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U.S. District Court Eastern District of Missouri (
St. Louis) CIVIL DOCKET FOR CASE #: 4:19-cv-01638
-SNLJ

CLOSED,TRCK1

Fernandez v. St. Louis County

Assigned to: District Judge Ste
phen N. Limbaugh, Jr

Cause: 42:1983 Civil Rights Act




Plaintiff Robert A. Fernandez

V. 

Defendant St. Louis County

Date Filed: 06/05/2019

Date Terminated: 05/11
/2021

Jury Demand: Plaintiff




Nature of Suit: 440 Civ
il Rights: Other

Jurisdiction: Federal Question




represented by Hugh A. Eastwood

Hugh A. Eastwood, Attorney at Law

7911 Forsyth Blvd., Ste. 300

St. Louis, MO 63105-3825

314-809-2343

Fax: 314-863-5335

Email: heastwood@eastwoodlawstl.com


LEAD ATTORNEY





ATTORNEY TO BE
NOTICED




W. Bevis Schock

SCHOCK LAW

7777 Bonhomme Avenue

Suite 1300

St. Louis, MO 63105

314-726-2322

Fax: 314-721-1698

Email: wbschock@schocklaw.com


LEAD ATTORNEY





ATTORNEY TO BE
NOTICED

represented by Linda Levin

ST. LOUIS COUNTY COUNSELORS OFFICE

41 S. Central Avenue

Clayton, MO 63105

314-615-7033

Fax: 314-615-3732

Email: llevin@stlouisco.com


LEAD ATTORNEY





ATTORNEY TO BE
NOTICED




Robert C. Moore ST. LOUIS COUNTY COUNSELOR'S OFFICE 41 S. Central Avenue Clayton, MO 63105 314-952-6484 Fax: 314-615-3732 Email: rmoore@stlouisco.com
 ATTORNEY TO BE NOTICED 




Steven J Capizzi ST. LOUIS COUNTY COUNSELORS OFFICE 41 S. Central Avenue Clayton, MO 63105 314-615-6870 Email: scapizzi@stlouisco.com
 ATTORNEY TO BE NOTICED 


Date Filed 06/05/2019
06/05/2019 06/06/2019 06/06/2019 06/06/2019 07/08/2019 07/23/2019 08/22/2019 08/22/2019 08/23/2019 08/30/2019 08/30/2019 09/03/2019
09/10/2019 09/11/2019 09/18/2019 09/27/2019
10/08/2019 10/08/2019

# Docket Text
1 COMPLAINT against defendant St. Louis County with receipt number AMOEDC-7259440, in the amount of $400 Jury Demand,, filed by Robert A Fernandez. (Attachments: # 1 Attachment Exhibit List, # 2 Exhibit Ex.1.Website version of County Code Chapter 804, # 3 Exhibit Ex.2.Certified copy of Ordinance No. 6201, # 4 Exhibit Ex.3.Certified copy of Ordinannce No. 13091, # 5 Exhibit Ex.4.Certified Copy of Ordinannce No. 14,722, # 6 Exhibit Ex..Certified copy of Ordinannce No. 21,507, # 7 Exhibit Certified copy of Ordinance No. 20,361, # 8 Exhibit Certified copy of Ordinance No. 21,028, # 9 Exhibit Ex.8.Certified copy of Ordinance No. 21,613, # 10 Exhibit Ex.9.Certified copy of Ordinance No. 21,834, # 11 Exhibit Ex.10.Certified copy of Ordinance No. 22,767, # 12 Exhibit Ex.11.Certified copy of Ordinance No. 23,112, # 13 Exhibit Ex.12.Certified copy of Ordinance No. 23,268, # 14 Exhibit Ex.13.Certified copy of Ordinance No. 23,731, # 15 Exhibit Ex.14.Certified copy of Ordinance No. 24,089, # 16 Exhibit Ex.15.Certified copy of Ordinance No. 24,769, # 17 Exhibit Ex.16.Certified copy of Ordinance No.25,013, # 18 Exhibit Ex.17.Certified copy of Ordinance No. 25,277, # 19 Exhibit Ex.18.Certified copy of Ordinance No. 25,559, # 20 Exhibit Ex.19.Certified copy of Ordinance No. 27,173, # 21 Exhibit Ex.20.County website, Peddler,Commercial Solicitor, Street Vendor License Requirement, # 22 Exhibit Ex.21.County Police website, Background Checks, # 23 Exhibit Ex.22.Appl. for Peddler,Commercial Solicitor, # 24 Exhibit Ex.23.Website for County Code Sections 1201,1202,1209,1215, # 25 Exhibit Ex.24.Certified copy of Ordinance No. 12347, # 26 Exhibit Ex.25.Certified copy of Ordinance No. 26,424, # 27 Exhibit Ex.26.Website for County Code Chapter 716, # 28 Exhibit Ex.27.Certified copy of Ordinance No. 3729, # 29 Exhibit Ex.28.Solicitor License no. 3371 and 3483, # 30 Exhibit Ex.29.Record of thirty-nine citations in St. Louis County, # 31 Exhibit Ex.30.Email from Asst. County Counselor Alper, # 32 Exhibit Ex.31.Nolle prosequi memorandum dated May 9, 2019, # 33 Exhibit Ex.32.Photograph A, # 34 Exhibit Ex.33.Photograph B, # 35 Exhibit Ex.34.Photograph C, # 36 Exhibit Ex.35.Google Map of exit ramp, 55 with S. Lindbergh, # 37 Exhibit Ex.36.Same Google Map, zoomed in, # 38 Exhibit Ex.37.Affidavit of Plaintiff Robert Fernandez)(Schock, W.) Clerk's note: Attachment 30 sealed pursuant to Local Rule 2.17 because it contains personal identifiers. (Entered: 06/05/2019)
2 ENTRY of Appearance by Hugh A. Eastwood for Plaintiff Robert A Fernandez. (Eastwood, Hugh) (Entered: 06/05/2019)
3 MOTION for Preliminary Injunction by Plaintiff Robert A. Fernandez. (Attachments: # 1 Attachment Plaintiff's Memorandum in Support of his Motion for Preliminary Injunction)(Schock, W.) (Entered: 06/06/2019)
4 SUPPLEMENTAL re 1 Complaint,,,,,,,,,, Waiver of Service, Original Filing Form, Civil Cover Sheet by Plaintiff Robert A. Fernandez. (Eastwood, Hugh) (Entered: 06/06/2019)
Case Opening Notification: Waivers issued 1. Judge Assigned: Honorable Jean C. Hamilton. (JWD) (Entered: 06/06/2019)
5 WAIVER OF SERVICE Returned Executed filed by Robert A. Fernandez St. Louis County waiver signed on 7/1/2019, answer due 8/30/2019. (Schock, W.) (Entered: 07/08/2019)
6 ENTRY of Appearance by Linda Levin for Defendant St. Louis County. (Levin, Linda) (Entered: 07/23/2019)
7 ORDER - Due to conflict of interest, this Court hereby recuses itself from this case. This case will be reassigned to another Judge. Signed by District Judge Jean C. Hamilton on 8/22/19. (KJS) (Entered: 08/22/2019)
8 REASSIGNMENT ORDER (GJL). IT IS HEREBY ORDERED that the above styled cause is reassigned to the Honorable Stephen N. Limbaugh, Jr.. District Judge Jean C. Hamilton no longer assigned to case. Case reassigned to District Judge Stephen N. Limbaugh, Jr for all further proceedings. (KJS) (Entered: 08/22/2019)
9 ORDER SETTING RULE 16 CONFERENCE: See prepared Order; Joint Scheduling Plan due by 9/26/2019. Rule 16 Conference set for 10/10/2019 10:30 AM in Telephone before District Judge Stephen N. Limbaugh Jr.; Signed by District Judge Stephen N. Limbaugh, Jr on 08/23/19. (CMH) (Entered: 08/23/2019)
10 ANSWER to 1 Complaint,,,,,,,,,, by St. Louis County.(Levin, Linda) (Entered: 08/30/2019)
11 MEMORANDUM in Opposition re 3 MOTION for Preliminary Injunction filed by Defendant St. Louis County. (Levin, Linda) (Entered: 08/30/2019)
12 MOTION for Hearing re 3 MOTION for Preliminary Injunction Plaintiffs Motion for Preliminary Injunction Hearing Date, Relief from Order setting Rule 16 Conference, and Reply to Defendants Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction by Plaintiff Robert A. Fernandez. (Attachments: # 1 Exhibit Exhibit 1 (St. Louis County municipal court docket report for Fernandez (printed 9/03/2019)))(Eastwood, Hugh) (Entered: 09/03/2019)
13 MEMORANDUM in Opposition re 12 MOTION for Hearing re 3 MOTION for Preliminary Injunction Plaintiffs Motion for Preliminary Injunction Hearing Date, Relief from Order setting Rule 16 Conference, and Reply to Defendants Memorandum in Opposition to Plaintiffs Mo filed by Defendant St. Louis County. (Levin, Linda) (Entered: 09/10/2019)
14 REPLY to Response to Motion re 12 MOTION for Hearing re 3 MOTION for Preliminary Injunction Plaintiffs Motion for Preliminary Injunction Hearing Date, Relief from Order setting Rule 16 Conference, and Reply to Defendants Memorandum in Opposition to Plaintiffs Mo filed by Plaintiff Robert A. Fernandez. (Eastwood, Hugh) (Entered: 09/11/2019)
15 JOINT SCHEDULING PLAN by Plaintiff Robert A. Fernandez. . (Schock, W.) (Entered: 09/18/2019)
16 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Stephen N. Limbaugh, Jr: Conference call held this day with the Court and counsel for all parties participating, the parties are directed to file revised proposed case management order prior to the Rule 16 hearing set October 10, 2019. Telephone Conference held on 9/27/2019. (CMH) (Entered: 09/27/2019)
17 JOINT SCHEDULING PLAN by Plaintiff Robert A. Fernandez. First Amended. (Eastwood, Hugh) (Entered: 10/08/2019)
18 MEMORANDUM re 16 Telephone Conference, Meet and Confer by Plaintiff Robert A. Fernandez. (Eastwood, Hugh)

10/10/2019
10/10/2019 10/10/2019
10/10/2019
11/12/2019 11/18/2019 11/19/2019 12/27/2019 01/22/2020 01/22/2020 01/23/2020 01/28/2020 01/29/2020 02/03/2020 02/10/2020 02/10/2020 02/21/2020 02/21/2020 03/03/2020
03/03/2020
03/03/2020 03/09/2020

