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Cranford v. Kluttz

United States District Court, M.D. North Carolina

September 30, 2017




         This matter comes before the court on the parties' cross-motions for summary judgment. Defendants Eddie Kluttz (“Defendant Kluttz”) and Reese Helms (“Defendant Helms”) have moved for summary judgment (Doc. 22), to which Plaintiff Brian Cranford has responded (Doc. 31), and Defendants have replied (Doc. 36). Plaintiff has also moved for summary judgment (Doc. 25), to which Defendants have responded (Doc. 34), and Plaintiff has replied (Doc. 37). This matter is now ripe for resolution. For the reasons stated herein, this court will grant Defendants' motion. Plaintiff's motion will be denied.

         I. BACKGROUND

         A. Facts and Procedural Background

         i. Background

         The majority of the facts in this case are relatively undisputed, as a large part of the activities at issue were either videotaped or audiotaped. Two significant factual disputes are present. The first factual dispute arises from the question of whether Plaintiff's preaching involved a general admonishment to the crowd as a whole when Plaintiff used the terms “tramps, whores, and prostitutes” or whether Plaintiff directed those comments to a specific individual in the crowd. The second dispute relates to the legal effect of Plaintiff's conviction in state district court of the offense of Disorderly Conduct in violation of N.C. Gen. Stat. § 14-288.4; the conviction was followed by an acquittal of that offense in state superior court. While the parties suggest different interpretations of the evidence of the actions of Plaintiff, the principle issue is whether Plaintiff has presented evidence sufficient to create a material issue of fact as to whether the conviction in state district court was obtained by fraud or unfair means. This court finds there are sufficient undisputed facts to render summary judgment determination appropriate.

         In his own words, Plaintiff is a “Christian[] that take[s] a Bible out on the street and just preach[es], ” which some call “street preaching.” (Pl.'s Br. in Supp. of Mot. for Summ. J. (“Pl.'s Br.”), Ex. 1, Excerpts from Dep. of Brian Douglas Cranford (“Pl.'s Dep.”) (Doc. 26-2) at 3.)[1] According to Plaintiff, he engages in street preaching “almost every afternoon, ” usually focusing on “local towns” or “surrounding towns” and that “then on the weekends, [he] usually travel[s].” (Id.)

         On July 20, 2013, the Town of China Grove, North Carolina, held its annual “Farmers Day Festival” (“Festival”) and Plaintiff decided to preach during the festival. (Pl.'s Br., Ex. 4, Pl.'s Resp. to Defs.' First Set of Interrogs. (Doc. 26-5) at 3-4.) Plaintiff alleges that, when he arrived at the Festival, he received a “sheet of paper” or “ordinance” detailing “festival rules.” (Pl.'s Dep. (Doc. 26-2) at 9.) In his deposition, Plaintiff explained that “[i]f you want to pass out literature or to speak on anything open, you had to have a booth. You had to be a vendor.” (Id.) Plaintiff did not elect to proceed as a “vendor, ” instead choosing to stand “outside of the barricade” to preach. (Id. at 10.) Plaintiff preached for over an hour before he was arrested.

         While preaching at the Festival, Plaintiff wore an audio recording device under his shirt. (Id. at 7-8.) One of Plaintiff's colleagues also filmed a video of some of the events that transpired on July 20, 2013. (Id. at 11.)

         ii. Audio Recording

         Plaintiff began preaching at the 6:55 mark[2] of the audio recording. (Defs.' Mem. of Law in Supp. of Defs.' Mot. for Summ. J. as to All Claims (“Defs.' Br.”) (Doc. 23), Ex. 7, Audio recording filed manually (Audio Disc) at 6:55.) At the 10:53 mark, Defendant Helms asked to talk to Plaintiff before informing Plaintiff that “you're more than welcome to be here, okay, but to be here, you have to purchase a booth.” (Id. at 11:00-11:05.) Upon Plaintiff's resistance, Defendant Helms read, from what he later described as the “rules and regulations for Farmers Day, ” the following:

Any person or group wishing to hand out materials or provide information to the public must register with the town of China Grove for a booth within the festival area. No person or group will be allowed inside the festival area to approach visitors with material, verbal, printed or otherwise, unless they register with the town of China Grove.

