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Shook v. City of Lincolnton

United States District Court, W.D. North Carolina, Statesville Division

August 29, 2019

JEREMY SEAN SHOOK AND JEFFREY DEAN SHOOK, Plaintiffs,
v.
CITY OF LINCOLNTON, NC, et al. Defendants.

          ORDER

          KENNETH D. BELL, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Plaintiffs Jeremy Shook and Jeffrey Shook's (collectively, “Plaintiffs”) Motion for Preliminary Injunction (Doc. No. 11.) For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion.

         I. RELEVANT BACKGROUND

         This civil rights action is based on Plaintiffs' allegations that the City of Lincolnton, North Carolina (“the City”) and certain City officials (“Individual Defendants”) (collectively, “Defendants”), through the adoption and enforcement of two city ordinances, are interfering with Plaintiffs' First Amendment rights of free speech and free exercise of religion. Plaintiff also asserts the Defendants violated the Fourth and 14th Amendments and three provisions of the North Carolina constitution. Plaintiffs assert a total of ten claims against the City:

a) Count I - Violation of 42 U.S.C. § 1983 based on the contention that Section 103.05(B)(3) is facially unconstitutional
b) Count II - Violation of 42 U.S.C. § 1983 based on the contention that Section 103.05(B)(3) is unconstitutional as applied to Plaintiffs
c) Count III - Violation of 42 U.S.C. § 1983 based on the contention that Section 93.016(I) is facially unconstitutional
d) Count IV - Violation of 42 U.S.C. § 1983 based on the contention that Section 93.016(I) is unconstitutional as applied to Plaintiffs
e) Count V - Violation of Article I, § 13 of the North Carolina Constitution based on the contention that the City interfered with Plaintiffs right to freely exercise religion
f) Count VI - Violation of Article I, § 14 of the North Carolina Constitution based on the contention that the City interfered with Plaintiffs right to freedom of speech
g) Count VII - Violation of 42 U.S.C. § 1983 based the contention that Section 93.016(I) and Section 103.05(B)(3) are vague and overbroad in violation of the 14th Amendment of the U.S. Constitution, and also applied in an unconstitutional manner
h) Count VIII - Violation of Article I, § 19 of the North Carolina Constitution based the contention that Section 93.016(I) and Section 103.05(B)(3) are vague and overbroad, and also applied in an unconstitutional manner
i) Count IX - Violation of 42 U.S.C. § 1983 based on contention that the City unreasonably seized and prosecuted Plaintiff Jeffrey Shook in violation of the Fourth Amendment of the U.S. Constitution
j) Count X - Malicious prosecution

         Plaintiffs also assert a claim for violation of 42 U.S.C. § 1983 based on alleged violations of the First, Fourth, and Fourteenth Amendments of the U.S. Constitution against the Individual Defendants.

         The Complaint alleges that Plaintiffs are professing Christians whose religious beliefs compel them to “publicly share what they believe.” (Doc. No. 1, ¶¶ 13, 14.) Plaintiffs allege that to accomplish this, they “have been preaching on the City's public streets or sidewalks for approximately 19 years, particularly at public festivals or gatherings.” (Id., ¶ 15.) They allege they “use no amplification when they preach” and “do not block ingress or egress to streets, sidewalks, or buildings, and do not otherwise follow, confront, harass, or otherwise interfere with other individuals.” (Id., ¶¶ 17, 19.) The City submitted declarations to the Court in support of its opposition to Plaintiffs' motion that establish there is a dispute regarding Plaintiffs' description of their conduct while preaching.

         Plaintiffs allege that they received citations for violating two city ordinances on May 31, 2018, while they were preaching at a weekly public event (the “Alive After Five Festival”) in downtown Lincolnton. (Id.¶ 21-25.) The citations stated that Plaintiffs violated § 130.05, titled “Special Events and Festivals, ” (“Special Event Ordinance”) and § 93.016, titled “Unnecessary Noise Prohibited Specifically” (“Unnecessary Noise Ordinance”). (Id., ¶¶ 26-29.) The Special Event Ordinance provides:

(B) During the time and area so designated, the following activities shall be forbidden:
(3) Any conduct deemed to be disruptive or dangerous to participants or attendees of the special event. Abusive or threatening language that disrupts a special event or festival or that abuses or threatens another person in a manner likely to cause a fight or brawl at a special event or festival is prohibited. Noise Ord. 93.016(I) also applies.

         At the time Plaintiffs received these citations, the Unnecessary Noise Ordinance provided:

The following acts, among others, are hereby declared to create loud, disturbing and unnecessary noises in violation of this code, but the enumeration shall not be deemed to be exclusive:
(I) Any person or group of persons willfully making any loud, raucous, or disturbing sound that - because of its volume, duration, and character - annoy, disturb, frighten, injure, or endanger the comfort, health, peace, or safety of reasonable persons of ordinary ...

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