(Entered: 10/08/2019)
19 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Stephen N. Limbaugh, Jr: Rule 16 Conference held on 10/10/2019. Conference held by phone. CMO to issue. (Notice only, no.pdf attached.). (proceedings started: 10:30 A.M.) (proceedings ended: 10:51 A.M.)(Appearance for Plaintiff: Hugh Eastwood and Bevis Shock)(Appearance for Defendant: Linda Levin) (CMH) (Entered: 10/10/2019)
20 NOTICE Filing of Proposed Order: by Plaintiff Robert A. Fernandez re 1 Complaint,,,,,,,,,, Preliminary Injunction of St. Louis County Vagrancy Ordinance (Attachments: # 1 Text of Proposed Order Proposed ORDER)(Eastwood, Hugh) (Entered: 10/10/2019)
21 CASE MANAGEMENT ORDER This case is assigned to Track: 1: Expedited. Motion to Join Parties due by 11/15/2019. Discovery Completion due by 2/3/2020. Non-Dispositive Motions due by 2/10/2020. Dispositive Motions due by 2/10/2020. Bench Trial set for 4/6/2020 01:30 PM in Courtroom 3N - St. Louis before District Judge Stephen N. Limbaugh Jr. Motion in Limine due by 3/27/2020. SEE ORDER FOR ADDITIONAL DEADLINES. Signed by District Judge Stephen N. Limbaugh, Jr on 10/10/19. (CMH) (Entered: 10/10/2019)
22 PRELIMINARY INJUNCTION re: 3 MOTION for Preliminary Injunction filed by Plaintiff Robert A. Fernandez. IT IS HEREBY ORDERED that St. Louis County, Missouri is enjoined from enforcement of its Vagrancy Ordinance No. 3729, enacted 10-28-1965, and codified at Sections 716.080 and 716.090 of the St. Louis County Revised Ordinances. Signed by District Judge Stephen N. Limbaugh, Jr on 10/10/19. (CMH) (Entered: 10/10/2019)
23 MOTION for Preliminary Injunction Renewed motion based on New Eighth Circuit Authority by Plaintiff Robert A. Fernandez. (Attachments: # 1 Exhibit Exhibit 1 - Rodgers v. Bryant)(Eastwood, Hugh) Modified on 12/29/2020 (MRS). (Entered: 11/12/2019)
24 MEMORANDUM in Opposition re 23 MOTION for Preliminary Injunction Renewed motion based on New Eighth Circuit Authority filed by Defendant St. Louis County. (Levin, Linda) (Entered: 11/18/2019)
25 REPLY to Response to Motion re 23 MOTION for Preliminary Injunction Renewed motion based on New Eighth Circuit Authority filed by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 11/19/2019)
26 NOTICE by Plaintiff Robert A. Fernandez Plaintiffs Memorandum re: Dismissal of Underlying Criminal Cases (Attachments: # 1 Exhibit Exhibit 1 - Order)(Eastwood, Hugh) (Entered: 12/27/2019)
27 MOTION for Leave to file Additional Memorandum by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 01/22/2020)
28 MEMORANDUM in Support of Motion re 23 MOTION for Preliminary Injunction Renewed motion based on New Eighth Circuit Authority filed by Plaintiff Robert A. Fernandez. (Attachments: # 1 Exhibit St. Louis County Memorandum of 10/29/19)(Schock, W.) (Entered: 01/22/2020)
29 Docket Text ORDER: Re: 27 MOTION for Leave to file Additional Memorandum by Plaintiff Robert A. Fernandez. (Schock, W.) filed by Robert A. Fernandez; ORDERED GRANTED. Signed by District Judge Stephen N. Limbaugh, Jr on 01/23/20. (CMH) (Entered: 01/23/2020)
30 ENTRY of Appearance by Robert C. Moore for Defendant St. Louis County. (Moore, Robert) (Entered: 01/28/2020)
31 MEMORANDUM in Opposition re 23 MOTION for Preliminary Injunction Renewed motion based on New Eighth Circuit Authority filed by Defendant St. Louis County. (Levin, Linda) (Entered: 01/29/2020)
32 REPLY to Response to Motion re 23 MOTION for Preliminary Injunction Renewed motion based on New Eighth Circuit Authority filed by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 02/03/2020)
33 MOTION for Judgment on the Pleadings by Defendant St. Louis County. (Levin, Linda) (Entered: 02/10/2020)
34 MEMORANDUM in Support of Motion re 33 MOTION for Judgment on the Pleadings filed by Defendant St. Louis County. (Attachments: # 1 Exhibit Affidavit of Jericka Johnson)(Levin, Linda) (Entered: 02/10/2020)
35 MEMORANDUM in Opposition re 33 MOTION for Judgment on the Pleadings filed by Plaintiff Robert A. Fernandez. (Eastwood, Hugh) (Entered: 02/21/2020)
36 MOTION to Exclude Affidavit of Jericka Johnson by Plaintiff Robert A. Fernandez. (Eastwood, Hugh) (Entered: 02/21/2020)
37 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Stephen N. Limbaugh, Jr: Telephone Conference held on 3/3/2020. (proceedings started: 11:16 A.M.) (proceedings ended: 11:28 A.M.) (Appearance for Plaintiff: Hugh Eastwood and W. Beavis Shock) (Appearance for Defendant: Linda Levin and Robert Moore) (CMH) (Entered: 03/03/2020)
38 Docket Text ORDER: On the Court's own motion case continued for Bench Trial on Monday, June 15th and Tuesday, June 16th at 10:00 a.m in Courtroom 3N. Bench Trial set for 6/15/2020 10:00 AM in Courtroom 3N - St. Louis before District Judge Stephen N. Limbaugh Jr. Signed by District Judge Stephen N. Limbaugh, Jr on 03/03/20. (CMH) (Entered: 03/03/2020)
39 REPLY to Response to Motion re 33 MOTION for Judgment on the Pleadings filed by Defendant St. Louis County. (Levin, Linda) (Entered: 03/03/2020)
40 Docket Text ORDER: Re: 3 MOTION for Preliminary Injunction by Plaintiff Robert A. Fernandez. (Attachments: # 1 Attachment Plaintiff's Memorandum in Support of his Motion for Preliminary Injunction)(Schock, W.) filed by Robert A. Fernandez; ORDERED DENIED as moot in view of the renewed motion for preliminary injunction Doc. #23. Signed by District Judge Stephen N. Limbaugh, Jr on 03/09/2020. (CMH) (Entered: 03/09/2020)

05/18/2020 05/18/2020
05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/28/2020 05/28/2020 08/19/2020 08/19/2020 08/21/2020 09/10/2020 09/10/2020
09/10/2020 09/10/2020

41 Docket Text ORDER: Status Conference set for 5/28/2020 10:30 AM in Telephone Conference in Chambers before District Judge Stephen N. Limbaugh Jr.. Signed by District Judge Stephen N. Limbaugh, Jr on 05/18/20. (CMH) (Entered: 05/18/2020)
42 MEMORANDUM AND ORDER re: 36 MOTION to Exclude Affidavit of Jericka Johnson filed by Plaintiff Robert A. Fernandez, 33 MOTION for Judgment on the Pleadings filed by Defendant St. Louis County. IT IS HEREBY ORDERED that plaintiff's motion to exclude the affidavit of Jericka Johnson (ECF #36) is GRANTED. IT IS FURTHER ORDERED that defendant St. Louis County's motion for judgment on the pleadings (#33) is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr. on 5/18/20. (CSG) (Entered: 05/18/2020)
43 ENTRY of Appearance by Steven J Capizzi for Defendant St. Louis County. (Capizzi, Steven) (Entered: 05/26/2020)
44 Stipulation of Uncontested Facts by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 05/26/2020)
45 Exhibit List by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 05/26/2020)
46 Deposition Designations by Plaintiff Robert A. Fernandez.. (Schock, W.) (Entered: 05/26/2020)
47 WITNESS LIST by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 05/26/2020)
48 WITNESS LIST by Defendant St. Louis County. (Moore, Robert) (Entered: 05/26/2020)
49 Exhibit List by Defendant St. Louis County. (Moore, Robert) (Entered: 05/26/2020)
50 Deposition Designations by Defendant St. Louis County.. (Moore, Robert) (Entered: 05/26/2020)
ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Stephen N. Limbaugh, Jr: Status Conference held on 5/28/2020. (proceedings started: 10:31 A.M.) (proceedings ended: 10:47 A.M.)(Appearance for Plaintiff: Hugh Eastwood & Bevis Shock)(Appearance for Defendant: Linda Levin, Robert Moore & Steven Capizzi) (CMH) (Entered: 05/28/2020)
51 SCHEDULING ORDER: IT IS HEREBY ORDERED that this case be reset for Bench Trial on Thursday, September 10, 2020 at 10:30 a.m. in Courtroom 3N of the Thomas F. Eagleton United States Courthouse. Bench Trial set for 9/10/2020 10:30 AM in Courtroom 3N - St. Louis before District Judge Stephen N. Limbaugh Jr. Signed by District Judge Stephen N. Limbaugh, Jr on 05/28/20. (CMH) (Entered: 05/28/2020)
52 Docket Text ORDER: Status Conference set for 8/21/2020 10:15 AM in Telephone Conference in Chambers before District Judge Stephen N. Limbaugh Jr.. Signed by District Judge Stephen N. Limbaugh, Jr on 08/19/20. (CMH) (Entered: 08/19/2020)
53 TRIAL BRIEF by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 08/19/2020)
54 ORDER: Conference call held this day with Court and counsel for all parties participating. By agreement of the parties, the case is removed from the trial setting of September 10, 2020, and the case will be submitted by that date on a stipulated record and briefs. Signed by District Judge Stephen N. Limbaugh, Jr on 08/21/20. (CMH) (Entered: 08/21/2020)
55 TRIAL BRIEF of the Solicitor License, Damages, and Attorney's Fees by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 09/10/2020)
56 Exhibit List by Plaintiff Robert A. Fernandez. (Attachments: # 1 Exhibit Ex. 1.Website version of County Code Chapter 804, # 2 Exhibit Ex.2. Certified Copy of Ordinance No. 6201, # 3 Exhibit Ex.3. Certified copy of Ordinance No. 13091, # 4 Exhibit Ex. 4. Certified copy of Ordinance No. 14,722, # 5 Exhibit Ex.5. Certified copy of Ordinance No. 21,507, # 6 Exhibit Ex.6.Certified copy of Ordinance No. 20,361, # 7 Exhibit Ex.7.Certified copy of Ordinance No. 21,028, # 8 Exhibit Ex.8. Certified copy of Ordinance No. 21,613, # 9 Exhibit Ex.9. Certified copy of Ordinance No. 21,834, # 10 Exhibit Ex.10. Certified copy of Ordinance No. 22,767, # 11 Exhibit Ex.11. Certified copy of Ordinance No. 23,112, # 12 Exhibit Ex.12. Certified copy of Ordinance No. 23,268, # 13 Exhibit Ex.13. Certified copy of Ordinance No. 23,7313, # 14 Exhibit Ex.14. Certified copy of Ordinance No. 24,089, # 15 Exhibit Ex.15. Certified copy of Ordinance No. 24,769, # 16 Exhibit Ex.16. Certified copy of Ordinance No. 25,013, # 17 Exhibit Ex.17. Certified copy of Ordinance No. 25,277, # 18 Exhibit Ex.18. Certified copy of Ordinance No. 25,559, # 19 Exhibit Ex.19. Certified copy of Ordinance No. 27,173, # 20 Exhibit Ex.20. County Website "Peddler/Commercial Solicitor/Street Vendor License Requirement", # 21 Exhibit Ex.21. CountyPolice website "Background Checks:, # 22 Exhibit Ex.22. Application for Peddler/Commercial Solicotor under Chapter 804, # 23 Exhibit Ex.23. Website for County Code Sections, # 24 Exhibit Ex.24.Certified copy of Ordinance No. 12347, # 25 Exhibit Ex.25. Certified copy of Ordinance No. 26,424, # 26 Exhibit Ex.26. Website for County Code Chapter 716, # 27 Exhibit Ex.27. Certified copy of Ordinance No. 3729, # 28 Exhibit Ex.28. Solicitor License No. 3371, # 29 Exhibit Ex.29. Record of 39 citations in St. Louis County, # 30 Exhibit Ex.30. Email from Asst. County Counselor Andi Alper, # 31 Exhibit Ex.31. Nolle Prosequi Memorandum dated May 9, 2019, # 32 Exhibit Ex.32. Photograph A, # 33 Exhibit Ex.33. Photograph B, # 34 Exhibit Ex.34. Photograph C, # 35 Exhibit Ex.35.Google Map of Intersection, # 36 Exhibit Ex.36. Same Google Map zoomed in, # 37 Exhibit Ex.37. Affidavit of Plaintiff, # 38 Exhibit Ex.38. Additional citations, # 39 Exhibit Ex.39. Fernandez motion to dismiss in county municipal court, # 40 Exhibit Ex.40. Order on Motion to dismiss in County, # 41 Exhibit Ex.41. Demonstrative Spreadsheet showing all relevant citations, # 42 Exhibit Ex.42. Demonstrative spreadsheet showing length of seizure, # 43 Exhibit Ex.43. Fernandez medical records, # 44 Exhibit Ex.44. Schock timesheet, # 45 Exhibit Ex.45. Eastwood Timesheet, # 46 Exhibit Ex.46. Schock Affidavit, # 47 Exhibit Ex.47. Pleban Affidavit, # 48 Exhibit Ex.48. Herman Affidavit, # 49 Exhibit Ex.49. Eastwood Affidavit, # 50 Exhibit Ex.50. Fry Affidavit, # 51 Exhibit Ex.51. Hoell Affidavit, # 52 Exhibit Ex.52. Billing Rates Missouri Lawyers Weekly 2019)(Schock, W.) (Entered: 09/10/2020)
57 Stipulation of Uncontested Facts by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 09/10/2020)
58 TRIAL BRIEF by Defendant St. Louis County. (Moore, Robert) (Entered: 09/10/2020)

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09/30/2020 09/30/2020
09/30/2020 10/13/2020 05/11/2021

