Norris v. City of Asheville

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:23-cv-00103-MR-WCM

SARAH BODDY NORRIS, )

ABIGAIL TEMOSHCHUK-REYNOLDS, )

AMY HAMILTON, ELIZABETH )

FLICKINGER, ELSA ENSTROM, )

ERICA DEATON, GINA DICKHAUS, )

JULIA WEBER, KARA ROBERTS, )

NICOLE MARTINEZ, NICOLE )

MATUTE-VILLAGRANA, NORA )

WATKINS, PAGEANT NEVEL, )

KATHRYN HUDSON, )

and ALEXANDER BERGDAHL, )

)

Plaintiffs, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

CITY OF ASHEVILLE, DEBRA )

CAMPBELL, D. TYRELL MCGIRT, )

and DAVID ZACK, )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on the Defendants’ Motion to

Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) [Doc. 8].

I. PROCEDURAL BACKGROUND

On April 18, 2023, Plaintiffs Sarah Boddy Norris, Abigail Temoshchuk-

Reynolds, Amy Hamilton, Elizabeth Flickinger, Elsa Enstrom, Erica Deaton,

Gina Dickhaus, Julia Weber, Kara Roberts, Nicole Martinez, Nicole Matute-

Villagrana, Nora Watkins, Pageant Nevel, Kathryn Hudson, and Alexander

Bergdahl (“Plaintiffs”) filed this action against Defendants City of Asheville;

Debra Campbell, in her official capacity as Asheville City Manager; D. Tyrell

McGirt, in his individual capacity and official capacity as Director of the

Asheville Parks and Recreation Department; and David Zack, in his official

capacity as Chief of Police of the Asheville Police Department

(“Defendants”). [Id.]. The Plaintiffs claim that they have been banned from

Asheville city parks in violation of the First and Fourteenth Amendments of

the U.S. Constitution and Article I, Sections 12, 14, and 19 of the North

Carolina Constitution. [Id.]. The Plaintiffs seek relief in the form of a

declaratory judgment that the city’s policies are unconstitutional as applied

to the Plaintiffs, preliminary and permanent injunctions, nominal damages,

and attorneys’ fees. [Id.].

On June 29, 2023, the Plaintiffs filed an Amended Complaint, asserting

an additional claim under the First and Fourteenth Amendments and

providing additional factual allegations. [Doc. 6].

On July 13, 2023, the Defendants filed a Motion to Dismiss the

Plaintiffs’ Amended Complaint for failure to state claim upon which relief can

be granted. [Doc. 8]. The Plaintiffs filed a Response to the Motion to Dismiss

[Doc. 10] on August 3, 2023, and the Defendants filed a Reply to the

Plaintiffs’ Response on August 10, 2023 [Doc. 11].

Having been fully briefed, this matter is now ripe for disposition.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678.

The purpose of Rule 12(b)(6) “is to test the sufficiency of a complaint

and not to resolve contests surrounding the facts, the merits of a claim, or

the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d

480, 483 (4th Cir. 2006) (citation and internal quotation marks omitted).

When deciding a motion to dismiss under Rule 12(b)(6), a court “must accept

as true all of the factual allegations contained in the complaint,” and must

“draw all reasonable inferences [from those facts] in favor of the plaintiff.”

E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th

Cir. 2011) (citations and internal quotation marks omitted). The Court need

not, however, accept unsupported legal allegations, see Revene v. Charles

Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched

as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or

conclusory factual allegations devoid of any reference to actual events,

United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir.

1979).

III. FACTUAL BACKGROUND

The Plaintiffs are all current or former residents of Asheville, North

Carolina, and have all been involved in providing assistance, such as meals,

to Asheville’s homeless population. [Doc. 6 at ¶¶ 8-22, 42]. In January 2022,

all Plaintiffs were charged with felony littering1 under N.C. Gen. Stat. § 14-

399 in connection with their participation in protests that took place in

December 2021 in city parks advocating for Asheville to allow sanctuary

camping for homeless people. [Id. at ¶¶ 42, 43]. These charges remain

pending against Plaintiffs Norris, Hamilton, Flickinger, Dickhaus, Weber,

Watkins, Deaton, Roberts, Hudson, Martinez, Matute-Villagrana, and Nevel.