(Id. at 15:29-15:47.) Following an argument with Defendant Helms and another bystander regarding his First Amendment rights in which Defendant Helms told Plaintiff that if he did not move to the other side of the barricade he would be arrested, Plaintiff moved outside the barricade marking Festival grounds and resumed preaching. (Id. at 20:48.)

         During the time period between Plaintiff moving to the other side of the barricade and the span for which video footage exists, Plaintiff preached and interacted with festival attendees. (See id.) At multiple points, Plaintiff expressed a continued willingness to enter the barricade and an expectancy to “go to jail” as a result. (Id. at 26:56, 27:30, 28:40, 32:35, 38:30.) At the 32:16 point, Plaintiff told a festivalgoer that “there's video cameras all over [Defendants] right now.” (Id.) Plaintiff also expressed that he was “fixin' to cross the line here in a minute.” (Id. at 32:27.)

         Around the 45:28 mark, following a contentious exchange with a specific festivalgoer, Defendant Helms approached Plaintiff and said, “You're not gonna be disrespectful.” (Id.) Plaintiff responded, “Loud mouth rebellious ladies like this, she needs to keep her mouth quiet.” (Id. at 46:06-46:15.) Defendant Helms responded, “I'm gonna ask you one more time - don't start causing issue with the people. You can preach, but that has nothing to do with talking about people.” (Id. at 46:15-46:30.) Plaintiff then called the police officers “wicked, ” said Defendant Helms was “digging a hole deeper for hisself and deeper for hisself, ” and said to Defendant Helms, “You're wicked as hell, you're gonna be on your way to hell, officer.” (Id. at 47:58-48:07.) Plaintiff later called Defendant Helms “a sinner” and “wretched.” (Id. at 1:03:45.)

         Plaintiff continued to accost individual festivalgoers. (Id. at 57:58.) Plaintiff also said, “See I know most of you people, you'd love nothing more to come punch a preacher in his face. Oh, but you're not gonna do anything.” (Id. at 58:54.)

         The exchange leading to Plaintiff's arrest occurs from 1:08:09 to 1:09:35. Plaintiff begins:

Oh, God's gonna judge you, wicked sinner - I'm talking to you. All you ladies need to learn how to put on some clothes, too. I'm talkin' to her. I'm talkin' to your family members. And all of those ladies over there. The Bible says that a woman should dress modestly. See a lot of ladies out here dressed like tramps and whores and prostitutes today. The Bible says you dress modestly. Today all you ladies who's dressed half-nekkid out here.

(Id.) Defendant Helms interrupted him, “Sir, you cannot call people whores and prostitutes.” Plaintiff immediately responded, “The Bible says it calls ‘em whores and prostitutes.” (Id.) Defendant Helms said, “If you say that one more time, I'ma place you under arrest” and Plaintiff again immediately responded, “You can't be whores and prostitutes, you can't be.” (Id.)

         iii. Video Recording

         The video generally shows Plaintiff from behind, as it appears the videographer was standing some distance behind Plaintiff. The video shows Defendant Helms standing away and to the front of Plaintiff, inside the barricade and beside a car. At various times, as the camera pans from side to side, it appears that one or more police officers may be standing to Plaintiff's left, off the street and on the corner, several feet away from Plaintiff.

         During much of the time Plaintiff was preaching, he was forceful but did not appear to cause any fear in bystanders. An older woman using a walker walked past Plaintiff and appeared to pay him no attention. (Defs.' Br. (Doc. 23), Ex. 5, videotaped recording filed manually (Video Disc) at 01:55.) A young woman walked by and appeared to giggle after she passed him. (Id. at 2:36.) However, in the preaching preceding Plaintiff's arrest, his rhetoric, motions, and mannerisms could be construed to be more directed toward those standing and watching. Nevertheless, even assuming there to be issues of fact as to the events preceding Plaintiff's arrest, it does appear something occurred immediately preceding Plaintiff's arrest causing officers to respond.

