they have
trespassed. Plaintiffs allege that the City has a policy of enforcing -- by barring access to
adjoining sidewalks and bus shelters -- the trespass ordinance beyond the boundaries of the
public parks where violations have occurred.
18
Even on appeal, the City asserts no interest in this alleged enforcement of
the trespass ordinance on sidewalks nor does the City argue that the alleged
enforcement policies are narrowly tailored to meet the City’s goals. We cannot
conclude, based on the allegations and arguments before us, that the City’s alleged
policy of enforcing the trespass ordinance on public sidewalks passes the strict
scrutiny test required by Florida law.
IV.
Plaintiffs challenge Section 8-321, the storage ordinance, under the Due
Process Clause as impermissibly vague on its face.
Section 8-321 prohibits the “unlawful” outdoor storage of, among other
items, “personal property including clothing or bedding,” on private property and
on public property, including public rights-of-way. §§ 8-321(b)(5), (h)(4).
Plaintiffs challenge the parts of Section 8-321 about storage on public property.
Under the ordinance, storage is “broadly interpreted to include any action to place,
store, park, display, locate, or set” an item of personal property.
Section 8-321(h)(1).
19
If, pursuant to the storage ordinance, a city official provides a person with
written notice that the person is unlawfully storing personal items on public
property, the person must remove his personal items from public property within
thirty-six hours. Section 8-321(d)(1). The City may remove unlawfully stored
items that remain (or have been moved to another public location) on public
property after thirty-six hours have passed. §§ 8-321(d)(1), (3). Moreover, if a
sign is posted on public property “stating that unattended items may be removed
immediately, then no additional notice shall be required and the item may be
removed immediately.” Section 8-321(d)(4).
Plaintiffs argue that the storage ordinance is vague and unconstitutional on
its face because it fails to define sufficiently the term “unlawful storage” or fails to
define sufficiently the term “unattended” or both. Plaintiffs allege that the
ordinance is unconstitutionally vague because it does not “‘give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited . . .’”
and it provides no “sufficiently explicit standards for those who will apply it,
thereby encouraging ‘arbitrary and discriminatory enforcement.’” United States v.
Single Family Residence, 803 F.2d 625, 630 (11th Cir. 1986) (quoting Grayned v.
City of Rockford, 92 S. Ct. 2294, 2299 (1972)).
20
In bringing a facial challenge to an ordinance for vagueness, a party “‘who
engages in some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.’” Holder v.
Humanitarian Law Project, 130 S.Ct. 2705, 2719 (2010) (quoting Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 102 S. Ct. 1186, 1191 (1982)).
Accordingly, even though this challenge is a facial challenge, we must determine
whether the terms “unlawful storage” and “unattended” are vague as applied to
Plaintiffs’ circumstances. If Plaintiffs’ own conduct is clearly proscribed by the
terms of the ordinance, this “necessarily precludes a finding of facial vagueness.”
High Ol’ Times, Inc. v. Busbee, 673 F.2d 1225, 1228 (11th Cir. 1982).
For Plaintiffs’ “unlawful storage” argument, the term “unlawful storage”
clearly proscribes plaintiff Reynolds’ alleged conduct and is not vague. Reynolds
placed several bags, blankets, and other personal belongings -- more than she
could carry -- on a park bench beside her. Reynolds kept these items with her
because “she did not have access to shelter or a place to store her belongings.” A
police officer gave Reynolds written notice that her belongings were “unlawfully
stored on public property.”
Plaintiffs’ allegations indicate that Reynolds accumulated personal items
and kept them with her on public property to preserve them for future use: this
21
conduct accords with the ordinary meaning of the word “store.” Reynolds’
conduct was clearly proscribed by the storage ordinance: thus, the ordinance could
be constitutionally applied to her. In addition, because even “the possibility of
constitutional application to some of the conduct in which the [plaintiffs] are
engaged necessarily precludes a finding of facial vagueness,” and a constitutional
application is possible given the allegations in Reynolds’ case, we need not
examine what is alleged about plaintiff Young’s conduct; we can conclude that
Section 8-321, on its face, is not unconstitutionally vague in its definition of
“unlawful storage.”12 See Busbee, 673 F.2d 1225, 1228.
For “unattended,” Plaintiff Shumate says this term is too vague and that his
own conduct was not clearly proscribed by the storage ordinance. The City, on
three occasions, removed Shumate’s personal property, which he had left
temporarily in the care of other people, from a city park; according to Shumate the
removals took place because the City considered his property to be “unattended”
12
Plaintiffs’ argument that variations in the exact amount of personal possessions officers have
said Plaintiffs are allowed to keep on public property raise only marginal problems in the
application of the ordinance that do not suggest the ordinance is vague in its definition of the
normal, “general class of offenses” to which the ordinance is directed. United States Civil Serv.
Comm'n v. Nat’l Ass'n of Letter Carriers, 93 S.Ct. 2880, 2897 (1973). “As always, enforcement
requires the exercise of some degree of police judgment,” Grayned, 92 S.Ct. at 2302, and the
degree of judgment involved for a police officer to determine what constitutes storage is
acceptable.