1 Under North Carolina law, “littering” occurs when a person or entity “intentionally or

recklessly throw[s], scatter[s,] spill[s] or place[s] or intentionally or recklessly cause[s] to

be blown, scattered, spilled, thrown or placed or otherwise dispose[s] of any litter upon

any public property or private property not owned by the person,” except when the litter

is deposited in a space designated for litter (like a dump or garbage receptacle). N.C.

Gen. Stat. § 14-399(a). Any person who commits littering “in an amount exceeding 500

pounds or in any quantity for commercial purposes, or who discards litter that is a

hazardous waste” is guilty of a felony. Id. § 14-399(e).

[Id. at ¶ 43]. Plaintiffs Enstrom, Temoshchuk-Reynolds, and Bergdahl all

pled to lesser misdemeanor charges in January 2023. [Id.]. All Plaintiffs

maintain that the charges against them are baseless. [Id. at ¶¶ 44, 45].

In March 2022, several of the Plaintiffs started receiving notices that,

effective December 25, 2021, they had been banned from all city parks and

recreation facilities for a period of three years based on their felony littering

charges. [Id. at ¶ 47]. These notices were issued pursuant to the City of

Asheville’s “Restricted Access to City Parks” administrative policy (“the

Policy”). [Id. at ¶¶ 27, 47]. The Policy states that:

A person’s access to a City parks may be restricted

if that person violates any of the following while in a

City park or on City property: City park rule, City

Parks and Recreation Department program rule, City

ordinance, State law, Federal law.

A person who violates any of the above while in a

City park may be issued a restricted access notice.

This notice may be issued by any employee of the

City’s Parks and Recreation Department (“Parks

Department”) or the Asheville Police Department

(“APD”) upon an observed violation of any Park rule.

This notice may also be provided by a member of the

APD at the time of arrest or citation for any

misdemeanor or felony offense committed in a City

park.

The length of restriction imposed shall be as follows:

1. Violation of any park rule or Parks and Recreation

Department program rule – 6 months. 2. Violation of

any City ordinance or the commission of any offense

punishable as a misdemeanor under federal or state

law – 1 year. 3. The commission of any offense

punishable as a felony under federal or state law,

repeated violation of Park rules, and/or repeated

commission of misdemeanor offenses – 3 years.

[Doc. 6-1: Policy at 2-3].

The Policy does not require an underlying citation, ticket, charge,

indictment, or conviction to ban an individual from city parks, nor does it

require any documentation of the alleged violation for a ban to be issued.

[Doc. 6 at ¶ 27]. Regarding notification, the Policy states:

Any notice provided to a person that their access to

City parks has been restricted will state (1) the

reason why their access is restricted, (2) the length

of the restriction, (3) that the person will be subject to

arrest for trespassing if they enter a City park and/or

recreation facility, and (4) information about how to

appeal the restriction.

The name of the individual whose access is being

restricted will be added to the City parks restricted

access list which will be maintained by the APD

and/or the City recreational facilities restricted

access list which will be maintained by the Parks

Department. The APD and/or Parks Department will

update the restricted access list when new names

are added or removed. . . . The restricted access list

shall be made available to citizens upon request.

[Doc. 6-1 at 3-4].

Individuals subject to a park ban are not entitled to notice or a pre-

deprivation hearing under the Policy. [Doc. 6 at ¶¶ 31, 35]. With regard to

appeals, the Policy states:

An individual may appeal this decision in writing

within 14 calendar days of the date of the restricted

access notice. . . . All appeals must be addressed

and delivered to the Asheville Parks and Recreation

Department to the attention of the Parks and

Recreation Director.

