NARSOL’s Litigation Summit was a huge success and well received by over 220 viewers.

Thanks to the work of some extraordinary volunteers as well as the participation of our guests, NARSOL Live | Litigation Summit, NARSOL’s second major webcasting event, came off without a hitch. This was the first time NARSOL relied upon its in-house technology team to facilitate a virtual event from start to close. Much appreciation and gratitude are owed to Andy, Brendan, Craig, Fred, Michael, and Tammy for their assistance with technology and promotion.

NARSOL expresses gratitude for the outstanding presentations by a slate of attorneys throughout the nation: Mark Yurachek of Georgia, Erica Dubno of New York, Paul Reingold of Michigan, Adele Nicholas of Illinois, Aaron Marcus of Pennsylvania, as well as NARSOL’s general counsel and chief civil rights attorney, Paul Dubbeling of North Carolina.

The volunteer members of the Conference Operations Committee in cooperation with NARSOL’s Conference Planning Committee helped to plan and execute the live event which was emceed by our capable and gregarious host, Don Thurber, NARSOL’s state contact for South Carolina, along with appearances by NARSOL’s executive director, Brenda Jones,  the president of NARSOL’s foundation, Robin Vander Wall, and NARSOL board member Philip Kaso.

Thank you all! And thank everyone who signed-up to participate in NARSOL’s first litigation summit! Remember that you will have access to the program for 30 days in case you missed a session or want to see some again. You will be receiving information soon about accessing it. Judging from the initial responses of appreciation and adulation, it is very likely the first of many such webcasting events to come.

By Larry . . . On September 24, 2019, NARSOL engaged an attorney and filed a lawsuit a suit in the United States District Court for the Middle District of Georgia challenging the Butts County Sheriff’s Office’s practice of placing warning signs at the residences of registered persons before Halloween. The court granted a request for a preliminary injunction which prevented the Butts County Sheriff’s Office from erecting signs on the property of the plaintiffs during the 2019 Halloween holiday. With Halloween 2020 rapidly approaching, NARSOL’s legal team moved for Summary Judgment (decision without a trial) to permanently enjoin the sheriff’s office from placing signs in front of their homes, or, in the alternative, a new preliminary injunction barring sign placement during 2020 Halloween. Unfortunately, the court denied our motion for summary judgment and resolved the case against us, denying the relief we had sought. In addition, most of the assertions raised in the complaint were dismissed with prejudice meaning they cannot be raised again.

Background

One of the registrants lives with his 6-year-old daughter and his parents, who own the home where they all reside. Shortly before Halloween 2018, two Butts County sheriff’s deputies appeared at his door to inform him that the sheriff’s office would be placing a sign in front of  their home. The sign conveyed a “community safety message” from the sheriff’s office “warning” that there could be no trick-or-treating at the home. The other plaintiffs had similar stories.

As amended, their complaint asserted three claims:

• That the state compelled speech from the plaintiffs in violation of the First Amendment to the United States Constitution.
• That the state trespassed in violation of state law.
• That the state committed an unlawful taking of the plaintiffs’ property in violation of the Fifth Amendment.

Explanation of Summary Judgment

“Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing that no genuine issues of material fact exist. All facts and all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. The Court’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the factfinder. The Court does not weigh the evidence or determine the truth of the matter. Nor does the Court search the record ‘to establish that it is bereft of a genuine issue of material fact.’ Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479- 80 (6th Cir. 1989). Thus, ‘the inquiry performed is the threshold inquiry of determining whether there is a need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’ ” Anderson, 477 U.S. at 250.

The standards upon which a court evaluates motions for summary judgment do not change when, as here, both parties seek to resolve the case through the vehicle of cross-motions for summary judgment. “The fact that both parties have moved for summary judgment does not mean that the court must grant judgment as a matter of law for one side or the other; summary judgment in favor of either party is not proper if disputes remain as to material facts.” Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1999) (citations omitted). Instead, “. . . the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Id. For more details, see our article on Does v. Rausch in the August/September Digest.

