A recent Law 360 story by Hayley Fowler, “Abortion Protesters Keep Atty Fees in 4th Circ. Picketing Row,” reports that the Fourth Circuit affirmed an attorney fee award for abortion protesters in a suit challenging the constitutionality of a North Carolina city's picketing ordinance, finding the sidewalk ministry had notched some semblance of a win in the parties' consent agreement. In a published opinion, a three-judge panel said the consent decree allows Cities4Life Inc. to hand out pamphlets at an abortion clinic where they were previously banned from doing so, meaning the legal relationship between them and the city of Charlotte altered in such a way that Cities4Life was a "prevailing party" under the agreement.
The Fourth Circuit's decision allows the ministry to keep its $39,811 in attorney fees awarded by the district court. "Contrary to the city's assertion at oral argument, this was no 'technical victory' — plaintiffs' previous inability to distribute literature to vehicles at the center was central to their claim," U.S. Circuit Judge Albert Diaz wrote. "Thus, we hold that the consent judgment here granted plaintiffs 'some relief on the merits' sufficient to establish this prerequisite for fee shifting."
Cities4Life had accused Charlotte police in 2019 of enforcing the city's picketing ordinance too liberally outside an abortion clinic that the Fourth Circuit said "performs the most abortions in the southeastern United States," where anti-abortion volunteers were allegedly inundated with citations.
One of the activities under scrutiny involved protesters stepping into the road to give literature to patients visiting the clinic. Police said it was a safety hazard that violated a city ordinance barring disrupting, blocking, obstructing or otherwise interfering with traffic. But Cities4Life had argued police were infringing on their volunteers' First Amendment rights. The parties reached a consent decree 17 days before the case was set to go to trial in 2020, the Fourth Circuit said.
Under the agreement, Cities4Life could approach cars with some caveats and would be issued an initial warning instead of an immediate citation if any of those conditions were violated. The parties did not, however, settle the issue of attorney fees, which was decided at a later date by the district court. Cities4Life had sought more than $150,000 in fees, which the judge ultimately slashed by 75% to land at the $39,000 figure.
On appeal, Charlotte argued the agreement had been a "practical resolution." Counsel for the city specifically said during oral arguments that the consent decree went "out of its way" to dismiss all the ministry's claims with prejudice, which he argued was a win for Charlotte — not the other way around. But the Fourth Circuit said dismissing the claims with prejudice is typical of parties wanting to "ward off future litigation" and is a "poor indicator" of which one prevailed.
The panel found the decree "easily passes" its four-part test for determining fee awards, saying the parties had reached a consent decree that grants Cities4Life some relief, materially alters their legal relationship and is enforceable by the court. In doing so, the Fourth Circuit dismantled the city's claim that an admission of liability is necessary to award attorney fees, which wasn't present in the consent decree, saying such an admission is not always necessary because judges have a "special degree" of oversight.