Scheduling of an appeal hearing shall be completed

within 14 days of receipt of the written appeal and

notification of the date of the appeal hearing will be

mailed to the address provided by the person in

his/her written appeal.

Appeals will be heard by the Parks and Recreation

Director or his/her designee. Upon receipt of a timely

and valid appeal, the Parks and Recreation Director

will hear whatever relevant evidence the person

appealing the restriction may wish to present, and

based on that evidence, may dismiss the restriction,

uphold the restriction as imposed at the time of

notice, or uphold the restriction but modify the

duration for which the restriction is effective.

The Parks and Recreation Director shall issue and

serve a written decision on such appeal within 14

days of the date of the hearing. . . . Decisions of the

Parks and Recreation Director are final upon

issuance.

The restriction from City parks and/or recreational

facilities will remain in effect throughout the appeals

process.

[Doc. 6-1 at 4] (emphasis added). If a banned individual enters a city park

or commits another violation under the policy, his ban is automatically

extended by one year in addition to any extension based on the violation,

and he may also be criminally charged with trespass. [Id. at 2-3].

In accordance with the Policy, none of the Plaintiffs had an opportunity

to object or be heard before the bans were imposed, and three of the

Plaintiffs—Deaton, Nevel, and Bergdahl—were not made aware of their park

bans until nearly a year later. [Doc. 6 at ¶¶ 48-49]. These three Plaintiffs

therefore allege that they did not have an opportunity to appeal their bans

and continued to visit city parks until they learned of their bans,2 thereby

unknowingly subjecting themselves to arrest and additional penalties. [Id. at

¶¶ 49-50]. Plaintiffs Norris, Temoshchuk-Reynolds, Hamilton, Flickinger,

Enstrom, Dickhaus, Hudson, Martinez, Matute-Villagrana, and Watkins were

all able to timely appeal their bans. [Id. at ¶ 53]. Each was given a short

hearing presided over by Defendant McGirt as well as Deputy City Attorney

John Maddux, Asheville Police Captain Mike Lamb, Asheville Police Officer

Sam DeGrave, and Parks and Recreation Program Manager Christy Bass.

[Id.].

Before any appeals hearings were held, Captain Lamb sent an email

to Defendant McGirt and recommended that Defendant McGirt uphold the

Plaintiffs’ park bans. [Id. at ¶ 54]. Defendant McGirt responded, “My

decision is to uphold the APD suspension,” referring to the Plaintiffs’

2 Although not clearly pled, the Court will infer that the Plaintiffs claim that they never

received official notice of their bans, and thus conclude that they had no appeal rights.

suspension from city parks imposed by the Asheville Police Department. [Id.;

Doc. 6-3: McGirt Emails at 2]. At their hearings, the Plaintiffs were not

permitted to ask questions or review the evidence against them, and the

presiding officials did not make any findings or render a decision. [Doc. 6 at

¶¶ 55-56]. Shortly after the hearings, Defendant McGirt sent all ten Plaintiffs

who had appealed their bans a short form letter upholding the bans; the

letters did not include findings, reasoning, or any evidence in support of

upholding the bans. [Id. at ¶ 56].

After their bans were upheld, Plaintiffs Temoshchuk-Reynolds,

Enstrom, and Bergdahl pled to lesser misdemeanor charges in order to avoid

employment consequences from the felony charge.3 [Id. at ¶¶ 61-62].

Plaintiff Enstrom chose to plead to a lesser charge so that she could maintain

a professional license required for her job as a veterinary technician. [Id. at

¶ 62]. Plaintiff Temoshchuk-Reynolds similarly pled to a lesser charge so as

to not jeopardize future employment opportunities. [Id.]. Plaintiff Bergdahl

pled to a lesser charge because his job requires him to be in parks, and he

hoped to have his ban reduced to one year pursuant to the Policy. [Id. at

¶ 62]. Despite these Plaintiffs’ misdemeanor pleas, the three-year park bans

have remained in place. [Id. at ¶ 63].

