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McGraw v. City of Oklahoma

United States District Court, W.D. Oklahoma

June 18, 2018

CALVIN MCCRAW, et al., Plaintiffs,
v.
CITY OF OKLAHOMA, et al., Defendants.

          ORDER

          JOE HEATON CHIEF U.S. DISTRICT JUDGE

         Plaintiffs filed this action against the City of Oklahoma City (“City”) and William Citty, the Oklahoma City police chief, challenging a city ordinance which prohibited certain conduct on public medians within city limits. The City revised the ordinance on November 7, 2017. The revised ordinance[1] prohibits standing, sitting or staying on any portion of a median located within a street or highway open for use by vehicular traffic if the posted speed limit for such street or highway is forty miles per hour or greater.[2]Plaintiffs contend the revised ordinance violates their free speech rights and those of third parties under the First Amendment. They also claim the ordinance is unconstitutionally vague because it fails to give fair warning of what is prohibited, [3] invalidly deprives them of liberty and, as applied, denies plaintiffs who panhandle the equal protection guaranteed by the Fourteenth Amendment. Plaintiffs seek both a declaration that the ordinance on its face and as applied to them and third parties violates the First and Fourteenth Amendments and an injunction to keep the ordinance from being enforced.

         The parties have filed cross motions for summary judgment, which should be granted if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.56(a). Having considered the motions and supporting documentation, the court concludes plaintiffs' motion should be denied and defendants' motion should be granted as to plaintiffs' void for vagueness claims and their equal protection claims. Material questions of fact on several issues preclude the entry of summary judgment in either plaintiffs' or defendants' favor on the remaining claims.

         Background

         Plaintiffs are various individuals who reside in Oklahoma City, a minority political party in Oklahoma and an independent news outlet based in Oklahoma City. They allege they have long engaged in diverse expressive activities on public medians in the metropolitan area ranging from political campaigning and panhandling to news reporting. Plaintiffs filed this lawsuit initially challenging an ordinance the Oklahoma City Council enacted in 2015. Plaintiff contended the ordinance “criminalize[d] ‘standing, sitting, or staying' on ‘any portion of a median' within city limits virtually ‘for any purpose' other than to cross it.” First Amended Complaint, Doc. #15, ¶1. The City revised the ordinance in 2017, but plaintiffs maintain the revised version is still unconstitutional.

         The revised ordinance provides in pertinent part:

§ 32-458. - Standing, sitting, or staying on streets, highways, or certain medians.
(11) Based on findings (a)(1) through (a)(l0) above, the City Council wishes to enact this section to:
i. Limit as much as possible the number of individuals sitting, standing or staying in streets or highways that are open for use by motor vehicles; and to further
ii. Limit as much as possible the number of individuals sitting, standing or staying on medians located in streets or highways with a speed limit of 40 mph or greater that are open for use by motor vehicles; and
(12) The City Council further finds that, notwithstanding the restriction imposed by this section on the use by individuals of medians located in streets or highways with a speed limit of 40 mph or greater, scores of medians exist throughout the limits of the City that are located in streets or highways with a speed limit of less than 40 mph and all such medians may be available for unrestricted use by individuals.
(b) Intent. This Ordinance is not intended to impermissibly limit an individual's right to exercise free speech. Rather it seeks to impose a regulation that is narrowly tailored to protect pedestrians and drivers alike by imposing a specific place and manner restrictions for certain places where substantial threats of grievous bodily injury or death exist due to vehicular traffic traveling at high speeds.
(c) Except as permitted by Subsection (e) of this section, no individual shall stand, sit, or stay for any purpose in any portion of a street or highway open for use by vehicular traffic.
(d) Except as permitted by Subsection (e) of this section, no individual shall stand, sit, or stay for any purpose on any portion of a median located within a street or highway open for use by vehicular traffic if the posted speed limit for such street or highway is 40 mph or greater; provided, if no speed limit is posted for such street or highway, then for the purpose of applying the restrictions imposed by ...

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