         In the video, 14:42 marks the point where Plaintiff said, “Oh, God's gonna judge you, wicked sinner.” (Id. at 14:42.) As he said that phrase, Plaintiff extended his right arm parallel to the ground and pointed using his index finger in the direction of a group of people inside the Festival. (Id.) Plaintiff raised his finger and pointed again as he said “talkin' to her” at the 14:50 mark. (Id.) Plaintiff then said “talkin' to your family.” (Id. at 14:51.) Plaintiff then pointed again with his left arm and index finger in the same general direction as he said, “And all of those ladies over there . . . the Bible says that a woman should dress modestly.” (Id. at 14:54-14:49.) One second later in the video, beginning at 14:50, Plaintiff continued, “see a lot of ladies out here dressin' like tramps and whores and prostitutes.”

         At this point, Defendant Helms's daughter and wife turned and spoke to him. (Id. at 15:07.) Defendant Helms then spoke into his radio briefly before approaching Plaintiff. (Id. at 15:25.) When Defendant Helms reached Plaintiff, Defendant Helms said, “You cannot call [inaudible] ‘whores and prostitutes.'” (Id. at 15:30.) Defendant Helms then arrested Plaintiff following the exchange detailed above. (Id. at 15:40.)

         iv. Legal Proceedings

         In his deposition, Defendant Helms testified that he arrested Plaintiff for “disorderly conduct.” (Defs.' Br., Ex. 6, Excerpts from Dep. of Reese Helms (“Helms Dep.”) (Doc. 23-6) at 15.) On the same date as Plaintiff's arrest, July 20, 2013, Defendant Helms then brought Plaintiff before Magistrate G.L. Jones, who issued a “Warrant for Arrest.” (Id., Ex. 9, Arrest Warrant for Brian Douglas Cranford, Disorderly Conduct, GS 14-288.4, Case number 13-CR-054457 (“Arrest Warrant”) (Doc. 23-8) at 2.)

         The Arrest Warrant says the following:

I, the undersigned, find that there is probable cause to believe that on or about the date of offense shown and in the county named above the defendant named above unlawfully and willfully did intentionally cause a public disturbance at PARK ST AND MAIN ST (CHINA GROVE FARMERS DAY), by making utterances and using abusive language, intended and plainly likely to provoke immediate retaliation and thereby cause a breach of the peace. The acts of the defendant were directed toward HEAVEN LEE HELMS AND OTHER UNNAMED FEMALE PERSONS and consisted of THE DEFENDANT SHOUTING TO THE VICTIMS THAT THEY WERE WHORES AND PROSTITUTES, MAKING REFERENCE TO THE WAY THEY WERE DRESSED.

(Id.) The Arrest Warrant specifies the “Offense in Violation of G.S.” as “14-288.4.” (Id.) N.C. Gen. Stat. § 14-288.4 provides that “[d]isorderly conduct is a public disturbance intentionally caused by any person who . . . Makes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” N.C. Gen. Stat. § 14-288.4(a)(2).

         On January 29, 2014, the Honorable Marshall Bickett found Plaintiff guilty of the charged offense in North Carolina district court. Plaintiff was represented by counsel in the district court. On January 15, 2015, following an appeal to Superior Court for a trial de novo, a jury found Plaintiff not guilty of the same charged offense. (Defs.' Br. (Doc. 23) at 9; Pl.'s Dep. (Doc. 23-4) at 11.)

         B. Claims

         Plaintiff brings a total of three claims alleging violations of his constitutional rights. (Complaint (“Compl.”) (Doc. 1) at 13-18.) Plaintiff's first claim alleges that Defendants violated his First Amendment “right to Freedom of Speech” by arresting him. (Id. ¶¶ 102-10.) Plaintiff's second claim alleges that Defendants violated his First Amendment right to free exercise of religion by arresting him. (Id. ¶¶ 111-24.) Plaintiff's third claim alleges that Defendants violated the Fourth Amendment by arresting him without probable cause. (Id. ¶¶ 125-35.)