3 Plaintiff Bergdahl alleges he did not appeal his ban. [Doc. 6 at ¶ 50].

The Plaintiffs allege that their park bans have had a serious effect on

their professional and personal lives. [Doc. 6 at ¶ 66]. This includes their

ability to continue volunteer work, to carry out job and family responsibilities,

and to access public spaces in Asheville to recreate, assemble, and carry

out political and social protest and speech. [Id. at ¶ 67]. Plaintiff Bergdahl,

for example, works for an Asheville-based food justice nonprofit, where he

regularly works in city parks “to build community gardens, conduct

educational workshops promoting food justice, and organize community

support for edible gardens in Asheville parks.” [Id. at ¶ 70]. Plaintiff Bergdahl

alleges that he can now not perform at least half of his job responsibilities

and is at risk of losing his job. [Id.]. Plaintiff Martinez is an after-school

teacher and babysitter and can no longer take the children under her care to

field trips in the park; instead, she must ask colleagues to fill in for her and

has stopped her babysitting work altogether. [Id. at ¶ 72]. Plaintiffs Norris

and Deaton are both parents and have been unable to take their children to

city parks. [Id. ¶¶ 75-76]. Plaintiffs Roberts and Matute-Villagrana both

decided to move out of Asheville following their bans because they felt

targeted and surveilled by city officials and wanted to be able to access parks

again. [Id. at ¶¶ 77-78].

The Plaintiffs also allege that they have been deterred from going to

city council meetings held at parks and recreation facilities, including

meetings regarding the city’s response to homelessness. [Id. at ¶ 68]. The

Plaintiffs are concerned that even after the expiration of their bans, they will

be subjected to future bans as a result of their protests against city policies

and their support of the homeless population. [Id. at ¶ 80]. The Plaintiffs

further allege that the Asheville Police Department has not investigated or

charged other known parties with felony littering in instances where city staff

cleaned up large amounts of trash, including one instance involving over

15,000 pounds of trash. [Id. at ¶ 58].

On these allegations, the Plaintiffs bring four federal constitutional

claims pursuant to 42 U.S.C. § 1983: (1) violations of their Fourteenth

Amendment right to due process against all Defendants; (2) violations of their

First and Fourteenth Amendment rights to gather, associate, and protest

against all Defendants; (3) violations of their First and Fourteenth

Amendment rights to speech and assembly, including equal protection

violations and retaliatory and selective enforcement against all Defendants;

and (4) violations of their Fourteenth Amendment rights to due process

based on vagueness against all Defendants in their official capacities. [Doc.

6]. The Plaintiffs also bring two claims under Article I of the North Carolina

Constitution: (1) violations of Section 19 rights of procedural due process,

vagueness, and equal protection; and (2) violations of Section 12 and 14

rights of assembly and free speech, both against all Defendants in their

official capacities. [Id.]

IV. DISCUSSION

A. Section 1983 Claims

“Under 42 U.S.C. § 1983, a plaintiff must establish three elements to

state a cause of action: (1) the deprivation of a right secured by the

Constitution or a federal statute; (2) by a person; (3) acting under color of

state law.” Jenkins v. Medford, 119 F.3d 1156, 1159–60 (4th Cir. 1997).

As an initial matter, the Court notes the three Plaintiffs who have pled

guilty to misdemeanor charges—Temoshchuk-Reynolds, Enstrom, and

Bergdahl—may not bring a § 1983 claim that would have the effect of

challenging the validity of their convictions. Heck v. Humphrey, 512 U.S.

477, 487 (1994). “Heck v. Humphrey bars a § 1983 action if it is clear from

the record that its successful prosecution would necessarily imply that the

plaintiff’s earlier conviction was invalid. The Heck analysis requires a close

factual examination of the underlying conviction.” Riddick v. Lott, 202 F.

App’x 615, 616 (4th Cir. 2006).