59 Exhibit List For Trial Brief by Defendant St. Louis County. (Attachments: # 1 Exhibit Exhibit A - Audio Disc, # 2 Exhibit Exhibit B - Report 18-33253, # 3 Exhibit Exhibit C - Report 19-49564, # 4 Exhibit Exhibit D - Plaintiff Deposition, # 5 Exhibit Exhibit E - CAD call log, # 6 Exhibit Exhibit F - Report 19-43909, # 7 Exhibit Exhibit G - Report 19-40240, # 8 Exhibit Exhibit H - Report 18-9201, # 9 Exhibit Exhibit I - Report 17-6310, # 10 Exhibit Exhibit J - Report 19-13856) (Moore, Robert) (Entered: 09/10/2020)
60 MOTION for Leave to File in Excess of Page Limitation by Defendant St. Louis County. (Moore, Robert) (Entered: 09/10/2020)
61 Exhibit List Affidavits for Trial Brief by Defendant St. Louis County. (Attachments: # 1 Affidavit Affidavit - Kriska, # 2 Affidavit Affidavit - Dolly, # 3 Affidavit Affidavit - Schneider)(Moore, Robert) (Entered: 09/10/2020)
62 MOTION for Leave to Trial Brief of the Solicitor License, Damages, and Attorneys Fees file Excess Pages by Plaintiff Robert A. Fernandez. (Eastwood, Hugh) (Entered: 09/10/2020)
63 Docket Text ORDER: Re: 62 MOTION for Leave to Trial Brief of the Solicitor License, Damages, and Attorneys Fees file Excess Pages by Plaintiff Robert A. Fernandez. (Eastwood, Hugh) filed by Robert A. Fernandez ; ORDERED GRANTING. Signed by District Judge Stephen N. Limbaugh, Jr on 9/11/20. (CMH) (Entered: 09/11/2020)
64 Docket Text ORDER: Re: 60 MOTION for Leave to File in Excess of Page Limitation by Defendant St. Louis County. (Moore, Robert) filed by St. Louis County ; ORDERED GRANTING. Signed by District Judge Stephen N. Limbaugh, Jr on 09/11/20. (CMH) (Entered: 09/11/2020)
65 Docket Text ORDER: The parties have submitted briefing and stipulated facts, most of which they agree on. However, there is a clear disagreement about the extent of Fernandez's use of the roadway separate and apart from sidewalks, curbs, and/or medians. Fernandez embraces that he may briefly step into the curbside or shoulder of the roadway when the light is red to complete his receipt of a donation. Police contend, by affidavit, that they have seen plaintiff walk into the traffic lanes, including the second lane of traffic, in order to get donations from vehiclesa practice both parties acknowledge can slow traffic and create dangerous situations when the light turns green. This Court notes that the relevant ordinance, Section 1209.090, prohibits persons from stand[ing] in a roadway for the purpose of soliciting[,] which earlier ordinances such as Section 1209.080 distinguish from sidewalks and shoulders. The citation spreadsheet (exhibit 41) does not indicate whether citations were issued for standing in or otherwise obstructing the roadway itself, as opposed to being cited for using the sidewalk, median, or shoulders to solicit. But, given its plain language, Section 1209.090 appears to prohibit conduct separate and apart from that which plaintiff says he was engaged inthat is, soliciting from the safety of a median or sidewalk. This distinction plays greatly into the County's rationale about traffic safety. Indeed, Fernandez expressly acknowledges that he is not asking this Court to extend novel protections to his ability to meander through the travel lanes within the roadway. (emphasis in original). And this Court takes the parties' arguments to mean that Fernandez is not being arbitrarily cited for violation of Section 1209.090 for the brief moment it takes to step away from the sidewalk or median to receive money from a car window. The parties are hereby ordered, within seven (7) days, to provide additional briefing regarding the limited scope of Section 1209.090 (limited to stand[ing] in the roadway) and how this pertains to Fernandez's arguments that his constitutional rights have been violated for having used, instead, the wide sidewalk median area to engage in solicitation. Signed by District Judge Stephen N. Limbaugh, Jr on 09/23/20. (CMH) (Entered: 09/23/2020)
66 TRIAL BRIEF Plaintiffs Additional Briefing on Limited Scope of Section 1209.090 by Plaintiff Robert A. Fernandez. (Eastwood, Hugh) (Entered: 09/30/2020)
67 Exhibit List For Supplemental Trial Brief by Defendant St. Louis County. (Attachments: # 1 Exhibit Police Report 18-60180, # 2 Exhibit Police Report 19-13698, # 3 Exhibit Police Report 20-1918, # 4 Exhibit Police Report 20-2226, # 5 Exhibit Police Report 18-30542, # 6 Exhibit Police Report 19-40534, # 7 Exhibit Police Report 18-23420, # 8 Exhibit Police Report 172325, # 9 Exhibit Police Report 46743, # 10 Exhibit Police Report 18-65482, # 11 Exhibit Plaintiff's Deposition, # 12 Exhibit Police Report 19-40240, # 13 Exhibit Police Report 17-6310, # 14 Affidavit Craig Kriska Affidavit)(Moore, Robert) (Entered: 09/30/2020)
68 TRIAL BRIEF Supplemental Trial Brief by Defendant St. Louis County. (Moore, Robert) (Entered: 09/30/2020)
69 ORDER re 12 MOTION for Hearing re 3 MOTION for Preliminary Injunction Plaintiffs Motion for Preliminary Injunction Hearing Date, Relief from Order setting Rule 16 Conference, and Reply to Defendants Memorandum in Opposition to Plaintiffs Mo filed by Robert A. Fernandez. Plaintiff's motion for hearing on his preliminary injunction (ECF #12) and motion for preliminary injunction (ECF #23) are DENIED AS MOOT. Signed by District Judge Stephen N. Limbaugh, Jr on 10/13/20. (CSG) (Entered: 10/13/2020)
70 MEMORANDUM AND ORDER: IT IS HEREBY ORDERED, ADJUDGED, and DECREED that judgment will be entered in plaintiff Robert Fernandez's favor on Counts I, II, III, and V of plaintiff's complaint [Doc. #1]. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that judgment will be entered in defendant St. Louis County's favor on Counts IV and VI of plaintiff's complaint [Doc. #1]. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the following provisions will be severed from the St. Louis County Peddlers and Solicitors Code, Chapter 804, and defendant is prohibited from enforcing them: (1) the prohibition on soliciting property or financial assistance of any kind without a license, as contained in sections 804.030(4)(c)(i) and 804.050; and (2) section 804.165, Restriction of Solicitation at Designated Intersections. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that section 1209.090.1 will be severed from the St. Louis County Traffic Code, Chapter 1209, and defendant is prohibited from enforcing section 1209.090.1. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that sections 716.080 and 716.090 will be severed from the St. Louis County Petty Offenses Code, Chapter 716, and defendant is prohibited from enforcing sections 716.080 and 716.090. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff is entitled to damages from defendant in the amount of $150,000.00. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff is entitled to attorneys' fees and costs from defendant under 42 U.S.C. § 1988 in the amount of $138,515.00.A separate judgment will issue. Signed by District Judge Stephen N. Limbaugh, Jr on 05/11/2021. (CMH) (Entered: 05/11/2021)

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05/17/2021 06/17/2021 06/18/2021

71 JUDGMENT: In accordance with the memorandum and order entered today, and Fed. R. Civ. P. 58, JUDGMENT is hereby granted as follows: On Count I, in favor of plaintiff and against defendant. The following provisions are hereby severed from the St. Louis County Peddlers and Solicitors Code, Chapter 804, and defendant is prohibited from enforcing them: (1) the prohibition on soliciting property or financial assistance of any kind without a license, as contained in sections 804.030(4)(c) (i) and 804.050; and (2) section 804.165, Restriction of Solicitation at Designated Intersections. On Count II, in favor of plaintiff and against defendant. Section 1209.090.1 is hereby severed from the St. Louis County Traffic Code, Chapter 1209, and defendant is prohibited from enforcing section 1209.090.1. On Count III, in favor of plaintiff and against defendant. Sections 716.080 and 716.090 are hereby severed from the St. Louis County Petty Offenses Code, Chapter 716, and defendant is prohibited from enforcing sections 716.080 and 716.090. Signed by District Judge Stephen N. Limbaugh, Jr on 05/11/2021. (CMH) (Entered: 05/11/2021)
72 MOTION for Bill of Costs by Plaintiff Robert A. Fernandez. (Schock, W.) (Entered: 05/17/2021)
73 NOTICE Satisfaction of Judgment: by Plaintiff Robert A. Fernandez (Schock, W.) (Entered: 06/17/2021)
74 Bill of Costs Taxed in amount of $ 781.00 against St. Louis County 72 MOTION for Bill of Costs filed by Robert A. Fernandez. (CMH) (Entered: 06/18/2021)

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4:19-cv-01638SNLJ 0.90

 
 Case: 4:19-cv-01638-SNLJ Doc. #: 1 Filed: 06/05/19 Page: 1 of 25 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROBERT FERNANDEZ, Plaintiff,
v. ST. LOUIS COUNTY, MISSOURI,
Defendant.

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Case No.

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JURY TRIAL DEMANDED

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ON CLAIMS FOR DAMAGES

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Complaint: Declaratory Relief, Preliminary and Permanent Injunction, and Monell Damages
St. Louis County Solicitation and Vagrancy Ordinances

Plaintiff Robert Fernandez, by counsel Hugh A. Eastwood and W. Bevis Schock, states

for his Complaint:

1. Introduction. Plaintiff Robert Fernandez is a poor, homeless, unemployed single man.

He begs on certain medians in St. Louis County, Missouri near major intersections.

Since October 2017, County police have cited Fernandez 39 times for solicitation and

vagrancy-related municipal ordinance violations. Three under three sections of the St.

Louis County Code: Chapter 804, which regulates and licenses who may solicit for

financial assistance and where; Section 1209.090, which prohibits pedestrians from

soliciting for certain purposes in the roadway; and Sections 716.080 and 716.090, which

prohibit vagrancy. He brings as applied and facial challenges to those ordinances.

2. Parties. Plaintiff Robert Fernandez is a poor, unemployed, single homeless man residing

within the limits of Defendant St. Louis County, Missouri. Although he begs for

financial assistance for himself and his disabled female companion Skye Herron, he is not

affiliated with, nor does he beg on behalf of, any nonprofit organization registered with

the State of Missouri or St. Louis County.