22
for the purpose of enforcing the storage ordinance. The common and ordinary
meaning of “unattended” indicates that an item is not “unattended” if some person
-- the owner or his proxy -- is present with the item and looking after it.
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2482 (1993) (“lacking a
guard, escort, caretaker, or other watcher”). We agree that Shumate’s alleged
conduct was not clearly proscribed by the storage ordinance.
Because Shumate’s conduct was not clearly proscribed by the challenged
terms of the ordinance, we must decide whether “what the ordinance as a whole
prohibits . . . in the vast majority of its intended applications” is clear enough. Hill
v. Colorado, 120 S.Ct. 2480, 2498 (2000) (quotations and citations omitted).
Given health, safety, and security concerns, the City’s removal (even immediate
removal when a warning sign is posted) of unattended items on public property
would not surprise a person of ordinary intelligence who left personal belongings
unattended -- that is, not closely and plainly accompanied by someone associated
with the owner -- on public property. And although Shumate’s specific conduct
was not clearly proscribed by the storage ordinance, in the vast majority of the
intended applications of the ordinance, the ordinary meaning of “unattended” is
not so broad as to encourage arbitrary or discriminatory enforcement. Cf. Busbee,
23
673 F.2d at 1229 (if a law is susceptible of an interpretation which cures the law’s
vagueness, the court must accord the law such meaning).
We cannot conclude that the ordinance is facially void for vagueness
because we cannot conclude that it is “impermissibly vague in all its applications.”
Hoffman Estates, 102 S.Ct. at 1191.
V.
We AFFIRM the district court’s ruling, except we VACATE the district
court’s dismissing the claim that Section 20-30 violates procedural due process
and dismissing the claim that Section 20-30 violates the right to intrastate travel
under the Florida Constitution.
AFFIRMED in part, VACATED in part, and REMANDED.
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HODGES, District Judge, Concurring in part and Dissenting in part:
I concur in those parts of the majority opinion that affirm the rulings of the
district court, but respectfully dissent from the majority holding (Part III.A.) that
the Appellants have adequately pleaded a deprivation of procedural due process as
to Section 20-30, the trespass ordinance, and I would not reach the state
constitutional claim regarding the right to intrastate travel (Part III.C.).
In sum, I would affirm the district court’s dismissal of the action, but with
instruction to dismiss the state constitutional claim without prejudice, thereby
leaving that issue for the state courts to resolve.
I.
As the majority skillfully points out, the liberty interest asserted by the
Appellants is bifurcated and progressive in nature and significance. At the time a
trespass warning is issued, no trespass has yet occurred and the limitation upon the
claimant’s liberty of movement is minimal. If the warning is later unheeded
resulting in an arrest, the deprivation of the claimant’s liberty is obviously much
more severe. This is important because the process that is due depends upon the
extent or significance of the deprivation involved. See Gilbert v. Homar, 520 U.S.
924, 931, 117 S.Ct. 1807, 1812, 138 L.Ed.2d 120 (1997); Mathews v. Eldridge,
424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); Morrissey v. Brewer,
25
408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Goldberg v.
Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970).
Here, as noted in the majority opinion, the trespass warning issued to
Appellant Anthony Catron expressly stated that it was effective “unless such
prohibition is rescinded in writing by the City official having control over the
premises.” The majority dismisses this declaration as insufficient to establish a
necessary procedure, and this is the point of my disagreement. The mere mention
of rescission necessarily implies – and gives notice of – the right to apply to the
designated city official for review and possible relief. To be sure, that is not an
elaborate procedural mechanism, but I deem it to be enough under the
circumstances to provide the required procedural safeguard for the minimal
deprivation occasioned by a trespass warning. Thompson v. Ashe, 250 F.3d 399
(6th Cir. 2001) is a case remarkably on point. Albert Thompson was placed on a
“no trespass” list by a public housing authority prohibiting entry by Thompson
upon the grounds of public housing facilities managed by the authority. Among
other claims, Thompson asserted a violation of his right to procedural due process.
The Sixth Circuit held (250 F.3d at 407-408) that a meeting between Thompson
and the executive director of the authority concerning Thompson’s placement on
the list was sufficient to satisfy any process he was due.
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II.
If the dismissal of the federal claims is affirmed in all respects, as I believe
to be appropriate, it then becomes unnecessary to decide what to do about the state
constitutional claim. The district court dismissed it with prejudice while the
majority (Part III.C.) holds that the claim should be reinstated. In the absence of
the federal claims, however, the statute – 28 U.S.C. § 1367(c)(3) – provides a
mechanism for declining jurisdiction in order that the state courts may resolve
issues of state law, especially issues of state constitutional law. The circumstances
of this case clearly fall within the ambit of the relevant authorities teaching that
dismissal without prejudice is the appropriate course of action here. See Parker v.
Scrap Metal Processors, Inc., 468 F.3d 733, 742-747 (11th Cir. 2006). See also
United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218
(1966); Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999) (“[I]f the
federal claims are dismissed prior to trial, Gibbs strongly encourages or even
requires dismissal of state claims.”).
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