Judge dismisses speech-religion suit against city


By Julian Eure
Managing Editor

Tuesday, October 8, 2019

A federal judge has ruled the city of Elizabeth City and two city police officers did not violate a local man’s right to free speech when he was arrested and charged with violating a city ordinance during the N.C. Potato Festival three years ago.

City Manager Rich Olson said Friday that U.S. Judge Earl W. Britt granted the city’s request for a directed verdict on Tuesday, Oct. 1, dismissing the eighth and final claim in Pasquotank County resident Joseph Lee Caraway’s May 2017 lawsuit against the city.

Britt had previously granted the city’s request for summary judgment on Caraway’s seven other claims, dismissing all seven, Olson said. But the judge had allowed one claim — that the city’s special events ordinance violated Caraway’s right to free speech — to go to trial.

However, after both Caraway’s and the city’s attorneys rested their respective cases during last week’s trial in Raleigh, Britt granted the city’s request for a directed verdict, essentially dismissing Caraway’s final claim, Olson said.

“Judge Britt determined that based on a recent Supreme Court decision issued earlier this year, Officers (Cathy) Hewitt and (Jamie) LaCombe had sovereign immunity, as they were acting in their official capacities, and had probable cause to arrest Joseph Caraway,” Olson said in his weekly memo to the mayor and city councilors last week.

Caraway had sued the city as well as LaCombe — now retired but at the time a captain in the police department — and police officer Hewett a year following his arrest at the May 20, 2016 Potato Festival. Caraway alleged in his 42-page complaint that he was peacefully sharing his Christian faith, exercising his constitutional rights to freedom of speech and exercise of religion, when the two officers arrested him near Poindexter and Main streets, charging him with trespassing.

He claimed Lacombe told him: “This venue is cordoned off for this event.” He claimed Hewitt told him: “You are banned from this event, you can stand outside this event, but you may not go back to this event.”

Although prosecutors later dismissed the criminal charge, Caraway said he filed the lawsuit because he has a “personal belief in the Biblical mandate to spread the Gospel of Jesus Christ” and feared he would be arrested again if city police continued to interpret and enforce the special events policy the way they had on May 20, 2016. Caraway claimed to have “concrete plans” to engage in constitutionally protected activities in public spaces, including Waterfront Park, from May 2017 to December 2021.

Olson said city police weren’t trying to limit Caraway’s free speech or exercise of religion when they arrested him. Their concern was Caraway’s compliance with a city ordinance prohibiting the use of amplification systems because it potentially could impede public safety, he said.

“He was amplifying his voice and we have an ordinance against amplification,” Olson said.

According to Olson, officers told Caraway seven times he had to turn off his amplification system as he addressed festival-goers. Caraway refused to do so each time, so he was arrested and cited, Olson said.

According to Olson, Caraway’s arrest during the 2016 Potato Festival wasn’t the first time he had been taken into custody for his street ministry.

“As part of our defense, we showed he has a YouTube site showing him being arrested multiple times in multiple jurisdictions,” Olson said.

The 2016 Potato Festival also wasn’t city police’s first encounter with Caraway. He also showed up at the 2015 Potato Festival and attempted to amplify his voice then, too, Olson said.

“He stopped the amplification in 2015 after being told to,” Olson said.

Caraway was told in 2015 that “he could preach all he wanted to” but that he needed to obtain a permit from the city to do so, Olson said. When he showed up the following year at the festival, however, Caraway claimed he didn’t know he had to have the permit, Olson said.

Olson believes Caraway has since attended the city’s Potato Festivals in 2017, 2018 as well as this year but not attempted to amplify his voice since 2016. Olson remembers Caraway also showing up for the city’s Christmas Parade in 2018, but not attempting to amplify his voice then either.

In his lawsuit, Caraway took aim at the city code governing Waterfront Park, claiming it’s unconstitutional because it allows City Council to suspend the park’s use as a “public wharf” during the Potato Festival and “any other such time as council may direct.”

Caraway said that language placed unconstitutional limits on his right to free speech and exercise of religion because it “attempts to convert Waterfront Park from a traditional public forum into a nonpublic forum.” The restriction ultimately “forced him to move out of a traditional public forum” to exercise his right to free speech and freely exercise his religion, he said.

Caraway claimed the code lacks “narrow tailoring” — a legal principle that a law be written to specifically fulfill only its intended goals — fails to achieve a legitimate government purpose and “fails to leave open alternative avenues for expression.”

Caraway’s lawsuit also made similar claims against the city’s special use policy, which he said unconstitutionally “attempts to convert the city’s streets and sidewalks from traditional public (forums)” into a nonpublic forum during special events, forcing him to move to exercise his free speech and religion rights.

Caraway also criticized the special events policy for giving city police what he described as too much discretion in its interpretation, enforcement and application. He said the policy, as enforced by police, “imposed a substantial burden on his sincerely religious beliefs” because it forced him to choose “between abandoning his religious beliefs in order to gain access to the city’s public spaces, and alternatively abiding by his religious beliefs only to be cited and fined.”

His lawsuit asked the court to declare unconstitutional both the city code giving council discretion to restrict Waterfront Park’s use, and the special events policy. His lawsuit also asked the court to impose damages on the city and the two officers as well as payment of his attorney fees.

Caraway was represented, according to a copy of his lawsuit, by Philip J. Clarke III, an attorney in Morehead City, and Frederick H. Nelson of the American Liberties Institute in Orlando, Florida. Clarke could not be reached for comment.

The N.C. League of Municipalities, which is the city’s insurance carrier, hired Dan Hartzog Jr. to represent the city and its police officers in the lawsuit.

Given Britt’s directed verdict, Olson said he has asked the city’s attorney to seek reimbursement of the city’s legal fees in the case. He declined to specify the dollar amount but said the fees are “sizable.”

“I believe it’s important that we send a message to those individuals who file frivolous lawsuits against the city,” he said.

While Caraway was the first street preacher to sue the city over its special events policy, he isn’t the first person to find the Potato Festival an attractive venue for spreading the Gospel. According to Olson, a man named Adam Gray started attending the festival in 2012, and he, too, preached a Christian message to festival crowds.

The city in fact worked with an attorney about what limits should be placed on Gray at the festival, Olson said. Gray wanted to elevate himself by using a six-foot ladder, wanted to amplify his voice and position himself in the middle of the fair midway, Olson said. For public safety reasons, the city didn’t agree to any of those requests, he said.

Gray also showed up at the 2013 and 2014 festivals before Caraway started attending in 2015 “and picked up the mantle” from him, Olson said.