United States District Court, D. Kansas
ERIC S. CLARK, PLAINTIFF,
THE CITY OF WILLIAMSBURG, KANSAS, DEFENDANT.
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
Eric Clark brings this action under 42 U.S.C. § 1983
alleging Defendant City of Williamsburg, Kansas
(“City”) violated his constitutional rights under
the First and Fourth Amendments. He also brings an inverse
condemnation action under Kansas state law. Doc. 55 at 14.
This case stems from a violation notice the City sent Clark
regarding signs at the edge of Clark's property. Both
parties have filed summary-judgment motions as to all claims.
Doc. 78; Doc. 91.
Clark's First Amendment claim, the Court finds that
Article 8, § 4.A. (6) is an unconstitutional
content-based restriction and, therefore, grants Clark
summary judgment on that count. That provision is severable
from the remainder of the City's sign ordinance, which
the Court does not evaluate because Clark lacks standing to
make that challenge. The Court grants summary judgment to the
City on Clark's Fourth Amendment claim (because there was
no search of Clark's property), and on Clark's
inverse-condemnation claim (because Clark has not established
February 23, 2015, the City's code enforcement officer,
Tony De La Torre, sent Clark a “NOTICE OF
VIOLATION” of the City's sign ordinance. Doc. 79 at
4; Doc. 92-22 at 2. The violation notice stated that Clark
was in violation of the City's sign ordinance because he
had “three large barrels, several signs, and other
affixed objects” on the City's “right of
way.” Doc. 92 at 18. According to the violation notice,
the items Clark needed to remove were located within the
City's eighty-foot easement. Id. The violation
notice requested Clark's voluntary cooperation, but it
also informed him a citation could be issued and the items
removed if he did not comply. Doc. 92 at 5-6; Doc. 100 at 4;
Doc. 92-22 at 2. The violation notice directed Clark to
immediately contact the City by phone if he had any questions
or believed he received the notice in error; otherwise,
“actions will continue toward resolution.” Doc.
92-22 at 2. Clark did not call. Doc. 100 at 27.
March 16, 2015, De La Torre went to Clark's property to
discuss the matter. Doc. 79 at 10-11; Doc. 92 at 12.
Clark's house sits back from the road and has a gravel
driveway on one side that extends from the road to the back
of the house, where it widens into a gravel apron or parking
area. Doc. 92 at 14. On the day De La Torre went to
Clark's property, there were no “No Trespass”
signs posted. Id. Clark seldom uses the front door
of his house and has trained his family members to go to the
back door when they visit. Id. at 15. The front
door, which has no doorbell, is accessed by a front porch
with steps up the front. Id. at 15-16. There is no
sidewalk or worn path to the front porch, and certain items
on the porch partially blocked the entrance, or at least
would have required a visitor to squeeze by them to get to
the door. Id. A tarp was hung up along the north
side of the porch. Id. at 15. Vegetation covered at
least some of the entrance to the front porch. Id.
At his deposition, Clark was asked, “Would you agree
that it doesn't look like an invitation to the front door
with those things sitting in front of it?” Clark
answered, “I would hope so, but I can't really say
that nobody would be deterred from going up there.”
Id.; Doc. 100 at 18.
March 16, 2015, De La Torre parked near the road. He walked
up the driveway and saw that there was no path to the front
door and that the door itself was blocked by items on the
porch. He then heard someone in the back and started walking
that way on the driveway. Doc. 92 at 16-17; Doc. 100 at
19-20. De La Torre then encountered Clark, who got angry and
told De La Torre to leave several times in the span of less
than a minute. Doc. 92 at 17. Clark then went back into the
house and De La Torre left. Doc. 92 at 16; Doc. 100 at 19. De
La Torre believes he only proceeded half-way to
three-quarters up the driveway and did not leave the driveway
or gravel apron/parking area near the back of the house. Doc.
92 at 17; Doc. 100 at 20-21. De La Torre estimates he was on
Clark's property for 3-4 minutes; Clark claims it was 5-6
minutes. Doc. 92 at 16; Doc. 100 at 19.
Clark did not call the City or discuss the violation notice
with De La Torre when he went to Clark's property, Clark
did send the City some letters in response. Doc. 100 at 22;
Doc. 92 at 18-19. Clark disputed that he was in violation of
any sign ordinance provision and asserted that the sign
ordinance was unconstitutional. Doc. 100 at 22; Doc. 92 at
18-19. In one of those letters, which was labeled a
litigation notice, Clark stated that he was fearful of
putting up any new objects until the enforcement threat was
removed. Doc. 79 at 5; Doc. 92 at 18-19.