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3. At all relevant times, Defendant St. Louis County, Missouri is and was a properly formed first-class county and subdivision of the State of Missouri.
4. Cause of Action, Jurisdiction, and Venue. This action is brought pursuant to 42 U.S.C § 1983 to redress the deprivation of rights secured by the First and Fourteenth Amendments to the United States Constitution.
5. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 2201. 6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Fernandez resides (to
the extent a homeless person “resides” at a location, in any event Fernandez lives and carries on the affairs of his life) within St. Louis County, Missouri, which is within the Eastern Division of the Eastern District of Missouri; all relevant events occurred within St. Louis County, Missouri; and the Defendant is St. Louis County, Missouri. 7. Declaratory relief is authorized by F. R. Civ. P. 57 and 28 U.S.C. § 2201. 8. Injunctive relief is authorized by F. R. Civ. P. 65. 9. Plaintiff is not asking the Court to grant an injunction to stay any state court proceeding under 28 U.S.C. § 2283. 10. Color of State Law. At all times Defendant St. Louis County, Missouri as a county, and through its agents, employees, officers, and representatives, acted under color of state law. Particularly, at all relevant times the St. Louis County Police and the St. Louis County Counselor have been and are acting under color of the laws, statutes, ordinances, regulations, policies, customs and usages of the State of Missouri, and its political subdivisions. 11. Jury Demand. Plaintiff demands a jury trial on his damages for his Monell claims and his state law claim.
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12. County Code Chapter 804. Chapter 804 of the St. Louis County Code of Ordinances (the “Code”) is titled “Peddlers and Solicitors Code,” and was passed by the St. Louis County Council through four enabling ordinances: Ord. No. 6201 passed 2-14-1972; Ord. No. 13091 passed 2-13-1987; Ord. No. 14722 passed 12-1-89; and Ord. No. 21507 passed 8-19-03. For ease of reading and completeness, a copy of the Chapter 804 and its Schedule I from where the Code is published on the County website is attached as Exhibit 1 and is incorporated herein by reference. F. R. Civ. P. 10(c). 1. (See generally List of Exhibits attached to this Complaint.) For the sake of completeness, certified copies of the four enabling ordinances are attached as Exhibits 2 through 5 respectively and incorporated herein by reference. Id.
13. Schedule I to Chapter 804, which for ease of reading and completeness is incorporated in Exhibit 1, designates intersections within the County for restricted solicitation in accordance with Section 804.165. Exhibit 6 through 19 are certified copies of the fourteen enabling ordinances for Schedule I and are incorporated herein by reference. F. R. Civ. P. 10(c).
14. The current version of the form used by the County for applications for a Solicitor license is available on the St. Louis County website at: https://www.stlouisco.com/Your-Government/Revenue/Licensing-Division/PeddlersSolicitor-Code (last accessed May 21, 2019) A printed copy of the website is attached as Exhibit 20 and is incorporated herein by reference. F. R. Civ. P. 10(c).
15. The fee for a Solicitor license is currently $13.00, according to the County website.
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16. The County website further states that “Licenses are valid for six (6) months from the date of issuance, and cannot be renewed. If another license is desired, the licensing process must be repeated.”
17. An applicant for a Solicitor license must undergo a separate background check by the St. Louis County Police. As of the date of the filing of this Complaint, the fee for a background check is $4.50 for a background check as to St. Louis County only, and $4.50 for a background check as to St. Louis City only. The total cost for a City and County Record Check is $9.00. See St. Louis County Police website at: https://www.stlouiscountypolice.com/Citizen-Resources/Background-Checks (last accessed May 21, 2019) A printed copy of the website is attached as Exhibit 21 and is incorporated herein by reference. F. R. Civ. P. 10(c).
18. The current application form is a one-page document available for download in PDF format from the County website at: https://www.stlouisco.com/Portals/8/docs/document%20library/revenue/lic/apps/PEDDL ER_SOLICITOR_VENDOR_8.15.16.pdf (last accessed May 21, 2019) A printed copy of the website is attached as Exhibit 22 and is incorporated herein by reference. F. R. Civ. P. 10(c).
19. Fernandez has been charged 21 times since October 2017 for violating Section 804.050 within unincorporated County. The penalty for each such violation is a fine between $10.00 and $100.00, or up to thirty days in the County jail, or both. Section 804.260.
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20. County Prohibition on Pedestrians Soliciting Rides or Business Opportunity. Code Section 1209.090 - Pedestrians Soliciting Rides or Business, states in Subsection 1: No person shall stand in a roadway for the purpose of soliciting a ride, employment, charitable contribution or business from the occupant of any vehicle. (Ord. No. 12347, 11-22-85) The word “roadway” is defined in Section 1202.010.28 as: Roadway: That portion of a road intended for use by the general traveling public, typically delineated by curbs, edge lines, or the edge of pavement. (O. No. 26424, 5-24-16) The word “median” is not defined by the Traffic Code in Title XII. The word “sidewalk” is defined in Section 1202.010.31 as: Sidewalk: A paved area separate from the highway or roadway intended for use by pedestrians. (O. No. 26424, 5-24-16) Section 1215.010 states that a violation of Section 1209.090 is punishable by imprisonment in the County Jail not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000.00), or by both such fine and imprisonment. (O. No. 12347, 11-22-85) For ease of reading and completeness, a copy of the roadway solicitation prohibition, the definition, and the penalties from the County website is attached as Exhibit 23, and is incorporated herein by reference. F. R. Civ. P. 10(c). Certified copies of the enabling Ordinances are attached as Exhibits 24 and 25. Id.
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21. As detailed below, in connection with his begging, Fernandez has been charged ten times since October 2017 for alleged speech and conduct in violation of Section 1209.090(1).
22. County Vagrancy Prohibition. Code Sections 716.080 and 716.090 prohibit vagrancy in unincorporated portions of the County1, such as where Fernandez usually begs from a median at the northbound I-55 exit to northbound S. Lindbergh Blvd. (O. No. 3729, 1028-65.) The penalties for a violation are a fine of not more than one thousand dollars ($1,000.00) or imprisonment in the St. Louis County Jail for not more than one year, or both. Section 716.180 (O. No. 3729, 10-28-65.) For ease of reading and completeness, a copy of the vagrancy prohibition and penalties sections of Chapter 716 from the County website is attached as Exhibit 26, and is incorporated herein by reference. F. R. Civ. P. 10(c).). A certified copy of the enabling Ordinance is attached as Exhibit 27. Id.
23. As detailed below, in connection with his begging, Fernandez has been charged eight times since October 2017 for alleged speech and conduct violating Sections 716.080 and 716.090.
24. Facts. Fernandez is a poor, homeless, unemployed, single man. See generally Exhibit 37 (Affidavit of Plaintiff Robert Fernandez), incorporated herein by reference. Fed. R. Civ. P. 10(c).
25. Fernandez lacks a permanent residence, although he does carry a valid Missouri driver license that describes his address as 3800 South Broadway, St. Louis, MO 63118.
1 See Code Section 716.020 (“Scope. —The provisions of Sections 716.040 through 716.180 shall apply to the area of St. Louis County outside incorporated cities, towns and villages. (O. No. 3729, 10-28-65)).
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That is the location of a treatment shelter where Fernandez has stayed in the past. Fernandez has no State agency licensure other than his valid Missouri driver’s license. 26. Other than his Solicitor license (described below) and his Missouri driver’s license, Fernandez’s only possessions are his clothes, his backpack, a cellphone and a small handheld sign (described below). 27. Fernandez spends parts of his days and all of his nights with a female companion, Skye Herron. Ms. Herron is disabled and depends on Fernandez for life assistance. 28. Fernandez does not receive food stamps or welfare, but he is enrolled in Gateway Health, a temporary health care program for uninsured adults in St. Louis City and County. 29. Ms. Herron receives food stamps and Medicaid. 30. In order to obtain money for his and Ms. Herron’s basic essentials, Fernandez begs for financial assistance—that is, for cash donations—from the drivers of vehicles stopped at red lights. Fernandez stands on the sidewalk ior median next to various intersections in St. Louis County, usually at the northbound exit from Interstate 55 to northbound S. Lindbergh Blvd. 31. Fernandez’s method of communication is to carry a small cardboard sign that reads:
Homeless Anything Helps God [cross] Bless 32. By communicating his homelessness, asking for financial assistance, and inviting the blessing of God, the content of Fernandez’s message communicates subjects of public concern to members of the public in an archetypal traditional public form, that is, a traffic median. 33. Fernandez only begs from cars when they are stopped at a red light and he can communicate with a driver.
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34. When begging, Fernandez is always careful as to his own safety and the safety of motorists.
35. When begging, Fernandez does not impede traffic. 36. Fernandez does not distribute any items of any kind to anyone, and particularly he does
not distribute literature to drivers of stopped vehicles. 37. Fernandez begs passively—that is, other than smiling, he carries his sign and only
approaches motorists who indicate they will give him something. 38. Fernandez is aware that the St. Louis County “Peddlers and Solicitor’s Code,” codified at
Sections 804.010 through 804.260, requires a person who wishes to solicit for cash to obtain a Solicitor license through a notarized application to the County Department of Revenue, Division of Licenses. Sections 804.030(1) and 804.040. 39. Fernandez has on two occasions applied at the Division for a Solicitor license and has obtained the following licenses: a. License no. 3371, expired April 16, 2019, and b. License no. 3483, expiring September 29, 2019. See Exhibit 28 (Solicitor licenses), incorporated herein by reference. F. R. Civ. P. 10(c). 40. Each application process took two to three weeks, on inference because Fernandez has a Suspended Imposition of Sentence (probation) on a County municipal ordinance violation for stealing DVDs from a Borders bookstore. 41. In that case Fernandez successfully completed his probation without further incident. 42. If the holder of a valid Solicitor license wishes to solicit at certain “designated intersections”, as listed in Schedule I, then Section 804.165.3 requires that person to present to the Division an application for specific authorization for a desired specific
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location and date, and to have that application approved. The application for specific authorization must be made during the period 90 days to 7 days in advance of the desired date. Section 804.165.3. 43. When Fernandez obtained his second Solicitor license no. 3483, he also obtained with that license authorization for solicitation at certain Schedule I intersections on three days:
a. On April 5, 2019, authorization to solicit at the intersections of i. Interstate 55 and S. Lindbergh Blvd., ii. Baptist Church Road and S. Lindbergh Blvd., and
iii. Lemay Ferry and South County Center Way; b. On each of April 12 and 13, 2019, authorization to solicit at the intersections of
i. Interstate 55 and S. Lindbergh Blvd., ii. Interstate 55 and Reavis Barracks, and iii. Telegraph Road and Wal Mart. 44. Fernandez’s preferred location for soliciting is from the median where the northbound exit from Interstate 55 splits traffic to northbound S. Lindbergh Blvd. 45. Photographs of Fernandez soliciting at that location are attached as Exhibits 32 and 33, and are incorporated herein by reference. F. R. Civ. P. 10(c). A photograph of that area generally is attached as Exhibit 34. Id. 46. Two Google Maps of this location at various levels of zoom are attached as Exhibits 35 and 36, and incorporated herein by reference. F. R. Civ. P. 10(c). 47. Fernandez solicits at this location on an almost daily basis. He is further aware that even if he did obtain advance approval, that Section 804.165.1 limits begging at such a location to three days per year.
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48. Between October 31, 2017, and May 9, 2019, Fernandez has been issued 39 citations by the St. Louis County Police for Code violations related to his solicitation or vagrancy. See Exhibit 29 (record of 39 citations), incorporated herein by reference. F. R. Civ. P. 10(c).
49. Ten of the citations are for “Pedestrian Soliciting Contributions, Employment or Business from Vehicles.” County Code Section 1209.090.
50. Eight of the citations are for Vagrancy. County Code Sections 716.080 and 716.090. 51. Twenty-one of the citations are for soliciting without a license. County Code Section
804.050. 52. In the past, on approximately three occasions when Fernandez received the above
citations, he has been arrested for soliciting without a valid Solicitor license, taken down to a County police station for processing, and then released on his own recognizance. 53. On one occasion only, after his arrests, Fernandez applied to solicit at this I-55/S. Lindbergh Blvd. intersection on a particular day. He was approved and was issued an identification card. He did not receive a citation that day and was not otherwise approached by the County Police. 54. By way of example, four recent citations Fernandez received are for soliciting without a license at northbound exit ramp of I-55 as it runs into S. Lindbergh Blvd. The details are as follows: a. At approximately 12:20 p.m. on March 23, 2019 Fernandez was cited by St. Louis
County Police Officer Rehagen, Badge 04187, for solicitation without a valid Solicitor license, pursuant to St. Louis County Code Section 804.050, ticket no.
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180575635. Fernandez had his Solicitor license with him and produced it to the officer. b. At approximately 11:39 a.m. on March 24, 2019, the next day, Fernandez was cited by the same officer for the same offense, ticket no. 180575694. Again, Fernandez had his Solicitor license with him and produced it to the officer. c. At approximately 10:30 a.m. on March 31, 2019, a week later, Fernandez was cited by St. Louis County Police Officer Scholbe, Badge 04279, for the same offense, ticket no. 180576359. Again Fernandez had his Solicitor license with him and produced it to the officer. d. At approximately 12:06 p.m. on April 29, 2019, Fernandez was cited by St. Louis County Police Officer Igleheart, Badge 03964, for the same offense, ticket no. 180579919. Again Fernandez had his Solicitor license with him and produced it to the officer. 55. None of Fernandez’s citations has gone to warrant, and Fernandez has almost always appeared for municipal court dates. 56. During the time when St. Louis County was prosecuting Fernandez on 38 citations in St. Louis County southern division municipal court, he retained undersigned counsel. 57. On Thursday, May 9, 2019 a St. Louis County Counselor entered a dismissal/nolle prosequi on the first 38 citations, which were all that were then pending. See Exhibit 31 (Nolle prosequi memorandum in County municipal court), incorporated herein by reference. F. R. Civ. P. 10(c). 58. A contemporaneous email on May 9 to undersigned counsel from the County Counselor’s office indicated that it would have dismissed/nolle prosequi the charges whether or not
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Fernandez had retained counsel. See Exhibit 30 (Email from Assistant County Counselor Andrea Alper dated May 9, 2019), incorporated herein by reference. F. R. Civ. P. 10(c).). 59. Later that same day, May 9, the St. Louis County police again cited Fernandez for solicitation without a Solicitor license pursuant to Section 804.050, ticket no. 180580890. Fernandez, again, had his Solicitor license and produced it to the officer, but still received a citation. This was Fernandez’s 39th citation since October 2017 for solicitation- or vagrancy-related Code violations; his 21st citation for soliciting with a valid Solicitor license; and approximately his eighth citation in which he produced his valid Solicitor license but was cited anyway. 60. None of Fernandez’s citations states as the offense violated failing to obtain specific authorization for a desired specific location and date under Section 804.165.3. 61. Fernandez believes that St. Louis County is citing and prosecuting him for the listed offenses in order to restrict his speech, all because he is a homeless person engaged in the expressive speech and expressive conduct of begging for money, and St. Louis County finds his status, appearance and speech offensive and therefore wishes to banish him and the speech from public places. 62. Fernandez objectively fears that he will be cited again for soliciting and/or vagrancy. 63. Fernandez objectively fears that he will be arrested again for soliciting and/or vagrancy. 64. The penalty for a pedestrian soliciting in the roadway without a valid license is imprisonment in the County Jail not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000.00), or by both such fine and imprisonment. See Exhibit 7 (Section 1215.010 penalties).
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65. Fernandez cannot afford to pay such a fine without begging, and Fernandez does not want to go to jail merely for speaking and asking for money and/or for failing to pay a fine for such conduct.
66. The penalty for vagrancy is a fine up to $1,000, or imprisonment for up to one year in jail, or both. See Exhibit 8 (Section 716.180 penalties).
67. Fernandez cannot afford to pay such a fine without begging, and Fernandez does not want to go to jail merely for speaking and asking for money and/or for failing to pay a fine for such conduct.
68. The penalty for soliciting without a valid Solicitor license is a fine not less than $10 and up to $100, or imprisonment up to thirty days, or both.
69. Fernandez cannot afford to pay such a fine without begging, and Fernandez does not want to go to jail merely for speaking and asking for money and/or for failing to pay a fine for such conduct.
70. The requirement that Fernandez obtain a Solicitor license every six months to beg for money in a public place significantly burdens his speech and expressive conduct in begging for financial assistance, because it requires him to go to the County government center to obtain the license, fill out an application and have it notarized, pay fees, and carry the license in order to beg.
71. Ongoing Fear of Harassment and Bad Faith Prosecution. Fernandez continues to beg for financial assistance with a valid Solicitor license.
72. Fernandez has been exposed to 39 citations, and then 38 nolle prosequi, with the 39th citation being issued the same day as the entry of the nolle. This creates an inference that County officials had no intention of following through on these prosecutions and that the
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prosecutions were undertaken without hope of obtaining valid convictions, or in the alternative, regardless of the outcome of the citations. 73. The repeated citations by the County of Fernandez, despite his possession of a valid Solicitor license, create an inference of bad faith prosecution or harassment warranting federal equitable relief. 74. On inference, the purpose of Fernandez’s repeated citations and prosecutions is to deter him from engaging in the protected speech and the expressive conduct of begging. 75. A person of ordinary firmness would have an objectively reasonable fear under such circumstances that he would be cited and prosecuted again for violating Chapter 804, even though that person possessed and produced a valid Solicitor license. 76. Each of the solicitation regulations and prohibitions of Chapter 804, the solicitation prohibitions in Section 1209.090, and the vagrancy prohibitions of Sections 716.080 and 716.090, flagrantly violate express constitutional prohibitions. 77. Under Missouri law, the jurisdiction of a municipal court is limited to hearing and determining municipal ordinance violations, and the municipal court cannot issue declaratory or injunctive relief. 78. Legal Claims – Chapter 804. Begging by a homeless person, including the use of a small handheld sign to express a message to fellow citizens, is unquestionably protected by the First Amendment. 79. A County police officer must necessarily examine the content of Fernandez’s speech to determine whether or not Fernandez is required to obtain a Solicitor license under Chapter 804. For example, a sign that said “Impeach the President” or “Come to Jesus” would not be governed by the Code.
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80. Chapter 804 violates the free speech clause of the First Amendment in requiring that

Fernandez apply for and obtain a Solicitor license before engaging in the speech and

expressive conduct of begging for money from the drivers of stopped cars by standing on

the median of an intersection, which is a traditional public forum.