         For each claim, Plaintiff requests relief in the form of damages compensating him for the allegedly wrongful deprivation of his rights, paid bail, attorneys' fees for defending his criminal prosecution, mental distress, reputational damage, and other harms. (Id. ¶¶ 110, 124, 135.) In addition to money damages, Plaintiff requests relief in the form of an injunction preventing Defendants “and all persons acting in concert . . . from enforcing the Code in the manner [Defendants] enforced it against this Plaintiff.” (Id. at 19.)

         Notwithstanding the description of claims under free speech and free exercise of religion as set forth above, the summary judgment briefing presents a serious issue with respect to the nature of the free exercise claims brought by Plaintiff in his Complaint. Specifically, the issue is whether Plaintiff's Complaint only alleges claims based upon an interference with or retaliation for the exercise of First Amendment rights as a result of Plaintiff's arrest or whether Plaintiff has also asserted a claim based upon an unconstitutional prior restraint through the Festival Rules. As explained in full below, after supplemental briefing and oral arguments on this issue, this court finds that the claims relating to the Festival Rules are not properly before this court, and that, even if considered, these claims are all subject to dismissal on the record before this court.


         Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates that no genuine issue of material facts exists, thus entitling the moving party to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the burden of initially demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

         If the moving party has met that burden, then the nonmoving party must persuade the court that a genuine issue remains for trial. However, this requires “more than simply show[ing] that there is some metaphysical doubt as to the material facts”; the “nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations and footnote omitted) (quoting Fed.R.Civ.P. 56). In considering a motion for summary judgment, the court is not to weigh the evidence, but rather must determine whether there is a genuine dispute as to a material issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

         Nonetheless, the court must ensure that the facts it considers can be “presented in a form that would be admissible in evidence” and that any affidavits or evidence used to support or oppose a motion are “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” See Fed.R.Civ.P. 56(c)(2), (4).

         The court must view the facts in the light most favorable to the nonmoving party, drawing inferences favorable to that party if such inferences are reasonable. Anderson, 477 U.S. at 255. However, there must be more than a factual dispute; the fact in question must be material, and the dispute must be genuine. Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 248. A dispute is only “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         III. ANALYSIS

         Defendants argue that this court should grant their Motion for Summary Judgment because they “are entitled to qualified immunity on each of Plaintiff's constitutional claims.”[3] (Defs.' Br. (Doc. 23) at 10-21.) Plaintiff responds that Defendants are not entitled to immunity because the magistrate's issuance of an arrest warrant and Plaintiff's conviction were “obtained by unfair means, namely, false information.” (Pl.'s Br. in Opp'n to Defs.' Mot. for Summ. J. (“Pl.'s Opp'n Br.”) (Doc. 31) at 27.)

         “In determining whether a defendant is entitled to qualified immunity, [this court] must decide (1) whether the defendant has violated a constitutional right of the plaintiff and (2) whether that right was clearly established at the time of the alleged misconduct.” Ross v. Early, 746 F.3d 546, 560 (4th Cir. 2014) (citing Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013)); see also Maney v. Garrison, 681 F. App'x 210, 224 (4th Cir. 2017). Courts “have discretion to decide which of those questions to address first ‘in light of the circumstances in the particular case at hand.' In many cases it is beneficial to determine first whether the facts establish a violation of the Constitution.” Maney, 681 F. App'x at 215 (quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)) (citing Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 899-900 (4th Cir. 2016)). “A defendant is entitled to qualified immunity if the answer to either question is ‘no.'” Williams v. Hall, No. 5:11-CV-279-D, 2013 WL 3200512, at *3 (E.D. N.C. June 24, 2013) (first citing Reichle v. Howards, 566 U.S. 658, 663 (2012); then citing Pearson, 555 U.S. at 236). “The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson, 555 U.S. at 231 (internal quotation marks omitted).