City has never affirmatively retracted the violation notice.
Doc. 79 at 4; Doc. 92 at 10. But after receiving the
litigation notice, the mayor spoke with the City's
attorney, who advised the City to not continue investigating
Clark's alleged violations of the sign ordinance
“further.” Doc. 92 at 19; Doc. 100 at 22. The
mayor discussed the issue with the city council, and the city
council agreed to that course. Doc. 92 at 19; Doc. 100 at
22. De La Torre's notes state that the City
decided not to take any action on the violation notice
“at this time.” Doc. 100 at 22; Doc. 79-2 at 23.
Four months later, the City suspended its code enforcement
officer position due to budget constraints and has had no
code enforcement officer since that time. Doc. 79 at 6; Doc.
92 at 19. Clark was aware that the City suspended the
position. Doc. 92 at 17. The City also did not reappoint a
judge for the City's municipal court and no judge has
held a municipal judicial proceeding in the City since May
2016. Doc. 92 at 19; Doc. 100 at 23. The City has indicated
that it will not enforce the sign ordinance against Clark or
any one else “during the pendency of this case.”
Doc. 92 at 19.
parties have filed separate motions for summary judgment.
Summary judgment is appropriate if the record establishes
that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The
moving party bears the initial burden of establishing the
absence of a genuine issue of fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then
shifts to the nonmovant to demonstrate that genuine issues
remain for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986). To carry this
burden, the nonmovant “may not rely merely on . . . its
own pleadings.” Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010) (internal quotations and
citations omitted). “Rather, it must come forward with
facts supported by competent evidence.” Id.
The inquiry turns on “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Liberty Lobby, 477 U.S. at
251- 52. In applying this standard, courts must view the
evidence and all reasonable inferences from it in the light
most favorable to the nonmovant. Matsushita, 475
U.S. at 587.
has asserted three claims in this case. Count I and Count II
arise under the Constitution and are brought pursuant to 42
U.S.C. § 1983. They allege, respectively, violations of
the First and Fourth Amendments. The third count-for inverse
condemnation-is brought under Kansas state law. Doc. 55 at
14-15. Each is discussed in turn.
First Amendment Allegations (Count I)
complicating factor in analyzing Clark's First Amendment
claim is that the parties disagree on the scope of this case.
Clark asserts a broad challenge to several provisions of the
City's sign ordinance, rather than focusing on the
February 23, 2015 violation notice. Doc. 79 at 44-79. By
contrast, the City disputes that Clark has standing to
challenge any provisions of the City's sign
ordinance. Doc. 92 at 27-32. But to the extent Clark does
have standing, the City limits its analysis to whether the
City is entitled to prohibit signs on public
property. According to the City, the “February
23, 2015 Notice of Violation addressed only Article 8, §
5 of the City sign regulations.” Doc. 92 at 33.
Court agrees with the City that Clark lacks standing to
challenge most provisions in the sign ordinance, as discussed
below. But the Court disagrees with the City about what
provision is at issue. The violation notice does not cite any
specific provision in the sign ordinance by number, let alone
Article 8, § 5. But it did allege that, “[u]nder
the City of Williamsburg's Ordinance, political signs
shall not be placed on or otherwise affixed to any public
building or sign, right of way, sidewalks, utility pole,
street lamp post, tree, or other vegetative matter, Public
Park, or other public property.” Doc. 99-22 at 2. That
recites nearly verbatim Article 8, § 4.A. (6). Article
8, § 5 is not quoted, paraphrased, or mentioned.
Accordingly, to the extent a specific provision is at issue,
it is Article 8, § 4.A. (6)-not Article 8, §
reply clarifies that his standing for a First Amendment
challenge is based both on the threatened enforcement action,
“as well as the ordinance's prohibitions which
stand as prior restraints.” Doc. 100 at 37-38.
Accordingly, the Court must evaluate Clark's standing to
challenge the enforcement action (involving Article 8, §
4.A. (6)), and his broader challenge to other provisions in
the sign ordinance. Those are two different claims, and each
must be analyzed for standing separately.
suffered an injury-in-fact through issuance of the of the
violation notice and may challenge the
constitutionality of Article 8, § 4.A. (6).