81. Section 804.250 exempts individuals soliciting:

a.

On behalf of churches, fraternal organizations, and

b.

For political activity governed by Missouri Campaign Finance Law, RSMo.

Chapter 130.

82. Thus some speakers have their speech and expressive conduct favored over others based

on the content of the speech and the identity of the speaker. An officer enforcing Chapter

804 would necessarily have to examine the content of the speech to determine whether or

not a violation has occurred. This favors some speakers and speech over others, and

therefore is a content-based regulation,

83. Alternatively, even if a Solicitor license may be generally required before Fernandez

engages in speech and expressive conduct, the following requirements still unduly burden

such speech and conduct:

a. Fernandez, and third parties affected in a manner dissimilar to Fernandez, must

complete a written application, pay a license fee, undergo a County Police

background check, and seek the services of a Notary Public (which in

Fernandez’s experience was offered by the division at the time of his application)

before engaging in protected speech and expressive conduct in a traditional public

forum;

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b. Fernandez, and third parties affected in a manner dissimilar to Fernandez must carry and disclose their identities on a Solicitor license card;
c. Fernandez, and third parties affected in a manner dissimilar to Fernandez, must have a local residence and address to receive mail;
84. The standards for issuance or revocation of a Solicitor license violate the due process requirements of the Fourteenth Amendment as follows: a. The standards of Section 804.130 are too vague and discretionary for evaluating a Solicitor license. b. The standards of Section 804.160 are too vague and discretionary for revoking a Solicitor license. c. That a license can be denied for violation of Section 804.040, or because a previous license was revoked for cause during a twelve-month period is overly burdensome and not narrowly tailored. d. That an individual representing a third-party organization or employer having four (4) or more representatives convicted of violating Chapter 804 can be denied a Solicitor license, is overly burdensome and not narrowly tailored. e. That a Solicitor license can be revoked for fraud, misrepresentation or false statement in the course of carrying on Solicitor business is overly burdensome and not narrowly tailored. Further, the First Amendment permits false statements absent a legally cognizable harm. f. That a Solicitor has otherwise on a previous occasion solicited in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the health, safety, or general welfare of the residents of St. Louis
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County, is overly burdensome and not narrowly tailored, and also is too vague and discretionary. g. That there is a delay of unknown time for the County Police to conduct background check and then the Division to process and approve a Solicitor license is a prior restraint, overly burdensome and not narrowly tailored. 85. Even if Section 804.165 and Schedule I may be found to be content-neutral restrictions as to time, place and manner of speech and expressive conduct, and in the interests of public or traffic safety, nevertheless they violate the First Amendment because the three-day limitation to daylight hours is (a) arbitrary and capricious in that it cannot be safe and orderly to solicit three days a year but not the other 362 calendar days, (b) geographically over-inclusive in that it prohibits begging at intersection locations where there is an absence of evidence supporting the existence of a threat to public safety and traffic flow, (c) is not narrowly tailored to serve a significant government interest in that it prohibits begging even when conducted in a safe manner from a traffic median, not causing a disruption to or delay of traffic, and (d) does not leave open ample alternative channels for communication in that, in a suburban place such as St. Louis County where the populace travels about by vehicle, begging from motorists is the only viable channel for such a communication by a poor, homeless person. 86. The requirement that Fernandez obtain a Solicitor license every six months to beg for money in a public place significantly burdens Fernandez’s speech and expressive conduct in begging for financial assistance.
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87. Section 804.165 and Schedule I are an unreasonable time restriction in limiting approved solicitations to only three calendar days per year, between sunrise and sunset, at certain designated intersections.
88. Section 804.165 and Schedule I are an unreasonable prior restraint in requiring seven (7) days advance notice (but not more than ninety (90) days advance notice) and application to the Division at certain intersections.
89. Legal Claims – Pedestrian Solicitation in the Roadway. Section 1209.090’s prohibitions are content-based because they apply to speech and expressive conduct related only to a person standing in the road “for the purpose of soliciting a ride, employment, charitable contribution or business from the occupant of any vehicle.”
90. The prohibitions do not outlaw a person from entering the roadway to ask for directions; to pick up a motorist’s dropped glove and return it to its owner; or to make statements or expressions related to political, religious, artistic, or other categories of speech. Asking for money for a church or a painting is permitted-as is solicitation of votes or ballot signatures. Thus the regulation is so underinclusive of certain types of speakers and speech that its very underinclusiveness calls into question the purported purpose of the regulation.
91. In order to enforce the prohibitions, an official must necessarily examine the content of the message that is conveyed.
92. The prohibitions necessarily target the words of solicitation—that is asking for a ride, a job, a donation, or business—but not the act of standing in the roadway. Thus the prohibitions are not content-neutral, and cannot survive strict scrutiny.
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93. Fernandez suggests that Section 1209.090 is constitutionally infirm because the state of First Amendment law has changed since Section 1209.090 was upheld under a narrow tailoring analysis by the Eighth Circuit in 1991, which affirmed the decision below by a judge of this Court in 1989. ACORN v. St. Louis County, 930 F.2d 591 (8th Cir. 1991), affirming 726 F. Supp. 747 (E.D. Mo. 1989) (Limbaugh, J.); see also Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, 775 F.3d 969, 972 (8th Cir. 2015)
94. In the alternative, Fernandez respectfully suggests that the Eighth Circuit, the district court and the parties to ACORN and KKK erred in agreeing and holding that Section 1209.090 is content neutral, because it only applies to certain subjects of speech. An officer enforcing Section 1209.090 must necessarily examine the content of the speech to determine whether or not the speaker is standing afoul of the prohibition. Section 1209.090 does not prohibit a person from standing in the roadway to speak on subjects other than “soliciting a ride, employment, charitable contribution or business from the occupant of any vehicle.”
95. In the alternative, under a content-neutral analysis, Fernandez invites this Court to reconsider ACORN in light of case law developed since 1991, and to find that Section 1209.090 is not narrowly tailored to the County’s interest in traffic safety, and that there are myriad of less restrictive means for the County to promote traffic safety, such as the enforcement of other existing traffic and parking laws. The generally accepted way of dealing with unlawful conduct that may be intertwined with First Amendment activity is to punish it after it occurs rather than to prevent the First Amendment activity from occurring in order to obviate the possible unlawful conduct.
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96. Legal Claims – Vagrancy. The vagrancy prohibition in the Code at Section 716.080 and 716.090 is a status offense that criminalizes the statuses of being homeless, poor, and unemployed. Further the vagrancy prohibition is void for vagueness; does not give reasonable notice to a reasonable and careful person of what conduct is proscribed; and invites arbitrary and capricious enforcement by the police officer on his or her beat.
97. The Missouri Supreme Court has invalidated similar vagrancy ordinances. 98. Fernandez challenges the vagrancy ordinance both as applied to him, and on its face, for
violating the equal protection guarantees of the Fourteenth Amendment by targeting only poor able-bodied males. 99. Attorney’s Fees and Costs. Fernandez is accruing reasonable attorney’s fees, and court costs (both taxable and non-taxable), and claims those fees and cost pursuant to 42 U.S.C. § 1988.
Count I Chapter 804 Solicitation Regulations 100. Plaintiff Robert Fernandez incorporates all prior paragraphs. WHEREFORE Plaintiff prays this Court to: a. Issue a declaratory judgment under 42 U.S.C. § 1983 declaring that the Solicitor licensing requirements of Chapter 804 violate the free speech clause of the First Amendment; b. Issue preliminary and permanent injunctions under 42 U.S.C. § 1983 enjoining enforcement of the Solicitor licensing requirements of Chapter 804; c. Award Plaintiff his costs and attorney’s fees and costs under 42 U.S.C. § 1988; and
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d. Grant for such other relief as may be just, meet and reasonable. Count II
Section 1209.090 Pedestrian Roadway Solicitation Prohibition 101. Plaintiff Robert Fernandez incorporates all prior paragraphs.
WHEREFORE Plaintiff prays this Court to: a. Issue a declaratory judgment under 42 U.S.C. § 1983 declaring that the pedestrian
roadway solicitation prohibitions at Section 1209.090 violate the free speech clause of the First Amendment; b. Issue preliminary and permanent injunctions under 42 U.S.C. § 1983 enjoining enforcement of the pedestrian roadway solicitation prohibitions at Section 1209.090; c. Award Plaintiff his costs and attorney’s fees and costs under 42 U.S.C. § 1988; and d. Grant for such other relief as may be just, meet and reasonable.
Count III Sections 716.080 and 716.090 Vagrancy Prohibition 102. Plaintiff Robert Fernandez incorporates all prior paragraphs. WHEREFORE Plaintiff prays this Court to: a. Issue a declaratory judgment under 42 U.S.C. § 1983 declaring that the vagrancy prohibitions at Sections 716.080 and 716.090 violate the due process and equal protection clauses of the Fourteenth Amendment; b. Issue preliminary and permanent injunctions under 42 U.S.C. § 1983 enjoining enforcement of the vagrancy prohibitions at Sections 716.080 and 716.090;
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c. Award Plaintiff his costs and attorney’s fees and costs under 42 U.S.C. § 1988; and
d. Grant such other relief as may be just, meet and reasonable. Count IV
Damages, St. Louis County, Fourth Amendment violations 103. Plaintiff Robert Fernandez incorporates all prior paragraphs. 104. Plaintiff has been seized within the meaning of the Fourth Amendment by arrest and
detention in the County police station three times for violating Chapter 804 by begging for financial assistance on the side of County roadways. 105. (Plaintiff does not make Fourth Amendment seizure claims based on his thirty-eight citations alone.) 106. Chapter 804 is the law of Defendant St. Louis County, and as such is a custom, policy and practice of Defendant St. Louis County. 107. There is no substantially similar Missouri state statute prohibiting Plaintiff’s conduct in begging for financial assistance on the side of County roadways. 108. Chapter 804 as written and as enforced was the moving force behind Plaintiff’s three seizures. WHEREFORE Plaintiff prays this Court for compensatory damages for his three seizures under 42 U.S.C. § 1983 from Defendant St. Louis County, Missouri in an amount to be determined by a jury; for his reasonable attorney’s fees and costs under 42 U.S.C. § 1988; and for such other relief as may be just, meet and reasonable.
Count V Damages, St. Louis County, First Amendment chilling
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109. Plaintiff Robert Fernandez incorporates all prior paragraphs. 110. Plaintiff has been seized within the meaning of the Fourth Amendment by arrest and
detention in the County police station three times for violating Chapter 804 by begging for financial assistance on the side of County roadways. 111. (Plaintiff does not make Fourth Amendment seizure claims based on his thirty-eight citations alone.) 112. Plaintiff’s seizures constitute harassment for exercising his First Amendment right to speech and expressive conduct to beg for financial assistance in a public place, that is, a median near an intersection in St. Louis County. 113. Such seizures would objectively chill a person of ordinary firmness from the exercise of First Amendment rights to speech and expressive conduct in begging for financial assistance. 114. Plaintiff fears future seizures for his begging for financial assistance in a public place. 115. The Solicitor regulations and prohibitions of Chapter 804 are the law of Defendant St. Louis County, and as such are a custom, policy and practice of Defendant St. Louis County. 116. There is no substantially similar Missouri state statute prohibiting Plaintiff’s conduct in begging for financial assistance on the side of County roadways. 117. Chapter 804 as written and as enforced was the moving force behind Plaintiff’s three seizures. WHEREFORE Plaintiff prays this Court for compensatory damages for his three seizures under 42 U.S.C. § 1983 from Defendant St. Louis County, Missouri in an amount to be
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determined by a jury; for his reasonable attorney’s fees and costs under 42 U.S.C. § 1988; and for such other relief as may be just, meet and reasonable.
Count VI Damages, St. Louis County, Missouri state law, Malicious Prosecution 118. Plaintiff Robert Fernandez incorporates all prior paragraphs. 119. Plaintiff has been cited and prosecuted thirty-eight times for violating Code Chapter 804, Code Section 1209.090, and Code Sections 716.080 and 716.090 (the two solicitation regulations, and one vagrancy prohibition). 120. (Fernandez does not list here his one remaining outstanding citation for soliciting without a valid Solicitor license.) 121. Chapter 804 is unconstitutional on its face and as applied to Plaintiff. 122. Section 1209.090 is unconstitutional on its face and as applied to Plaintiff. 123. Code Sections 716.080 and 716.090 is unconstitutional on its face and as applied to Plaintiff. 124. The purpose of the County’s citations and prosecutions is to deter homeless persons such as Plaintiff from begging, and not bringing persons such as Plaintiff to justice. 125. An ordinarily careful person would not believe that Plaintiff was guilty of the offenses charged in the citations because the offenses were clearly established to be an unconstitutional prohibition. 126. Defendant St. Louis County instigated and continued thirty-eight prosecutions that terminated in favor of Plaintiff. 127. In so doing, Defendant St. Louis County acted maliciously and without reasonable grounds.
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128. Plaintiff was thereby damaged. WHEREFORE Plaintiff prays this Court for compensatory damages for Missouri state
law malicious prosecution to be recovered from Defendant St. Louis County, Missouri in an amount to be determined by a jury; and for such other relief as may be just, meet and reasonable. Respectfully submitted, Co-Counsel for Plaintiff /s/ Hugh A. Eastwood Hugh A. Eastwood, 62058MO Attorney at Law 7911 Forsyth Blvd., Ste. 300 St. Louis, Missouri 63105-3825 hugh@eastwoodlawstl.com (314) 809 2343 (314) 863 5335 Fax
/s/ W. Bevis Schock . W. Bevis Schock, 32551MO Attorney at Law 7777 Bonhomme Ave., Ste. 1300 St. Louis, MO 63105 wbschock@schocklaw.com Fax: 314-721-1698 Voice: 314-726-2322
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 Case: 4:19-cv-01638-SNLJ Doc. #: 22 Filed: 10/10/19 Page: 1 of 1 PageID #: 341

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROBERT FERNANDEZ,

)

)

Plaintiff,

)

)

V.