The crux of these Plaintiffs’ claim is not that their misdemeanor

convictions were invalid, but rather that because of their pleas, their park

bans should have ended after one year, on December 25, 2022. [Doc. 6 at

¶¶ 61-63]. The Policy provides that a misdemeanor gives rise to only a one-

year ban rather than the three-year ban imposed for a felony. [Doc. 6-1:

Policy at 2-3]. Therefore, these Plaintiffs seek only to vacate the remaining

portion of their ban that currently extends to December 25, 2024. As such,

even if these Plaintiffs were to prevail on their § 1983 claims, their

misdemeanor convictions would still stand, just as Heck requires.

Because the Plaintiffs’ claims present multiple constitutional issues,

each will be discussed in turn.

1. First Claim for Relief – Due Process

The Fourteenth Amendment’s due process clause provides that no

person shall be deprived of “life, liberty, or property, without due process of

law.” U.S. Const. Amend. XIV. To establish a procedural due process

violation under Section 1983, a plaintiff must show (1) that he has been

deprived of a cognizable liberty interest and (2) that such deprivation

occurred without adequate procedural protections. Swarthout v. Cooke, 562

U.S. 216, 219 (2011). At a minimum, procedural due process requires “fair

notice” of impending governmental action and “an opportunity to be heard.”

Snider Int’l Corp. v. Town of Forest Heights, 739 F.3d 140, 146 (4th Cir.

2014).

The Supreme Court has recognized the right to access parks and other

spaces open to the public as well as the First Amendment rights implicated

by such access. City of Chicago v. Morales, 527 U.S. 41 (1999) (plurality

opinion) (“[A]n individual’s decision to remain in a public place of his choice

is as much a part of his liberty as the freedom of movement inside frontiers

that is a part of our heritage, or the right to move to whatsoever place one’s

own inclination may direct.” (internal quotations and citations omitted)); Perry

Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“[S]treets

and parks . . . ‘have immemorially been held in trust for the use of the public,

and . . . have been used for purposes of assembly, communicating thoughts

between citizens, and discussing public questions.’” (quoting Hague v. CIO,

307 U.S. 496, 515 (1939))).

The Plaintiffs here allege they have been prohibited from accessing

any city parks or travel throughout the city greenways since the imposition of

their bans. [Doc. 6 at ¶ 100]. The Plaintiffs further allege that this prohibition

has impacted their First Amendment rights, as they were all involved in

advocacy efforts that take place in city parks, as well as their ability to do

their jobs and care for their families. [Id. at ¶¶ 68-76]. The Plaintiffs have

therefore sufficiently alleged a deprivation of a cognizable liberty interest in

their First Amendment rights to access and gather in public parks.4

The Court must next determine whether the Plaintiffs have sufficiently

alleged that they were not afforded “an opportunity to be heard” before being

deprived if such a liberty interest. Snider, 738 F.3d at 146. The adequacy of

the opportunity to be heard is governed by a three-step inquiry: “a balancing

of the private interest and the public interest, along with ‘the risk of an

erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards.’” Id.

at 146 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Due

process requires that the hearing “must be a real one, not a sham or a

pretense.” Jt. Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164

(1951) (Frankfurter, J., concurring) (quoting Palko v. Connecticut, 302 U.S.

319, 327 (1937)).

On its face, the Policy provides no requirement of an opportunity to be

heard before bans take effect, only for appeals hearings once notice is

provided. [Doc. 6-1 at 3-4]. During their appeals hearings, the Plaintiffs were

not permitted to ask questions or review the evidence against them; they

4 The alleged deprivation of Plaintiff’s First Amendment rights is discussed further in the

next section.