Article III of the Constitution, there must be a case or
controversy before federal courts have jurisdiction. Ward
v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003). “To
meet this standing requirement, a plaintiff must demonstrate
‘that (1) he or she has suffered an injury in fact; (2)
there is a causal connection between the injury and the
conduct complained of; and (3) it is likely that the injury
will be redressed by a favorable decision.'”
Id. (quoting Phelps v. Hamilton, 122 F.3d
1309, 1326 (10th Cir. 1997)); see also Nat'l Council
for Improved Health v. Shalala, 122 F.3d 878, 881 (10th
Cir. 1997) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)).
an injury-in-fact, a plaintiff must demonstrate “an
invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Initiative &
Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th
Cir. 2006) (quoting Lujan, 504 U.S. at 560).
“Although ‘imminence' is concededly a
somewhat elastic concept, it cannot be stretched beyond its
purpose, which is to ensure that the alleged injury is not
too speculative for Article III purposes-that the injury is
‘certainly impending.'” Lujan, 504
U.S. at 564 n.2 (internal quotations omitted).
February 23, 2015, the City sent a “NOTICE OF
VIOLATION” to Clark, which stated that the City's
code enforcement officer had observed “three large
barrels, several signs, and other affixed objects located on
the City's right of way” in front of Clark's
house. It recited nearly verbatim the language of Article 8,
§ 4.A. (6) and asked for Clark's “cooperation
in correcting all the violations.” The violation notice
indicated a re-inspection would occur at a later date, and
“[i]f the violations are not corrected a citation may
be issued and objects removed from the City easement.”
Doc. 92-22 at 2. Clark never removed the items, and instead
sent some letters to the City threatening legal action. As a
result, the City opted to not pursue the matter further, or
at least “at this time.” The City has never
affirmatively retracted the violation notice. Doc. 79 at 4;
Doc. 92 at 10. In its summary-judgment motion, the City has
stated that it has no plans to enforce its sign ordinance
against Clark or any other citizens “during the
pendency of this case.” Doc. 92 at 19.
these standards, the Court concludes that Clark has suffered
an injury-in-fact concrete enough to confer standing to
challenge Article 8, § 4.A. (6). Clark was sent a letter
titled “NOTICE OF VIOLATION.” The City is correct
that the letter did ask for Clark's voluntary compliance.
But compliance was voluntary only to the extent that, if
Clark did not comply, “a citation may be issued and
objects removed from the City easement.” Doc. 92-22 at
2. Although the City has stopped pursuing the matter at least
for the time being (after Clark threatened litigation), Doc.
92 at 18-19, that decision is not permanent, nor has the City
rescinded the violation notice. Doc. 79 at 4-5; Doc. 92 at
10; Doc. 100 at 22; Doc. 79-2 at 23 (stating that the matter
would not be pursued “at this time”).
Court concludes that Clark has asserted sufficient grounds to
confer standing. He was effectively cited for violating
Article 8, § 4.A. (6), and his only option was to
acquiesce or face further action. To the extent the City does
not intend to ever follow up on the violation notice or
pursue the matter, it has been somewhat vague as to the
duration of that resolve, leaving Clark in limbo regarding
his posting of signs-and in particular, political signs-on
his property. See Doc. 79 at 4-5; Doc. 92 at 10, 19;
Doc. 100 at 22; Doc. 79-2 at 23. The Tenth Circuit has stated
that, though an injury must be impending, a plaintiff
“need not ‘await the consummation of threatened
injury.'” Essence, Inc. v. City of Federal
Heights, 285 F.3d 1272, 1282 (10th Cir. 2002) (quoting
Babbitt v. United Farm Workers Nat'l Union, 442
U.S. 289, 298 (1979)). Here, Clark has been threatened with
enforcement under the sign ordinance. A “chilling
effect on the exercise of a plaintiff's First Amendment
rights may amount to a judicially cognizable injury in fact,
as long as it ‘arise[s] from an objectively justified
fear of real consequences.'” Initiative &
Referendum Inst., 450 F.3d at 1088 (quoting D.L.S.
v. Utah, 374 F.3d 971, 975 (10th Cir. 2004)). The
“mere threat of prosecution under the allegedly
unlawful statute” can establish that chilling effect.
See Phelps, 122 F.3d at 1326. Clark does assert a
chilling effect as to Article 8, § 4.A. (6), Doc. 79 at
3, and given the violation notice, that chilling is at the
very least “objectively justified.” Accordingly,
Clark has standing to challenge the provision at issue in the
violation notice-Article 8, § 4.A. (6).
lacks standing to challenge other provisions.