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ST. LOUIS COUNTY, MISSOURI,

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)

Defendant.

)

Case No. 4:19-cv-01638-SNLJ

ORDER

The matter is before the Court on Plaintiffs Motion for Preliminary Injunction as

to the Vagrancy Ordinance of St. Louis County, Missouri, Count III of Plaintiffs

Complaint.

Plaintiff brings a facial and as-applied challenge under the due process clause of

the Fourteenth Amendment.

The parties consent to the granting of a preliminary injunction as to Sections

716.080 and 716.090 of the St. Louis County Revised Ordinances

IT IS HEREBY ORDERED that St. Louis County, Missouri is enjoined from

enforcement of its Vagrancy Ordinance No. 3729, enacted 10-28-1965, and codified at

Sections 716.080 and 716.090 of the St. Louis County Revised Ordinances.

Dated this I(} ~

day of October, 2019.
Ar~, ~ /?-,L-~✓-/L ,
STEPHEN N. LIMBAUGH, Af..
UNITED STATES DISTRICT COURT

 
 Case: 4:19-cv-01638-SNLJ Doc. #: 70 Filed: 05/11/21 Page: 1 of 26 PageID #: 1132

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROBERT FERNANDEZ, Plaintiff,
v. ST. LOUIS COUNTY, MISSOURI,
Defendant.

)

)

)

)

)

Case No. 4:19-cv-01638-SNLJ

)

)

)

)

MEMORANDUM AND ORDER

Plaintiff Robert Fernandez sues defendant St. Louis County, Missouri, for alleged

violations of his rights under the First, Fourth, and Fourteenth Amendments to the United

States Constitution and Missouri state law. See 42 U.S.C. § 1983; 28 U.S.C. § 1367(a).

Defendant has repeatedly cited and arrested plaintiff for violating its solicitation and

vagrancy ordinances by begging for money at busy County intersections. Plaintiff

challenges three of these ordinances and seeks declaratory and injunctive relief and

damages. The parties agreed to submit this case for decision to the Court on briefs and

stipulated facts. See Fed. R. Civ. P. 39(a)(1). Having considered the parties’ pleadings,

trial briefs, exhibits, and stipulated facts, the Court makes the following findings of fact

and conclusions of law. See id. at 52(a).

FINDINGS OF FACT

The parties stipulated to most of the relevant facts. Plaintiff describes himself as a

poor, homeless, unemployed man who begs for money from motorists in St. Louis County

to support himself and his companion. Since 2017, police have cited plaintiff 64 times and