What is Trespass?

The plaintiffs brought two claims alleging the signs intrude on their property rights.  It is undisputed that two of the plaintiffs did not own the property where each resided at the times the signs were placed. The defendants argue that as a result, neither of them had “standing to assert any claim that turns on a real property interest.” The defendants contended that a third party who is not a property owner cannot maintain a trespass action, and the Court agreed.   , 214 Ga. 149, 151, 103 S.E.2d 557 (1958) (“To maintain an action for trespass or injury to realty, it is essential that the plaintiff show either that he was the true owner or was in possession at the time of the trespass.”) The plaintiffs accused the defendants of “an inaccurate recitation of the law as addressed” and cited contrary ‘authority.’ That authority consisted of three cases.  The court stated, “None remotely supported their argument.” Order at 9.

Quoting from the Order the court stated, “Under Georgia law, “[t]respass is a wrongful interference with the right to the exclusive use and benefit of a property right.” Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894, 901, 613 S.E.2d 673, 682 (2005) (citing OCGA § 51-9-1). The plaintiffs argue, perplexingly, that “[t]he facts underlying Petitioners’ trespass claims are wholly undisputed by either party[.]” Doc. 50-1 at 29. Among those purportedly undisputed facts, they say, is that “Respondents were entering private property which was closed to the public[.]” Id. at 30.  But that critical issue is, in fact, hotly disputed: The defendants claim they placed the signs in the rights-of-way.  Doc. 51-1 ¶ 4. But as critical as that issue is, the parties have all been unable to find evidence establishing the location and extent of the rights-of-way, if any, on the plaintiffs’ properties.  Nor have they been able to find legal authority that resolves the relative rights of the general public, the abutting landowner, and the sheriff’s office in the rights-of-way. Order at 11-12.

The court stated, “There is no clearly established law that every temporary physical invasion of property constitutes a taking. Further, if even the parties’ counsel have not yet found law establishing the location of the rights-of-way and the relative rights of the parties in the rights-of-way, certainly a reasonable officer would not have known the placement of the signs interfered with the plaintiffs’ property interests. And again, the officers have adduced undisputed evidence that they at least attempted to place the signs in what they believed was the right-of-way. They are entitled to qualified immunity on the takings claim.” Order at 18-19.

Compelled Speech0

The First Amendment “forbids abridgement of the freedom of speech,” and “freedom of speech includes both the right to speak freely and the right to refrain from speaking at all.”  Now, the record is more developed, and there is evidence that the sheriff’s office does not now have a policy of prohibiting or the intention to prohibit competing speech. The plaintiffs dispute this, citing the sheriff’s testimony at the preliminary injunction hearing before last Halloween. They cite no further evidence showing such a policy or intention. On the issue of injunctive relief, the initial question, then, is whether the record provides evidence that the sheriff’s office intends to bar the plaintiffs from placing competing messages. It does not. Whatever the sheriff’s office planned to do in 2019, it is clear now it will not attempt to impinge the plaintiffs’ First Amendment rights. The plaintiffs are free to offer speech competing with the Sheriff’s Office’s views and to disassociate themselves from those views. Order at 21-22.0

Is There Hope?

Yes, because the court was not able to resolve all issues, particularly the issue of whether the signs were on public right-of-way or private property. Quoting from the order, “The Court first makes clear what it is not concluding. The Sheriff’s Office believes it has the right to post the signs in front of the Plaintiffs’ homes as long as the signs are in yet to be defined rights-of-way and that it can prosecute anyone who moves the signs.  The Court doesn’t reach that issue, but as noted, the Defendants have scant authority to support either proposition.  And the Court certainly doesn’t conclude, given the facts here, that putting the signs in the Plaintiffs’ yards makes sense. Rather, the Court only concludes that, for the most part, the relief the Plaintiffs seek is not available.” Order at 28.