[A] defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. . . . “[E]xisting precedent must have placed the statutory or constitutional question” confronted by the official “beyond debate.”

Plumhoff v. Rickard, 572 U.S.___, ___, 134 S.Ct. 2012, 2023 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “When deciding whether a right is clearly established, we ask ‘whether it would be clear to a reasonable official that his conduct was unlawful in the situation he confronted.'” Occupy Columbia v. Haley, 738 F.3d 107, 124 (4th Cir. 2013) (quoting Henry v. Purnell, 652 F.3d 524, 534 (4th Cir. 2011)).

         Plaintiff brings three constitutional claims, but each of Plaintiff's claims rests upon his contention that Defendant Helms arrested him without probable cause. It may be that the audio and video leave some facts subject to a dispute. Nevertheless, Defendants' Motion for Summary Judgment is based primarily upon undisputed facts: (1) Plaintiff was arrested and charged with a violation of N.C. Gen. Stat. § 14-288.4; (2) upon appearance before a state magistrate, a warrant was issued for Plaintiff's arrest, charging that offense; and (3) Plaintiff was convicted in state district court following a bench trial of a violation of N.C. Gen. Stat. § 14-288.4.

         A. Festival Rules and Unconstitutional Time and Place Restrictions

         At the outset, this court finds it necessary to determine whether the Festival Rules in question are properly before the court. Plaintiff dedicates a significant portion of his briefing to arguing that the Festival Rules requiring Plaintiff to remain behind the barricade or purchase a booth as a vendor placed an unconstitutional restraint on speech for which Defendants are liable. (See Pl.'s Br. (Doc. 26) at 9-20; Pl.'s Opp'n Br. (Doc. 31) at 8-13.) Plaintiff argues that Defendant Helms's act of advising Plaintiff of those Rules and then requiring that Plaintiff move outside the Festival barricade infringed Plaintiff's First Amendment rights. (See id.) Defendants object to this argument and claim, arguing that:

Plaintiff alleges in his Motion for Summary Judgment that the Town's Festival Regulations, as applied to him, violated his free speech rights and free exercise rights under the First Amendment. See Doc. 26, pp. 9-20. However, Plaintiff's Complaint shows that he alleged only that Defendants' enforcement of N.C. G.S. § 14-288.4 violated his First Amendment rights. See Doc. 1, ¶¶ 2, 28, 29, 39, 70-82, 84, 89, 92, 95, 99, 100, 105, 108, 113, 115, 121, 122, and Prayer for Relief.

(Defs.' Resp. in Opp'n to Pl.'s Mot. for Summ. J. (“Defs.' Resp. in Opp'n”) (Doc. 34) at 25 (footnote omitted).) Defendants contend any issues with respect to the Festival Rules are not properly before the court. (Id. at 2.) This court agrees with Defendants that the Complaint does not allege a claim based upon the Festival Rules as an unconstitutional prior restraint, either time or place, of speech.

         The confusing nature of Plaintiff's claims begins with the use of the term “Code” in the Complaint and the apparent limitation of the claims to injury and damages arising solely from enforcement of the “Code.” In his Complaint, Plaintiff identifies only N.C. Gen. Stat. § 14-288.4 as the relevant “Code” provision by which he was deprived of his constitutional rights. (Doc. 1 at 1) (“This action challenges the interpretation and enforcement (as-applied challenge) of North Carolina General Statutes, § 14-288.4 (hereinafter ‘Code')”.) N.C. Gen. Stat. § 14-288.4 is a criminal statute and very different from any rules of the Festival. N.C. Gen. Stat. § 14-288.4 is clearly not the source of any rule of the Festival requiring Plaintiff, and others distributing information, to register as a vendor.

         Following identification of the relevant “Code” provision in his Complaint, Plaintiff alleges a number of actions arising from and related to enforcement of the “Code.” Plaintiff's Complaint alleges Plaintiff was exercising his rights outsidethe Festival and in ...

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