Open Carry Tarrant County V. Arlington - The End Draws Near.

Today was the deadline to file dispositive motions in the First Amendment “Sidewalk Ordinance” case, in which Open Carry Tarrant County (“OCTC”) sued the City of Arlington case in federal court. Not surprisingly, the City filed a motion for summary judgment this morning, and Norred Law filed one on behalf of OCTC this afternoon.

A motion for summary judgment is appropriate only when there are no factual disputes. A motion for summary judgment is not appropriate, for example, when a car owner and a mechanic have different versions on the instructions that the mechanic received, and there is no written contract, and there is a dispute over the bill. There are facts in that case that must be resolved and no easy way to discern between the two parties which is right.

However, when all the facts are known without dispute and all that is left is an application of the law, the court handling a suit can apply the law to the facts and end the dispute without a trial by summarily granting judgment based on a party’s motion. (“Summary” means “without a full trial” in this situation.)

In this case, most of the relevant facts are known. The City has passed a law. That law prevents pedestrian-motorist interaction at controlled intersections unless the pedestrian stays on the curb. If a pedestrian is distributing copies of the Constitution, and a passenger in a middle lane wants one, the pedestrian is breaking the law by entering the street to deliver the copy, irrespective of whether any other cars are present or the color of the light. The pedestrian is also breaking the law even if he steps into a bike lane to reach a car in the outside lane. (In our office, we argue about whether this should be called the “Mr. Fantastic Problem” or the “Stretch Armstrong Issue”. Now that I think about it, we should have argued that the law discriminates against short-armed people. Dang.)

The City is relying on Houston Chronicle v. League City, in which the Fifth Circuit of Appeals approved the same language that Arlington is using. We believe that their reliance on that case is misplaced because OCTC is handing out political literature, rather than selling newspapers.

Courts recognize the difference between literature distribution and commercial interchange, and discuss it, as the Ninth Circuit did in Acorn v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986), where it stated:

“Unlike oral advocacy of ideas, or even the distribution of literature, successful solicitation requires the individual to respond by searching for currency and passing it along to the solicitor. Even after the solicitor has departed, the driver must secure any change returned, replace a wallet or close a purse, and then return proper attention to the full responsibilities of a motor vehicle driver. The direct personal solicitation from drivers distracts them from their primary duty to watch the traffic and potential hazards in the road, observe all traffic control signals or warnings, and prepare to move through the intersection.” Id. at 1269. (Underlining added.)

Thus, courts can distinguish between situations where pure political free speech is at stake and commercial scenarios where money is changing hands. In fact, the Court’s earlier injunction in this case, which told the City that it could not enforce its earlier version, stated that OCTC’s attempts to distribute copies of the Constitution and gun rights literature on Arlington’s streets and sidewalks is “precisely the kind of speech in precisely the kind of place that the First Amendment aims to protect most.”

There are other differences between our case and Houston Chronicle, among them is the case’s absence of a discussion on the state law prohibiting obstruction of traffic (Tex. Penal Code § 42.03). Using that law, the police could cite people for interacting with traffic in a way that creates hazardous situations. But we are discussing it in this case.

Lastly, Houston Chronicle includes a brief discussion regarding the state law which disallows over-regulation of charitable solicitation in streets for state employees (usually fire-fighters). Because appellate courts are generally not allowed to consider new issues not litigated in lower courts, and the Houston Chronicle did not bring up the issue until the appeal, the Fifth Circuit said that it would not rule on that issue in Houston Chronicle.

We have brought this issue, often referenced as the “fire fighter exemption”, to the trial court; this issue alone distinguishes the Arlington lawsuit from Houston Chronicle. However, the City has historically not bothered to regulate state employees’ solicitation in the streets at all, instead simply allowing them to do whatever they want, though asserting the importance of forcing Open Carry supporters and anyone else passing out literature to strictly comply with the new law. With non-state employees, it is all about safety, but for state employees, they do whatever they want.

One cannot predict how a court will rule in this case. You may be convinced that we are right, but this is hardly an unbiased forum where I’ve presented the other side’s positions as well as it could; the City’s attorney would tell it differently than we do. The Court may decide to distinguish this case from Houston Chronicle and find for Open Carry, or it may decide to follow Houston Chronicle in an unnuanced way and rule for the City, forcing us to file an appeal or stand down.

We have already won a change in the law, but if the court comes out for the City and we do not appeal, you can bet that every city in the country will have this law on their books in short order.

I expect a ruling on the dueling motions for summary judgment some time in April. There may be another round of paper responses. The Court may set a hearing, which would be very interesting, but would also be a little surprising, as federal motions for summary judgment often are decided without a hearing.

It is possible that the Court decides that it wants facts that it does not have yet in order to make a decision, and denies both motions. This would be very surprising, but is certainly possible. In that case, we would have a trial on those issues in late July.

In any case, this dispute is near its end for the trial court. Once the Court makes its decision in the next few weeks (or less), it will be to the Fifth Circuit, or it will be a decision by someone to stand down.

The end of many court pleadings has a section entitled the “prayer”, in which a party summarizes its requests for the court to act in a certain way. For some pleadings and some cases, that title is more accurate than in others. I filed our prayer this afternoon in more ways than one. You are welcome to join in.

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