were also not provided any findings or reasoning in support of their appeals

being denied. [Id. at ¶¶ 55-56]. The procedures employed by the

Defendants create a substantial risk of an erroneous deprivation given that

individuals can be banned from parks based solely on “observations” of park

rule violations even though they may be denied the opportunity to question

the officials banning them on what the basis for their bans are. Based on the

alleged facts, the probable value of additional procedural safeguards, even

minimal ones, is considerable, as requiring hearings before a decision is

issued or allowing an individual to question the officer imposing the ban

would substantially reduce the likelihood of an individual being issued a ban

mistakenly or without cause. Moreover, the Plaintiffs allege that Defendant

McGirt explicitly told Asheville Police Captain Lamb that he had decided to

uphold the bans even before the hearings were held, which would further

suggest that the hearings were merely a pretense and not bona fide

opportunities for the Plaintiffs to be heard. [Id. ¶ 54]. For the foregoing

reasons, the Defendants’ Motion to Dismiss fails with respect to the Plaintiffs’

procedural due process claims.

2. Second Claim for Relief – Freedom of Association

“[T]he Court has recognized a right to associate for the purpose of

engaging in those activities protected by the First Amendment—speech,

assembly, petition for the redress of grievances, and the exercise of religion.”

Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). Indeed, “a

constitutionally protected right to associate for expressive purposes exists if

the activity for which persons are associating is itself protected by the First

Amendment.” Willis v. Town of Marshall, N.C., 426 F.3d 251, 258 (4th Cir.

2005). Particularly “[i]n places which by long tradition or by government fiat

have been devoted to assembly and debate, the rights of the state to limit

expressive activity are sharply circumscribed.” Perry Educ. Ass’n, 460 U.S.

at 45. “The right to associate for expressive purposes is not, however,

absolute. Infringements on that right may be justified by regulations adopted

to serve compelling state interests, unrelated to the suppression of ideas,

that cannot be achieved through means significantly less restrictive of

associational freedoms.” Roberts, 468 U.S. at 623.

Here, the Plaintiffs have alleged that they were involved in peaceful

protests and gatherings in city parks prior to their bans. [Doc. 6 at ¶ 67].

Such peaceful demonstrations in public places are protected First

Amendment activities. Grayned, 408 U.S. at 116. The Plaintiffs further

allege that the Policy has prevented and discouraged their exercise of their

First Amendment rights. While the Plaintiffs allege in their Complaint that the

Policy is not the least restrictive means of serving a state interest, as is the

argument in a typical freedom of association claim, they also tie their First

Amendment claim to their procedural due process claim. [Doc. 6 at ¶ 100].

In other words, the Plaintiffs claim they were deprived of their First

Amendment rights of association without adequate process. [Id.]. As

discussed above, the Plaintiffs have sufficiently alleged that the hearings

they were provided were procedurally inadequate under the Fourteenth

Amendment’s due process requirements. Therefore, because the Plaintiffs

have also sufficiently alleged a deprivation of these additional First

Amendment rights, the Defendants’ Motion to Dismiss will be denied with

respect to the Plaintiffs’ freedom of association claims.

3. Third Claim for Relief – Retaliation

“In order to state a colorable retaliation claim under Section 1983, a

plaintiff ‘must allege that (1) he engaged in protected First Amendment

activity, (2) the defendant took some action that adversely affected his First

Amendment rights, and (3) there was a causal relationship between his

protected activity and the defendant’s conduct.’” Martin v. Duffy, 858 F.3d

239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George

Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)) (alterations omitted).

The Plaintiffs allege they were engaging in protected First Amendment

activity in a city park, namely, gathering to peacefully protest city policies and

to provide support to homeless people. Grayned, 408 U.S. at 116

(“[P]eaceful demonstrations in public places are protected by the First

Amendment.”). The Plaintiffs also allege that the Defendants’ imposition of

the park bans adversely affected their ability to continue those activities—

they can no longer demonstrate in public parks, participate in any advocacy

in city parks or on city recreational property, or enter parks to provide support

to homeless people in them.

The question is whether Plaintiffs have alleged sufficient facts to

plausibly assert a “causal relationship” between the Plaintiffs’ protected

activities and their subsequent bans. Martin, 858 F.3d at 239. The bans

were effective as of December 25, 2021, immediately following the Plaintiffs’

protesting activities. [Doc. 6 at ¶¶ 43, 47]. The Plaintiffs also allege that

other clear violations of the felony littering statute have been brought to the

attention of the Defendants but did not result in any charges or park bans.

