Rebecca Willis v. Town of Marshall, North Carolina, Rebecca Willis v. Town of Marshall, North Carolina

WILLIAMS, Circuit Judge,

concurring in part and concurring in the judgment:

I concur in Parts I-IV and VI-VII of the majority opinion. While I concur in the judgment of Part V — affirming the district court’s grant of summary judgment on Willis’s substantive due process claims — I cannot join the opinion’s analysis in that Part. Instead, and with respect, I would resolve those claims on simpler grounds.

The majority identifies two substantive due process claims in Willis’s complaint: that the Town’s ban violated her right to be present in a public place and that the ban violated her right to intrastate travel. This reading of the complaint is a generous one, but the Town does not argue, in *268 opposition to Willis’s briefing on these claims, that the complaint should not be so read. I therefore assume that the complaint alleges these claims.

My difficulty with Willis’s substantive due process claims begins, then, not with the complaint, but with Willis’s brief. Her brief does not once argue, much less cite a single case for the proposition, that the Constitution creates the right to be present in a public place. To be sure, Willis’s brief contains a heading entitled “The Town is Violating Mrs. Willis’s Constitutional Right to be Present in a Public Place.” Appellant’s Opening Br. at 29. The entire argument in that section, however, contends that by prohibiting Willis’s presence at the Depot, the Town violated her right to travel. I would therefore interpret Willis’s brief not to argue that the Town’s ban violated some freestanding right to be present in a public place, but rather that by banning her from the Depot, a public place, the Town violated her right to travel. Cf. Fed. R.App. P. 28(a)(9)(A) (providing that appellant’s brief must contain the “contentions and the reasons for them, with citations to the authorities ... on which the appellant relies”); 11126 Baltimore Blvd., Inc. v. Prince George’s County, Md., 58 F.3d 988 , 993 n. 7 (4th Cir.1995) (en banc) (holding that mere listing of issues is not sufficient to preserve them).

I believe, moreover, that Willis’s right-to-travel argument is without merit. The Supreme Court has held only that the Constitution creates a right to international and interstate travel. See Kent v. Dulles, 357 U.S. 116 , 78 S.Ct. 1113 , 2 L.Ed.2d 1204 (1958) (international travel); Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969) (interstate travel), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974). Cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 277 , 113 S.Ct. 753 , 122 L.Ed.2d 34 (1993) (holding that a barrier to purely intrastate movement does not violate the right to interstate travel). Even if we were to extend the Constitution beyond its current reach and conclude that the substantive Due Process Clause creates a right to intrastate travel, Willis’s allegations would not state a claim for the violation of that right. The right to travel, be it international, interstate, or even intrastate (assuming such a right exists), protects the right of movement from place to place. See Kent, 357 U.S. at 126 , 78 S.Ct. 1113 (“[The] freedom of movement is ... [deeply ingrained in our history]. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of 'our heritage.” (Emphases added)); Shapiro, 394 U.S. at 629 , 89 S.Ct. 1322 (“[0]ur constitutional concepts of personal liberty ... require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” (Emphases added)); Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir.2002) (concluding that “the right to travel locally through public spaces and roadways enjoys a unique and protected place in our national heritage” (emphasis added)), Lutz v. City of York, 899 F.2d 255, 268 (3d Cir.1990) (“We conclude that the right to move freely about one’s own neighborhood or town, even by automobile, is indeed [embedded in the Constitution].” (Emphasis added)). The Town’s ban here, by contrast, prohibits only Willis’s presence at a particular place, and it in no way implicates the right to travel. *

*269 Accordingly, I would affirm the district court’s grant of summary judgment to the Town on Willis’s substantive due process claims. Moreover, because Willis cannot show that the Town violated a right— arising under either the First Amendment or the substantive Due Process Clause— that is protected by the procedural Due Process Clause, I would affirm the district court’s grant of summary judgment to the Town on Willis’s procedural due process claims. See Mallette v. Arlington County Employees’ Supp. Ret. Sys. II, 91 F.3d 630, 634 (4th Cir.1996) (holding that the procedural Due Process Clause applies only when the plaintiff has been deprived of a “life, liberty, or property” right).

Of course, a government could violate the right to intrastate travel, assuming one exists, by prohibiting a person's presence in an area so large that the prohibition effectively inhi *269 bits travel; for example, if the Town’s ban excluded Willis not just from the Depot, but from all of Madison County. Cf. Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir.2002) (finding that ordinance prohibiting those convicted of drug crimes from being present in designated “drug exclusion zones” violated the right to intrastate travel where the ordinance interfered with the "right to travel locally through public spaces and roadways”). On no reasonable view of the facts here, however, can the Town’s ban be said similarly to inhibit Willis's ability to move from place to place.