A roundup of some of the most popular but completely untrue stories and visuals of the week. None of these are legit, even though they were shared widely on social media. The Associated Press checked them out. Here are the facts:

CLAIM: Law enforcement found 39 missing children in a double-wide trailer in Georgia.

THE FACTS: A law enforcement operation in August did locate 39 children in Georgia over a two week period, but the children were not all found in one trailer or in a single location. On August 27, the U.S, Marshals Service announced the completion of a two-week operation that located 39 children in Macon, Georgia, and the greater Atlanta area. During “Operation Not Forgotten,” the U.S. Marshals Service and other law enforcement agencies rescued 26 children and arrested nine people. Law enforcement also located an additional 13 children who had previously been reported missing, and confirmed the children were with the proper custodian. Posts on social media distorted some facts of the operation. “How is finding 39 missing children in a double wide trailer in Georgia NOT the biggest news story in America?” reads a post that has been widely shared and copied on Facebook. But the children were not all found in a double-wide trailer or even in a single location or on a single date, said Dave Oney, a spokesperson for the U.S. Marshals Service. “The children were found in a variety places — houses, hotel rooms,” Oney told the AP. Other children were located in apartments and “even on the streets,” according to Darby Kirby, chief inspector with the U.S. Marshals Service Missing Child Unit. Neither Oney or Darby were able to confirm if any of the children had been located in a trailer. Oney said some of the children had been missing for a few days while others had been missing for a couple of years. “Fifteen of the children were identified as victims of trafficking. The other children were victims of parental kidnappings, children who absconded from the Division of Family and Children Services, Department of Juvenile Justice custody, and were believed to be in danger or critically missing,” reads a statement Oney provided to the AP. While social media posts suggest the story about the children found in the trailer is not getting enough attention, that is because the claim about the trailer is false. Operation Not Forgotten was covered by many media outlets, including The Associated Press, CNN, CBS and others.

— Associated Press writer Jude Joffe-Block reported this item from Phoenix.

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CLAIM: California just passed SB 145, a bill that would end felonies for child rape and legalize pedophilia in the state.

THE FACTS: SB 145, which has passed the California legislature and awaits the governor’s signature, would not legalize pedophilia. It would only give judges expanded discretion to determine whether an adult must register as a sex offender. Under current law, judges can make that decision in cases of voluntary, but illegal, vaginal sex with a minor age 14 to 17 and an adult within 10 years of the minor’s age. SB 145 would expand that law to include voluntary oral and anal sex within the same age parameters. The bill would not apply to any minor under the age of 14, nor would it apply to any age gap larger than 10 years. It also would not apply if either party claims the sex was involuntary. Advocates say the bill makes existing California law more inclusive for the LGBTQ community. The bill has been widely condemned by social media users falsely claiming it would legalize pedophilia. “PEDOPHILIA is now LEGAL in CALIFORNIA,” read a Facebook post viewed more than 8 million times. “Now a 21 year old can have sex with an 11 year old, and not be listed on the sex registry as a sex offender. This is unbelievable California!” Posts making such claims fundamentally misrepresent what SB 145 does, according to the bill’s authors and outside experts. Jessica Levinson, a professor at Loyola Law School, called the claims “hogwash” in an interview with The Associated Press. “The accusation that it somehow allows pedophilia is simply not true,” Levinson said. Also, contrary to false posts on social media, the bill would not apply when a minor is under the age of 14, when the age gap is larger than 10 years, or when either party says the sex was not consensual. If passed, the bill would “bring much-needed parity” to California sex offender registration law, according to a statement from Los Angeles County District Attorney Jackie Lacey, who drafted the bill. “This bill allows judges and prosecutors to evaluate cases involving consensual sex acts between young people, regardless of their sexual orientation, on an individual basis,” the statement said. The bill did face opposition in the legislature by some lawmakers, including Democratic Assemblywoman Lorena Gonzalez, who said she thought the 10-year age gap was too broad. The bill has passed both houses of the California legislature and awaits a signature from Gov. Gavin Newsom.

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