[Doc. 6 at ¶ 58]. These allegations are minimally sufficient to suggest that

the Defendants do not enforce the Policy in similar situations involving similar

or even greater amounts of trash, and that singling out these Plaintiffs under

these circumstances gives rise to a reasonable inference that the action was

taken against these Plaintiffs because of the nature of their protest and

advocacy. Therefore, the Defendants’ Motion to Dismiss will be denied as

to the Plaintiffs’ retaliation claim.

4. Fourth Claim for Relief – Vagueness

“A fundamental principle in our legal system is that laws which regulate

persons or entities must give fair notice of conduct that is forbidden or

required.” F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).

“[A] statute which either forbids or requires the doing of an act in terms so

vague that men of common intelligence must necessarily guess at its

meaning and differ as to its application, violates the first essential of due

process of law.” Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).

“To survive a vagueness challenge, a statute must give a person of

ordinary intelligence adequate notice of what conduct is prohibited and must

include sufficient standards to prevent arbitrary and discriminatory

enforcement.” Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272

(4th Cir. 2019). However, “[t]he degree of vagueness tolerated in a law

depends in part on the type of statute.” Id. “Less clarity is required in purely

civil statutes because the ‘consequences of imprecision are qualitatively less

severe.’” Id. (quoting Vill. Of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 499 (1982)).

Here, the Policy, while civil in nature, imposes criminal penalties for

violations. [Doc. 6-1 at 3]. The Policy states: “A person’s access to a City

park may be restricted if that person violates any of the following while in a

City park or on City property: City park rule, City Parks and Recreation

Department program rule, City ordinance, State law, Federal law.” [Id. at 2-

3]. Notice of restricted access “may be issued by any employee of the City’s

Parks and Recreation Department or the Asheville Police Department upon

an observed violation of any Park rule.” [Id. at 3].

While the Policy can indeed be triggered by a wide range of violations,

all of these violations are otherwise proscribed by city, state, and federal

laws. As such, the Plaintiffs have not sufficiently alleged that the Policy fails

to provide adequate notice of what conduct is prohibited because such notice

is provided by reference to existing laws and policies. The Plaintiffs do not

allege that the underlying criminal statutes at issue herein are vague as to

what activities are prohibited. In fact, three of the Plaintiffs pleaded guilty to

related state law misdemeanors. [Doc. 6 at ¶ 43]. Therefore, the Plaintiffs

have not alleged that the Policy poses any cognizable vagueness issue, and

the Defendants’ Motion to Dismiss will be granted with respect to the

Plaintiffs’ due process vagueness claims.

5. Qualified Immunity

“Government officials are entitled to the defense of qualified immunity

unless a § 1983 claim satisfies the following two-prong test (the ‘qualified

immunity test’): (1) the allegations underlying the claim, if true, substantiate

the violation of a federal statutory or constitutional right; and (2) this violation

was of a ‘clearly established’ right ‘of which a reasonable person would have

known.’” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th

Cir. 2006). “Qualified immunity may be invoked by a government official

sued in his personal, or individual, capacity,” but is not available in an official-

capacity suit brought against a government entity or a government officer as

that entity’s agent.” Id. at 306. A qualified immunity defense can be

presented in a Rule 12(b)(6) motion, but “when asserted at this early stage

in the proceedings, ‘the defense faces a formidable hurdle’ and ‘is usually

not successful.’” Owens v. Baltimore City State’s Att’ys Off., 767 F.3d 379,

396 (4th Cir. 2014) (quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167,

191-92 (2d Cir. 2006)).