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arrested him four times for his solicitation activities. Police have also given plaintiff warnings about his solicitation activity without citing or arresting him and told him to move along, which plaintiff has done. Plaintiff challenges three ordinances under which he has been cited and arrested: (1) the solicitor licensing requirements of Chapter 804, the “Peddlers and Solicitors Code”; (2) section 1209.090.1, which prohibits standing in the roadway for certain solicitation purposes; and (3) sections 716.080 and 716.090, which define and prohibit vagrancy.
1. Chapter 804 – Peddlers and Solicitors Code. Plaintiff challenges the provisions of St. Louis County Code Chapter 804 that
require a person to obtain a license before soliciting property or financial assistance in public and that restrict solicitation at certain designated intersections. Defendant has cited plaintiff 31 times and arrested him four times for soliciting without a license and has held him pursuant to these arrests for a total of 28 hours and 26 minutes.1
Section 804.050 requires a “solicitor” to obtain a license before soliciting, reading: “It shall be unlawful for any solicitor to engage in such business in St. Louis County, without first having obtained a license therefor from the Division.” St. Louis County Peddlers and Solicitors Code § 804.050. The chapter defines a “solicitor” as:
Solicitor: Any individual: (a) traveling by foot, wagon, automobile, motor truck, or any type of
conveyance from house to house, or place to place; or (b) positioned on or near street corners, public ways or places of public
assembly or congregation; or
1 Plaintiff’s trial brief claims 29 hours and 2 minutes of seizures, which contradicts the parties’ stipulation and plaintiff’s exhibit. See Pl.’s Ex. 42 [Doc. #56-42]. The Court’s finding relies on the stipulation and record evidence.
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(c) located in or near the roadway or right-of-way of a roadway for the purpose of: (i) soliciting property or financial assistance of any kind; or (ii) selling or offering for sale any article, tag service, emblem, publication or ticket; or (iii) taking or attempting to take orders for the sale of goods, wares, books, charts, maps, magazines, or other merchandise for future delivery, or for services to be furnished or performed then or in the future . . .
Id. § 804.030(4) (emphasis added). To obtain a solicitor’s license, applicants must pay a $13.00 license fee, complete
notarized paperwork, attach photographs of themselves, and undergo a background check. Chapter 804 lists several reasons an application may be denied, including if the applicant lacks “good moral character and reputation.” See St. Louis County Peddlers and Solicitors Code § 804.130(c). A solicitor’s license expires after six months and cannot be renewed, requiring a person to repeat the process every six months. Chapter 804 does not set a timeline by which applications must be processed. In plaintiff’s experience, defendant has typically taken between one to three weeks to process his applications.
In addition to the license requirement, section 804.165 limits soliciting at designated intersections to three days per year per person or organization. Section 804.165.1 reads: “It shall be unlawful for any individual to solicit, or to obtain authorization hereunder to solicit, on more than three days per calendar year at any intersection or combination of intersections designated in Schedule I of this code. All such solicitation shall occur between sunrise and sunset.” Id. § 804.165.1. Section 804.165.3 requires any person who wants to solicit at a Schedule I intersection to present a valid solicitor license and file an
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advance application to solicit on the requested dates. Id. § 804.165.3. This section also requires all individuals who solicit under its authority to “comply with all applicable County ordinances and traffic regulations.” Id. § 804.165.4.
Schedule I intersections are high-volume traffic intersections with higher speed limits designed to increase the movement of traffic. Defendant claims section 804.165 serves to reduce the number of solicitors at busy intersections, which reduces the risk of accidents and promotes traffic safety. Plaintiff prefers to solicit at the northbound exit for Interstate 55 at Lindbergh Boulevard, a Schedule I intersection, because he says he makes the most money there. Plaintiff’s financial needs require him to beg almost daily. He claims that he makes less money at other locations and that the suburban nature of St. Louis County necessitates begging at intersections where lots of vehicles pass.
Plaintiff has applied for solicitor’s licenses three times. His first two applications were approved and have expired. The third was pending when the parties submitted this matter. As plaintiff’s preferred place to beg is a Schedule I intersection, he also sought authorization to solicit at certain Schedule I intersections with one of his license applications. He received approval to solicit at his preferred intersection on three days in 2019, the maximum number of days allowed per person in one calendar year. Plaintiff admits he has solicited at Schedule I intersections on other days without authorization.
Plaintiff has not been convicted of any violations under these ordinances and thus has not been imprisoned or paid any fines. In May 2019, a St. Louis County Counselor entered a nolle prosequi on the citations then pending against plaintiff. Plaintiff continued to receive citations after he filed this lawsuit, with his last arrest occurring on August 22,
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2019. In December 2019, a County municipal judge dismissed all citations then pending against plaintiff following plaintiff’s motion to dismiss. Plaintiff claims he received notice of additional court dates for pending citations in July 2020, which caused him fear, and that these court dates were later cancelled, which put his mind more at ease. Plaintiff fears he will continue to be cited and arrested for soliciting.
Plaintiff has an old shoulder injury that pre-dated the events of this lawsuit. The parties stipulate that because of his handcuffing during an arrest on June 18, 2018, plaintiff’s shoulder dislocated at the site of the old injury, requiring County police officers to take him to the hospital for treatment. Defendant’s exhibits show defendant arrested plaintiff on June 15, 2018, and that, after being detained in a holding cell, plaintiff complained of shoulder and chest pain, was transported to the hospital for treatment, and was deemed fit for confinement. Plaintiff’s exhibits include one set of medical records for a hospital visit on September 8, 2018, which is not on or around a date on which plaintiff was arrested. Those records indicate plaintiff dislocated his shoulder by slipping and falling on the concrete approximately 30 minutes before arriving at the hospital.
Defendant submitted evidence of two accidents involving solicitors at Schedule I intersections in the past three years. In one, a child soliciting for a youth team stepped off a median, stumbled, and struck a vehicle’s side mirror. In the other, a driver rear ended another vehicle while trying to get money out to give to a solicitor by the exit lane.
A County police officer claims that vehicles on the exit ramp have moved over when plaintiff walked towards them and that his precinct receives three to four phone call complaints each day about plaintiff soliciting at I-55 and Lindbergh. Defendant’s Exhibit
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A contains audio recordings of six such calls between August and November 2019. These complaints include that plaintiff was “blocking up traffic, taking people’s money”; that he is “always there” and “goes in and out of traffic when the light’s red”; that the same “Mexican or black, whatever he is” beggar was there again; that it is “disturbing to live in St. Louis County . . . and have beggars at the damn intersection”; and that “it’s bad enough I can’t even take my kids, you know, to a baseball game in the city . . . because of all the homeless beggars . . . I’ll be damned if they’re going to start invading St. Louis County.” Def.’s Ex. A [Doc. #59-1].
2. Section 1209.090 – Pedestrians Soliciting Rides or Business. Plaintiff challenges section 1209.090.1 of the St. Louis County Code, which reads:
“No person shall stand in a roadway for the purpose of soliciting a ride, employment, charitable contribution or business from the occupant of any vehicle.” St. Louis County Traffic Code § 1209.090.1. Defendant has cited plaintiff 14 times under this section.
Plaintiff begs by carrying a sign stating he is homeless and seeking help. The parties agree plaintiff’s practice is to stand on a sidewalk or median to beg from drivers. Plaintiff claims he only approaches motorists if they indicate they will give him something. Plaintiff maintains he is always careful of his own safety and motorist safety and does not “stand” in the roadway; he claims he only briefly enters the shoulder or curbside to receive donations from stopped motorists. A County police officer claims he has seen plaintiff walking in the roadway to solicit and has seen him enter the second lane of traffic at I-55 and Lindbergh. The parties agree that solicitors who enter traffic lanes when the light is green or changes to green can cause traffic to slow down or stop and are at risk of being
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hit by moving vehicles. County police officers claim solicitors create a safety hazard when
they solicit in roadways and can cause driver distraction, which can lead to accidents.
3. Sections 716.080 and 716.090 – Vagrancy.
Plaintiff challenges sections 716.080 and 716.090 of the St. Louis County Code.
Section 716.080 reads: “A person shall not be a vagrant.” St. Louis County Petty Offenses
Code § 716.080. Vagrancy is defined in section 716.090:
The following classes of persons shall be deemed vagrant within the meaning of this chapter: (1) Every person without any visible means of support who may be found loitering around houses of ill-fame, gambling houses or places where liquor is sold or drunk. (2) Every person who shall attend or operate any gambling device or apparatus. (3) Every person who shall be engaged in practicing any trick or device to procure money or other thing of value. (4) Every person who shall be engaged in any unlawful calling. (5) Every able-bodied man who shall neglect or refuse to provide for the support of his family. (6) Every person found tramping or wandering around from place to place without any visible means of support.
Id. § 716.090. Defendant has cited plaintiff eight times for vagrancy. Early in this suit,
defendant agreed to stop enforcing these sections, and the County Counselor asked the
County Council to repeal or amend them. The record does not show if this has happened.
CONCLUSIONS OF LAW
1. Exhibits and objections.
The Court considered all the exhibits and affidavits submitted with the trial briefing.
The parties stipulated to the admission of their exhibits without further foundation. The
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Court overrules the relevancy objections the parties included in their Stipulated Facts, including plaintiff’s objection to a County police officer’s testimony that “there have been occasions when vehicles on the exit ramp have moved over when Mr. Fernandez walked towards them” and defendant’s objections to facts regarding the limitations of the municipal court’s jurisdiction and the arguments plaintiff raised there. See Stipulated Facts ¶¶ 68, 74-75 [Doc. #57]. The Court also overrules plaintiff’s request to strike the following testimony by County police officers as undisclosed expert testimony: (1) “drivers who donate money to solicitors can be distracted and can cause accidents”; (2) “persons soliciting in roadways create a safety hazard to themselves and to drivers”; and (3) “limiting the number of solicitors at designated Schedule I intersections promotes public safety because it can reduce the risk of accidents to solicitors and vehicles.” See id. ¶¶ 62-64. The Court will only give this testimony such weight as it may be due.
2. Plaintiff’s claims. Plaintiff has standing for his claims, which defendant does not dispute. See Frost
v. Sioux City, 920 F.3d 1158, 1162 (8th Cir. 2019). Plaintiff brings six claims. Counts IIII seek declaratory and injunctive relief under 42 U.S.C. § 1983. “Section 1983 provides that ‘[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.’” Szabla v. City of Brooklyn Park, 486 F.3d 385, 389 (8th Cir. 2007) (en banc) (quoting 42 U.S.C. § 1983). A local governing body “can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as
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here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
Counts I and II allege the solicitor licensing requirements of Chapter 804 and the roadway solicitation prohibition in section 1209.090 violate the free speech clause of the First Amendment. Count III alleges the vagrancy prohibitions in sections 716.080 and 716.090 violate the due process and equal protection clauses of the Fourteenth Amendment. Plaintiff alleges all three laws are unconstitutional facially and as applied to him. See Citizens United v. Fed. Election Com’n, 558 U.S. 310, 331 (2010) (explaining the distinction between as-applied and facial challenges “goes to the breadth of the remedy employed by the Court”). He asks the Court to declare the ordinances unconstitutional and issue a permanent injunction prohibiting their enforcement.
In Counts IV and V, plaintiff seeks compensatory damages under section 1983. In Count IV, plaintiff claims his arrests under the solicitor license ordinance were unreasonable seizures within the meaning of the Fourth Amendment for which defendant is responsible because the ordinance is the County’s law. In Count V, plaintiff claims his arrests were seizures that constituted harassment for exercising his First Amendment rights; that such seizures would objectively chill a person of ordinary firmness from exercising their First Amendment rights; and that plaintiff fears future seizures for exercising his rights. Finally, Count VI is a malicious prosecution claim for compensatory damages under Missouri state law. Plaintiff alleges the three ordinances were clearly unconstitutional and,
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as such, defendant acted maliciously in prosecuting him under them. Plaintiff also seeks to recover his attorneys’ fees and costs. See 42 U.S.C. § 1988.
3. The challenged portions of the solicitor license ordinance in Chapter 804 are unconstitutional (Count I). Plaintiff challenges the solicitor licensing requirements in Chapter 804, arguing they
are content-based speech restrictions that are not narrowly tailored to further a compelling government interest. The Court first notes the limits of this challenge. Plaintiff does not challenge the provisions of Chapter 804 regulating peddlers. He does not solicit on behalf of a nonprofit, sell anything, or take orders for goods. Plaintiff addresses only the requirements to obtain a license before “soliciting property or financial assistance of any kind” in the County and the provision limiting solicitation at Schedule I intersections. See St. Louis County Peddlers and Solicitors Code §§ 804.030(4), 804.050, 804.165.
“The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting U.S. Const., Amdt. 1). “[A]sking for charity or gifts, whether ‘on the street or door to door,’ is protected First Amendment speech.” Rodgers v. Bryant, 942 F.3d 451, 456 (8th Cir. 2019) (quoting Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632 (1980)). Protected speech may be regulated if the government “can establish a good enough reason and a fit between the claimed reason and the chosen means of regulation.” Id. “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve
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compelling state interests.” Reed, 576 U.S. at 163. “[A]lthough a duly enacted statute normally carries with it a presumption of constitutionality, when a regulation allegedly infringes on the exercise of first amendment rights, the statute’s proponent bears the burden of establishing the statute’s constitutionality.” Ass’n of Cmty. Orgs. for Reform Now v. City of Frontenac, 714 F.2d 813, 817 (8th Cir. 1983).
Section 804.050’s solicitor license requirement and section 804.165’s restriction on solicitation at certain major intersections are content-based restrictions on their face because they regulate speech based on “the topic discussed or the idea or message expressed.” Reed, 576 U.S. at 163. Whether a person needs a solicitor license or is restricted from speaking at Schedule I intersections depends wholly on the communicative content of their speech. See id. at 164. These restrictions apply only to those asking for “property or financial assistance” or selling or taking orders for certain items.2 They do not apply when people are, for example, advocating for a political cause, soliciting votes, or seeking petition signatures. The solicitor license requirements are content-based restrictions on speech. See id. at 163; Rodgers, 942 F.3d at 456; see also, e.g., Thayer v. City of Worcester, 144 F.Supp.3d 218, 233 (D. Mass. 2015) (explaining “a protracted discussion of this issue is not warranted as substantially all of the Courts which have addressed similar laws since Reed have found them to be content based”); Working Am., Inc. v. City of Bloomington, 142 F.Supp.3d 823, 831 (D. Minn. 2015) (concluding a solicitor license requirement was content-based under Reed).
2 Section 804.165’s limit on solicitation at Schedule I intersections also applies to solicitation campaigns by organizations.
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Content-based restrictions on speech “can stand only if they survive strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 576 U.S. at 171 (internal quotations omitted). “[W]hether or not a regulation is narrowly tailored is evidenced by factors of relatedness between the regulation and the stated governmental interest.” Republican Party of Minn. v. White, 416 F.3d 738, 751 (8th Cir. 2005) (en banc). “A narrowly tailored regulation is one that actually advances the state’s interest (is necessary), does not sweep too broadly (is not overinclusive), does not leave significant influences bearing on the interest unregulated (is not underinclusive), and could be replaced by no other regulation that could advance the interest as well with less infringement of speech (is the leastrestrictive alternative).” Id.
Defendant argues its solicitor license requirements serve its compelling interest in public safety, particularly traffic safety, because: solicitors begging at intersections have increased in the County; the County has received increased motorist complaints about solicitors, especially plaintiff, in recent years; plaintiff sometimes walks into the road to receive donations or has been seen walking down the side of the exit ramp and entering the second lane of traffic; vehicles have moved away as plaintiff walks toward them; two accidents involving solicitation have happened at Schedule I intersections; solicitors who enter traffic when it is moving can be struck by a vehicle or cause traffic to slow down or stop; and, solicitation causes driver distraction. Defendant claims that the restriction on solicitation at Schedule I intersections promotes traffic safety because it limits the number of solicitors at any given intersection on a given day, which reduces the risk of accidents.
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“[M]unicipalities traditionally have power to regulate” road safety, including to “prevent potential traffic obstructions before they actually cause an accident or other problem.” Stahl v. City of St. Louis, 687 F.3d 1038, 1040 (8th Cir. 2012). But even if defendant’s traffic safety interest is compelling, but see Neighborhood Enterprs., Inc. v. City of St. Louis, 644 F.3d 728, 738 (8th Cir. 2011), it still must show its content-based restrictions on speech are narrowly tailored to further that interest. See id. Plaintiff argues that the solicitor license requirements are not narrowly tailored because defendant has not shown the license requirement furthers its asserted interests and because the restrictions are underinclusive. The Court agrees.
First, defendant fails to show the solicitor license requirement in section 804.050 advances its interest in public safety, particularly traffic safety. “Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). To survive strict scrutiny, defendant must show “‘a direct causal link between the restriction imposed and the injury to be prevented.’” 281 Care Comm. v. Arneson, 766 F.3d 774, 787 (8th Cir. 2014) (quoting United States v. Alvarez, 567 U.S. 709, 725 (2012) (plurality)). Defendant does not explain the connection between requiring a person to get a license to ask for money in public and traffic safety. It appears to agree that requiring individuals to obtain a license before soliciting at other public locations away from busy intersections does not relate to traffic safety. See Def.’s Tr. Br. at 6 [Doc. #58] (arguing “[t]his is a situation where a hazard exists on roads, as compared to panhandlers soliciting on the sidewalks of a business district”). Defendant states its background check
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requirement serves public safety “by identifying who is soliciting and requiring solicitors to undergo a background check.” Id. at 12. It provides no explanation or support for this conclusion; its bare assertion that the two are connected is not sufficient to meet its burden. See Horina v. City of Granite City, 538 F.3d 624, 633-34 (7th Cir. 2008) (explaining that though a “panoply” of evidence is not needed, the government must “proffer something showing that the restriction actually serves a government interest”). Defendant does not explain the connection between the solicitor license requirement and its asserted interests.
