North Carolina Lawyers Weekly

Benham v. City of Charlotte The defendant-city refused to close an uptown Charlotte street for five consecutive business days so plaintiffs could sell kettle corn and soft drinks to their anticipated 200 “festival” participants; the city’s application of its ordinance did not affect the expressive part of plaintiffs’ event and so did not violate plaintiffs’ rights to free speech or religious freedom. Defendants’ motion for summary judgment is granted. Defendant Cantrell, the city’s permit official, stated in the denial letter that her decision was based upon her review of the application and “experience with [plaintiffs’] organization, Operation Save America.” Cantrell went on to say that her “experience has been witnessing demonstrative activities and expressive speech focused on the topics of abortion and homosexuality.” Cantrell’s denial letter does not condemn or express any viewpoint whatsoever on plaintiffs’ speech. It merely states that she is using her experience in determining which rule of law in the Charlotte City Code applied to plaintiffs’ application. Based upon this experience, she correctly concluded that plaintiffs’ event should be treated as a “demonstration” rather than a “festival” within the meaning of the city’s public assembly ordinance, and that plaintiffs did not need a permit. Courts have consistently recognized that a city has a legitimate interest in maintaining the safety, order, and accessibility of its streets and sidewalks. Defendants’ application of relevant provisions of the Charlotte City Code to plaintiffs’ festival permit application was narrowly tailored to serve this significant governmental interest. Plaintiffs were not told that they could not hold their event at all, but that they could not demand that the city close down a major street in the middle of uptown Charlotte during business hours for five consecutive business days simply so plaintiffs could sell kettle corn and soft drinks in the street for an estimated crowd of 200 people. In other words, only the non-expressive proposed activities were denied by defendants.

Thigpen v. Cooper Plaintiffs challenge the constitutionality of several N.C. marriage statutes pursuant to 42 U.S.C. § 1983; however, the state is not a “person” within the meaning of § 1983. Plaintiffs have sued the attorney general in his official capacity only, and they have made no showing that the attorney general plays any role in the enforcement of the statutes they challenge; consequently, plaintiffs have failed to demonstrate that the attorney general has engaged in an ongoing violation of the U.S. Constitution and therefore not established that he is a “person” for purposes of § 1983.

Baysden v. State Where our Court of Appeals held, The trial court erred by granting the state’s summary judgment motion and denying the summary judgment motion filed by plaintiff since he has a right under N.C. Const. art. I, § 30 to possess a firearm despite the prohibition set out in G.S. § 14-415.1, the Court of Appeals’ decision stands without precedential value.

Brown v. Town of Cary A resident of Cary, N.C., loses his constitutional challenge to a local sign ordinance, cited by the town to demand removal of a sign painted on the resident’s house saying “Screwed by the Town of Cary”; the 4th Circuit reverses the district court decision for the resident, and says the Cary sign ordinance is content neutral and passes constitutional scrutiny.

Center for Individual Freedom Inc. v. Tennant, Sec’y of the State of W. Va In a challenge by plaintiff advocacy groups, the Center for Individual Freedom and West Virginians for Life, to the district court’s decision interpreting West Virginia’s statutory scheme to regulate advocacy groups’ spending in political campaigns, the 4th Circuit upholds the district court decision to strike periodicals from the definition of “electioneering communications” and upholds the definition’s exclusion of grassroots lobbying, but reverses other portions of the lower court decision.

Johnston v. State Assuming, without deciding, that the Second Amendment protects a convicted felon’s right to bear arms, we will apply the intermediate level of scrutiny to determine whether the N.C. Firearms Act violates plaintiff’s substantive due process rights. The state must have an opportunity to present evidence and argument to show a reasonable fit and substantial relationship between its goal – public safety -- and the Act.

Tagged with: Firearms

Hest Technologies, Inc. v. State ex rel. Perdue Which bans the operation of electronic machines that conduct sweepstakes through the use of an “entertaining display,” regulates conduct and only incidentally affects speech.

Tagged with: sweepstakes

Sandhill Amusements, Inc. v. State For the reasons stated in Hest Technologies, Inc. v. State ex rel. Perdue, digested above, the decision of the Court of Appeals is reversed.

Tagged with: appeal

Kelly v. Riley While courts have consistently held that the Second Amendment protects an individual’s right to possess a weapon, courts have also found that the Second Amendment does not extend to an individual’s right to conceal a weapon.

Elabanjo v. Bellevance Even though plaintiff’s district-court conviction of being drunk and disorderly was overturned on appeal, the conviction conclusively establishes that the defendant-police officers had probable cause to arrest plaintiff on those charges.

Tagged with: Civil Rights Constitutional First Amendment Fourth Amendment