Given that the only government official sued in his individual capacity

is Defendant McGirt, analysis of qualified immunity is limited to the claims

against him in that capacity: Fourteenth Amendment procedural due

process, First Amendment freedom of association, and First Amendment

retaliation. Because, for the foregoing reasons, the Plaintiffs have plausibly

claimed that their rights have been violated, it must only be determined

whether these rights were clearly established.

Under the Fourteenth Amendment right to procedural due process,

there is a clearly established right to an opportunity to be heard before a

decision is made. See Mathews, 424 U.S. at 333 (“This Court consistently

has held that some form of hearing is required before an individual is finally

deprived of a property interest.”). Given that one of the claims alleged

against Defendant McGirt in his individual capacity implicates the violation of

a clearly established right, the Court need not reach qualified immunity

analyses on the others at this time.

Qualified immunity had its genesis in the efforts to protect those who

must make “split-second decisions” from the realities of “hindsight bias.”

Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022). Though Qualified

Immunity might extend to decision makers such as the one here, there was

no split-second decision involved. Though officials may have some leeway

to make considered decisions within “gray areas,” Braun v. Maynard, 652

F.3d 557, 560 (4th Cir. 2011), the Plaintiffs have plausibly alleged that the

decisions here were outside such gray areas.

As the Plaintiffs have sufficiently alleged the violation of a clearly

established right, qualified immunity will be denied at this stage of litigation.

B. State Constitutional Claims

1. Fifth Claim for Relief – Procedural Due Process

“North Carolina courts have consistently interpreted the due process

and equal protection clauses of the North Carolina Constitution as

synonymous with their Fourteenth Amendment counterparts.” Tri Cnty.

Paving, Inc. v. Ashe Cnty., 281 F.3d 430, 436 (4th Cir. 2002). Because the

Plaintiffs have asserted plausible federal due process claims5 at this stage,

the Defendants’ Motion to Dismiss will also fail in regard to the Plaintiffs’ state

law due process claims, with the exception of their state law claim made

under the vagueness doctrine.

2. Sixth Claim for Relief – Freedom of Speech

The Plaintiffs also assert a claim under Article I, Section 14 of the North

Carolina Constitution, which states: “Freedom of speech and of the press are

5 In addition to the cognizable federal liberty interests the Plaintiffs allege are implicated

by their park bans, the Plaintiffs have also sufficiently alleged a deprivation of the right to

intrastate travel recognized under North Carolina state law. See Standley v. Town of

Woodfin, 362 N.C. 328, 331, 661 S.E.2d 728, 730 (2008) (“[T]his Court has recognized a

right to intrastate travel, stating that ‘the right to travel upon the public streets of a city is

a part of every individual's liberty, protected by the Due Process Clause of the Fourteenth

Amendment to the United States Constitution and by the Law of the Land Clause, Article

I, § 17, of the Constitution of North Carolina.’” (quoting State v. Dobbins, 277 N.C. 484,

497, 178 S.E.2d 449, 456 (1971))).

two of the great bulwarks of liberty and therefore shall never be restrained,

but every person shall be held responsible for their abuse.” N.C. Const. art.

14. The free speech provisions of the North Carolina Constitution have,

in some instances, been interpreted as equivalent to those in the United

States Constitution. State v. Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832,

841 (1993). The North Carolina Supreme Court, however, has also

recognized that it is not bound by opinions of the U.S. Supreme Court in

interpreting parallel provisions of the state constitution. Id. Given the

similarities of the federal and state freedom of speech protections, the

Plaintiffs’ state law freedom of speech claim will survive the Defendants’

Motion to Dismiss for the same reasons as the federal claims.

ORDER

IT IS THEREFORE ORDERED that the Defendants’ Motion to Dismiss

[Doc. 8] is GRANTED IN PART and DENIED IN PART. The Motion is

GRANTED with respect to the Plaintiffs’ federal and state law due process

claims under the vagueness doctrine. The Motion is DENIED with respect

to all of the Plaintiffs’ other claims.

IT IS SO ORDERED. _ Signed: March 4, 2024

Sos

Chief United States District Judge AS

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