Clark has standing to challenge the provision of the sign
ordinance whose language was recited nearly verbatim in the
violation notice (Article 8, § 4.A. (6)), that does not
mean Clark has standing to challenge the entirety of the
City's sign ordinance, as he attempts to do. As explained
above, the City sent Clark a violation notice that recited
the language in Article 8, § 4.A. (6). Doc. 92-22 at 2.
The City never sent any notice regarding other provisions.
Accordingly, Clark only has standing to challenge Article 8,
§ 4.A. (6). See Quinly v. City of Prairie
Village, 446 F.Supp.2d 1233, 1235 n.1 (D. Kan. 2006)
(concluding that the plaintiff lacked standing to challenge
other provisions of sign ordinance where plaintiff did not
demonstrate any injury resulting from those other
provisions); see also Essence, 285 F.3d at 1281-82.
recognizing this shortcoming in his case, Clark categorizes
his other challenges as “prior restraint” claims
and suggests that he is raising an overbreadth challenge to
essentially all of the provisions in Article 8. Doc. 79 at
52-53; Doc. 100 at 38-39. But being “prospectively
inhibited” is just a “hypothetical injury and not
a concrete injury.” Essence, 285 F.3d at 1281.
Similarly, merely couching the challenge of those other
provisions in terms of an overbreadth challenge does not in
of itself confer standing. Nat'l Council, 122
F.3d at 882 (“Although the overbreadth doctrine permits
a party to challenge a statute or regulation that has not
been unconstitutionally applied to that party, it does not
dispense with the requirement that the party itself suffer a
justiciable injury.”). An overbreadth challenger must
still “show its own concrete injury resulting from the
challenged statute or regulation.” Id. at 881.
Requiring a plaintiff to assert his own legal rights in an
overbreadth challenge “prevents a court from
‘premature interpretations of statutes in areas where
their constitutional application might be cloudy, and it
assures the court that the issues before it will be concrete
and sharply presented.'” Id. at 883 n.7
(quoting Sec'y of State v. Munson, 467 U.S. 947,
also alleges an injury-in-fact as to the other provisions
based on a chilling of his First Amendment expression. Doc.
79 at 53 (stating that “the City's regulations
prohibit, through a chilling effect, the ability of Clark to
express himself freely on certain topics at certain times, in
certain manners, and in certain places”). As noted
above, First Amendment standing may be demonstrated by a
showing that a statute has had a chilling effect on a
person's speech. See Ward, 321 F.3d at 1267. But
the only chilling Clark has alleged is in regard to
prohibitions and regulations of political signs found in
Article 8, § 4.A. (6). See Doc. 79 at 3 (¶
10 and ¶ 12, both challenging Article 8, § 4.A.
(6)). Accordingly, Clark has not alleged any
chilling that could serve as an injury-in-fact to grant him
standing to challenge other provisions.
he did allege a chilling as to those other regulations,
subjective chilling is not enough. Ward, 321 F.3d at
1267. Rather, the “chilling effect on the exercise of a
plaintiff's First Amendment rights may amount to a
judicially cognizable injury in fact, as long as it
‘arise[s] from an objectively justified fear of real
consequences.'” Initiative & Referendum
Inst., 450 F.3d at 1088 (quoting D.L.S., 374
F.3d at 975). Although Clark can meet that standard as to
Article 8, § 4.A. (6) because of the violation notice,
all Clark has to challenge the other provisions of the sign
ordinance is a conclusory claim that he has been chilled.
This is insufficient to raise a judicially cognizable
injury-in-fact. See Nat'l Council, 122 F.3d at
884 n.9 (“An allegation of inhibition of speech,
without more, will not support standing.”).
although Clark has standing to challenge Article 8, §
4.A. (6), he lacks standing to challenge other provisions in
the sign ordinance. The Court will therefore only evaluate
the constitutionality of that provision.
Article 8, § 4.A. (6) is a content-based regulation that
does not pass strict scrutiny.
explained above, Article 8, § 4.A. (6) is the provision
referenced in the violation notice.
Political signs, not exceeding a total of 20 square feet in
area on a lot of record zoned for non-residential purposes,
or which is vacant and unplatted, regardless of the zoning
district classification; and not exceeding a total of ten
(10) square feet on a lot of record in a residential zone
district. Political signs shall be displayed for no more than
a four-week period preceding and a one-week period following
an election. Political signs shall not be placed on or
otherwise affixed to any public building or sign,