Second, the restrictions are underinclusive because defendant has not given clear reasons for singling out solicitation from all other speech to promote traffic safety. “Where a regulation restricts a medium of speech in the name of a particular interest but leaves unfettered other modes of expression that implicate the same interest, the regulation’s underinclusiveness may ‘diminish the credibility of the government’s rationale for restricting speech in the first place.’” Johnson v. Minneapolis Park and Recreation Bd., 729 F.3d 1094, 1100 (8th Cir. 2013) (quoting City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994)). “While the Supreme Court has held that ‘a legislature may deal with one part of a problem without addressing all of it,’ that rule ‘has less force when a classification turns on the subject matter of expression.’” Rodgers, 942 F.3d at 457 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 215 (1975)). “Thus, a ‘regulation cannot discriminate on the basis of content unless there are clear reasons for the distinction.’” Id.; see also Traditionalist Am. Knights v. City of Desloge, 775 F.3d 969, 979 (8th Cir. 2014).
Defendant does not give clear reasons for its content-based regulations. It claims solicitation at intersections has recently increased, though it provides little detail and does
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not explain what this has to do with its decision to implement these restrictions decades ago. A solicitor who enters moving traffic could disrupt traffic or could be struck by a vehicle; but, so could any person who enters moving traffic for any reason. Soliciting money can cause driver distraction; but, so can many other forms of roadside expression, such as protesting, soliciting signature petitions, campaigning, or evangelizing. Cf. Rodgers, 942 F.3d at 457 (finding a charitable solicitation ban underinclusive where it did not ban other types of “equally dangerous” solicitation activity). That motorists choose to call and complain about beggars does not justify restricting the beggars’ speech. Cf. Stahl, 687 F.3d at 1041. On this record, defendant has not shown why solicitation is distinct from other modes of expression that implicate its traffic safety interest, meaning its contentbased restrictions are underinclusive.
Defendant briefly mentions severability. Under Missouri law, “[t]he provisions of every statute are severable.” See § 1.140 RSMo; see also Leavitt v. Jane L., 518 U.S. 137, 139 (1996) (per curiam). A court must “sever unconstitutional provisions of statutes and give effect to the remaining statutory text ‘unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one,’” or if the valid provisions cannot be executed consistent with legislative intent without the invalid provisions. Phelps-Roper v. Koster, 713 F.3d 942, 953 (8th Cir. 2013) (quoting § 1.140 RSMo); see also City of St. Peters v. Roeder, 466 S.W.3d 538, 547 (Mo. banc 2015).
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Section 804.165 is severable. Earlier versions of Chapter 804 did not include this section. See St. Louis County Ord. No. 6201 (1972), Pl.’s Ex. 2 [Doc. #56-2]. Severing this section does not make the rest of the chapter inoperable in regulating peddlers, sales of goods and services, or nonprofit solicitation—provisions plaintiff has not challenged. The inclusion of “soliciting property or financial assistance of any kind” in the definition of “solicitor” in section 804.030(4) is also severable, for the same reasons. The Court will sever and declare void: (1) the language “soliciting property or financial assistance of any kind” in section 804.030(4), and (2) all of section 804.165.
4. Section 1209.090.1 is unconstitutional under Reed v. Gilbert (Count II). Plaintiff also challenges St. Louis County Code section 1209.090.1, which prohibits
standing in the roadway for certain solicitation purposes, as a content-based restriction not narrowly tailored to further a compelling government interest. As this Court already detailed in its order denying defendant’s motion for judgment on the pleadings, section 1209.090.1 is content based on its face because its application depends on the message the speaker is conveying. See Fernandez v. St. Louis Cnty., 461 F.Supp.3d 894, 897-99 (E.D. Mo. 2020). The Court incorporates its prior analysis here. Defendant continues to dispute section 1209.090.1 is content based, arguing it applies “uniformly to any individual standing or walking on a roadway, regardless of the individual’s message or lack of message.” Def.’s Supp. Tr. Br. at 6 (Doc #68). The plain language of the section shows otherwise. The section applies only to people who stand in the roadway to solicit four specific things: a ride, employment, charitable contributions, or business. A person cannot
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stand in a roadway to solicit charity; they can stand in a roadway to solicit a signature or a compliment. Strict scrutiny applies. See Reed, 576 U.S. at 163.
Defendant again relies on its interest in traffic safety, arguing that keeping solicitors out of the roadway protects both pedestrians and drivers. Again, even if traffic safety is a compelling interest, the section is not narrowly tailored because its singling out of speech on just these four topics is underinclusive. See Reed, 576 U.S. at 171-72.
Defendant argues it singles out solicitation for a few reasons. First, it suggests solicitation is different from other speech in the extent to which it distracts drivers. It offers little support for this proposition and provides no basis to conclude that a person standing in a roadway asking for cash is more distracting than one standing in a roadway to, for example, solicit petition signatures, display a shocking photo, or ask for directions.
Second, defendant argues solicitation uniquely requires a response from motorists, as it requires willing drivers to “respond by searching for currency and passing it along to the solicitor” and then secure their belongings again before returning full attention to driving. See ACORN v. City of Phoenix, 798 F.2d 1260, 1269 (9th Cir. 1986) (overruled by Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011)). Even if this argument were persuasive, section 1209.090.1 does not just prohibit standing in the roadway to ask for cash; it also prohibits doing so to ask for a ride, employment, or business, none of which require searching for currency. This justification “raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring” unpopular speech, i.e., begging. See Johnson, 729 F.3d at 1100 (quotation marks omitted).
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Finally, defendant argues that soliciting funds is inherently intrusive and disruptive and presents risks of duress that make it appropriate to regulate. Defendant does not support these propositions; the cases it relies on are not relevant, as they involved factually different situations where the government acted as a proprietor in nonpublic fora and only had to show their restrictions were reasonable—an expressly different standard than what applies here in the regulation of speech in a public forum. See, e.g., Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).
Defendant’s decision to restrict only standing in the roadway to speak on these few topics “cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited.” Reed, 576 U.S. at 172 (quotation marks omitted). In Reed, the Court explained a “clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem ‘entirely reasonable’ will sometimes be ‘struck down because of their content-based nature.’” Id. at 171 (quoting Gilleo, 512 U.S. at 60). The Court does not doubt defendant can lawfully restrict pedestrians from standing in roadways in the interest of public safety. It just cannot do so in a content-based way without a “good enough reason and a fit between the claimed reason and the chosen means of regulation.” Rodgers, 942 F.3d at 456. Defendant has not met this burden. Section 1209.090.1 is unconstitutional.
Section 1209.090.1 is severable from the Traffic Code. The chapter contains many other sections regulating traffic that are not challenged and that can operate without section 1209.090.1. The Court will sever and declare void section 1209.090.1.
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5. Sections 716.080 and 716.090, prohibitions on vagrancy, are unconstitutional (Count III). Plaintiff also challenges County Code sections 716.080 and 716.090, which prohibit
vagrancy. These types of vagrancy laws are “plainly unconstitutional” violations of due process because they do not give fair notice of what is prohibited and because they lend themselves to arbitrary enforcement. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 168-71 (1972). Defendant does not argue otherwise. The parties agreed to a preliminary injunction enjoining enforcement of these sections. Defendant indicated it intends to repeal or replace these sections, but the record does not reflect whether this is done. Sections 716.080 and 716.090 are severable from Chapter 716. The Court will sever and declare void sections 716.080 and 716.090.
6. Plaintiff is entitled to permanent injunctive relief against enforcement of the unconstitutional ordinances. Plaintiff also seeks permanent injunctive relief barring enforcement of the
ordinances. Where, as here, the plaintiff succeeds on the merits, a court “then considers the following factors in deciding whether to grant a permanent injunction: (1) the threat of irreparable harm to the moving party; (2) the balance of harms with any injury an injunction might inflict on other parties; and (3) the public interest.” Oglala Sioux Tribe v. C & W Enters., Inc., 542 F.3d 224, 229 (8th Cir. 2008). After considering these factors, the Court concludes permanent injunctive relief is appropriate on all three ordinances.
First, plaintiff has shown irreparable harm. “[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
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Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Plaintiff has been cited and arrested for engaging in protected speech many times, including during the pendency of this suit. Without a permanent injunction barring enforcement of the ordinances, plaintiff’s constitutional rights and those of others in the County would continue to be infringed.
Second, the balance of harms supports a permanent injunction. Defendant has not argued it will suffer irreparable harm. As the protection of plaintiff’s constitutional rights outweighs defendant’s interest in regulating public safety through constitutionally infirm ordinances, the balance supports a permanent injunction.
Finally, a permanent injunction of all three ordinances is in the public interest. The public has a compelling interest in protecting First Amendment rights. See Make Liberty Win v. Ziegler, -- F.Supp.3d --, 2020 WL 6493429 at *7 (W.D. Mo. Nov. 4, 2020). The “‘public has no interest in enforcing an unconstitutional ordinance.’” Id. (quoting KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006)). Permanent injunctive relief is appropriate.
7. Plaintiff’s damages claims (Counts IV, V, and VI). Plaintiff also brings three damages claims, arguing his arrests under Chapter 804
violated his Fourth and First Amendment rights (Counts IV and V) and his prosecutions under the ordinances were malicious prosecution under Missouri state law (Count VI). Plaintiff requests a “floor” of $150,000 in damages for injuries he claims were caused by his arrests and prosecutions. Defendant argues that sovereign immunity applies and that plaintiff’s arrests were supported by probable cause.
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Plaintiff’s malicious prosecution claim is a Missouri tort claim that is barred by sovereign immunity unless plaintiff shows some statutory or common law exception that waives sovereign immunity. See Blakeney v. City of Pine Lawn, 2020 WL 4569175 at *3 (E.D. Mo. Aug. 7, 2020) (slip copy); Stockley v. Joyce, 2019 WL 630049 at *27 (E.D. Mo. Feb. 14, 2019) (unreported). “‘Sovereign immunity is not an affirmative defense but is part of the plaintiff’s prima facie case.’” Id. (quoting Newsome v. Kansas City, Mo. Sch. Dist., 520 S.W.3d 769, 776 (Mo. banc 2017)). Plaintiff has not pled or shown any exception that might waive sovereign immunity, which he must do. See Blakeney, 2020 WL 4569175 at *4; Hazlett v. City of Pine Lawn, 2013 WL 4482864 at *2 (E.D. Mo. Aug. 19, 2013) (unreported). The Court will enter judgment for defendant on Count VI.
Sovereign immunity does not apply to plaintiff’s damages claims under section 1983. See Smith v. Copeland, 892 F. Supp. 1218, 1225 (E.D. Mo. 1995). In Count IV, plaintiff alleges his arrests under Chapter 804 were unreasonable seizures that violated his Fourth Amendment rights. In Count V, he alleges his arrests constituted harassment for exercising his First Amendment rights and that such harassment caused him fear of future seizures for exercising his First Amendment rights.
“The essential elements of a § 1983 claim are (1) that the defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.” Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). The parties agree that defendant acted under color of state law at all relevant times. Defendant points out that in cases involving a policy or ordinance that violates federal law, “‘[t]o establish a constitutional violation, no evidence is needed other
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than a statement of the municipal policy and its exercise.’” Def.’s Tr. Br. at 19 [Doc. #58] (quoting Szabla, 486 F.3d at 390). County police officers repeatedly arrested and detained plaintiff for engaging in protected First Amendment speech, pursuant to an unconstitutional ordinance defendant implemented and enforced. Plaintiff can recover compensatory damages for injuries resulting from his arrests. Cf. Owen v. City of Independence, 445 U.S. 622, 650-57 (1980); Fields v. City of Omaha, 810 F.2d 830, 834 (8th Cir. 1987); Clary v. City of Cape Girardeau, 165 F.Supp.3d 808, 830 (E.D. Mo. 2016). “The basic purpose of § 1983 damages is to compensate persons for injuries that are caused by the deprivation of constitutional rights.” Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) (cleaned up). Compensatory damages may include such damages as out-of-pocket loss, monetary harm, harm to reputation, humiliation, mental anguish, and suffering. Id. at 307.
Plaintiff requests a “floor” of $150,000 in damages. Defendant does not contest this amount, only stating that “although the plaintiff was not able to solicit while detained, there is no evidence that the plaintiff was otherwise harmed.” Def.’s Tr. Br. at 19 [Doc. #58]. Defendant recognizes that plaintiff seeks damages for his loss of liberty caused by his arrests. The parties agree defendant arrested plaintiff four times and jailed him for about 28 ½ hours. Those arrests were for exercising his First Amendment rights, pursuant to an ordinance this Court has found unconstitutional. Plaintiff claims that handcuffing during one arrest dislocated his shoulder; while his hospital records do not support this claim, the parties stipulated that handcuffing during an arrest caused this injury, requiring hospital treatment. Plaintiff also claims the arrests and detentions caused him emotional distress, which the Court finds credible. Plaintiff proved his arrests and detentions harmed him.
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Cf., e.g., Lowry, 540 F.3d at 762. As defendant offers no other opposition to the amount of damages plaintiff requested, the Court finds the amount uncontested. Based on the evidence plaintiff presented, the parties’ stipulated facts, and defendant’s lack of opposition to the amount requested, the Court concludes an award of $150,000 fairly compensates plaintiff for injuries caused by his arrests, in violation of his First Amendment rights.
The Court agrees with defendant that plaintiff has not proved additional damages from any past “chill” on his protected speech. Plaintiff has not established “he was deterred from some specific, intended act of expression” or that he refrained from soliciting because of his arrests. See Abbott v. Pastides, 900 F.3d 160, 169-171 (4th Cir. 2018); see also Pl.’s Depo. at 72 [Doc. #59-4] (testifying that though police “scared [him] away” from his preferred spot, he continued going back regularly and would continue to do so); Pl.’s Aff. ¶ 26 [Doc. #56-37] (plaintiff explaining that though his Schedule I solicitation authorizations had long since expired, “I continue to solicit at my preferred location at I55 and S. Lindbergh Blvd. without authorization on an almost daily basis”).
Plaintiff also provides no authority supporting his claim that defendant violated his Fourth Amendment rights. And, as he presents the case, any damages under this theory would duplicate those awarded for violation of his First Amendment rights. As defendant points to case law at least arguably supporting the conclusion that plaintiff’s Fourth Amendment rights were not violated, see Michigan v. DeFillippo, 443 U.S. 31, 37-38 (1979), and plaintiff provides no support whatsoever for his theory, the Court will enter judgment for defendant on Count IV.
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8. Attorneys’ fees and costs. In a section 1983 case, the Court “may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). “[A] prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quotation marks omitted). A plaintiff is a prevailing party under § 1988 if he succeeds on any significant issue in the case. See Farrar v. Hobby, 506 U.S. 103, 109 (1992).
Courts consider a number of factors in determining a reasonable attorney’s fee, including: the time and labor required to litigate the case; the novelty and difficulty of the questions involved; the skill required to perform the services properly; customary fees; the results obtained; and awards in similar cases. See McDonald v. Armontrout, 860 F.2d 1456, 1459 and n.4 (8th Cir. 1988). “The proper method for determining a reasonable attorney’s fee is to multiply the number of hours reasonably expended on the litigation times a reasonable hourly rate. The resulting product [i.e., ‘lodestar’] is presumed to be the reasonable fee to which counsel is entitled.” Id. at 1458 (cleaned up).
Plaintiff proved all three ordinances he challenged are unconstitutional and received the injunctive and declaratory relief he sought and damages. Plaintiff achieved an excellent result and is clearly the prevailing party. The questions in this case were complex and challenging and required considerable time, labor, and skill to litigate. Plaintiff’s attorneys provided detailed support for their fee request, including invoices supporting the hours of work they claimed—107.4 hours for Mr. Schock and 161.6 hours for Mr. Eastwood—and
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affidavits supporting their requested hourly rates—$575 for Mr. Schock and $475 for Mr. Eastwood. They do not request any lodestar enhancement.
Defendant does not contest the reasonableness of plaintiff’s requested hourly rates or hours submitted, only stating the Court should award a lesser amount depending on plaintiff’s ultimate success. Given plaintiff’s overall success in the case, the Court will not reduce the award on that basis. See Hensley, 461 U.S. at 435. Because defendant does not contest the reasonableness of the fee request, and based on the support plaintiff provided and the Court’s experience and knowledge of prevailing rates in this market, the Court finds the requested hourly rates and hours claimed reasonable. See Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005); Hendrickson v. Branstad, 934 F.2d 158, 164 (8th Cir. 1991). The Court will grant plaintiff’s request for $138,515 in attorneys’ fees.
Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that judgment will be entered in plaintiff Robert Fernandez’s favor on Counts I, II, III, and V of plaintiff’s complaint [Doc. #1]. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that judgment will be entered in defendant St. Louis County’s favor on Counts IV and VI of plaintiff’s complaint [Doc. #1]. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the following provisions will be severed from the St. Louis County Peddlers and Solicitors Code, Chapter 804, and defendant is prohibited from enforcing them:
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(1) the prohibition on “soliciting property or financial assistance of any kind” without a license, as contained in sections 804.030(4)(c)(i) and 804.050; and
(2) section 804.165, Restriction of Solicitation at Designated Intersections. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that section 1209.090.1 will be severed from the St. Louis County Traffic Code, Chapter 1209, and defendant is prohibited from enforcing section 1209.090.1. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that sections 716.080 and 716.090 will be severed from the St. Louis County Petty Offenses Code, Chapter 716, and defendant is prohibited from enforcing sections 716.080 and 716.090. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff is entitled to damages from defendant in the amount of $150,000.00. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff is entitled to attorneys’ fees and costs from defendant under 42 U.S.C. § 1988 in the amount of $138,515.00. A separate judgment will issue. Dated this 11th day of May, 2021.
______________________________ STEPHEN N. LIMBAUGH, JR. SENIOR UNITED STATES DISTRICT JUDGE
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