Fourth Circuit Orders District Court to Award Attorney Fees in Free Speech Suit against North Carolina Sheriff

On July 11, 2014, the U.S. District Court for the Fourth Circuit reversed a lower court ruling that lawyers for an anti-abortion group who sued the local Sheriff's department for infringing on their right to protest were not entitled to attorney fees.

In November 2005, an anti-abortion group called Columbia Christians for Life (CCF) demonstrated on a public sidewalk at the busiest intersection in Greenwood, South Carolina. The group held large signs with graphic images of aborted fetuses. After receiving numerous complaints, Sheriff's deputies – citing a "disturbance in the traffic flow" — told CCF to take down the signs. CCF complained about their First Amendment rights, but ultimately packed up and left.

The next year, attorneys for National Legal Foundation sent a letter to Greenwood County Sheriff Dan Wideman on behalf of CCF, informing the Sheriff the group would be returning in the near future and that "any further interference with CCF's message by you or your officers" would result in legal action.

The Sheriff's office responded that it was merely enforcing roadway safety and public decency statutes and they would again respond "in exactly the same manner." CCF returned to Greenwood in 2006 and 2007 and the protests took place without incident.

In October 2008, CCF sued the Greenwood County Sheriff's office in federal court for the 2005 incident. The group sought a declaratory judgment, permanent injunction, and attorney fees. The court held that the Sheriff violated CCF's First Amendment rights and enjoined them from "engaging in content-based restrictions" on CCF's display of graphic signs.

However, the court held that CCF could not recover damages or attorney fees because the Sheriff's office was entitled to qualified immunity, as the unconstitutionality of their conduct had not been clearly established. The case then bounced around from court to court for the next six years.

On direct appeal, the Fourth Circuit affirmed the district court on all issues. CCF then sought, and was granted, certiorari by the United States Supreme Court, which rebuffed the Fourth Circuit's holding that CCF was not a "prevailing party," and thus not entitled to attorney fees. The Supreme Court remanded the case to the Fourth Circuit who, in turn sent it back to the district court with instructions to award attorney fees unless the court determined that "special circumstances" rendered such an award "unjust."

On remand the district court found three special circumstances precluded an award of attorney fees: (1) the defendant's qualified immunity; (2) the absence of an official policy or custom of discrimination against abortion protesters; and (3) the limited nature of the relief CCF won. CCF appealed again to the Fourth Circuit, this time with greater success. The appellate court ruled that none of the circumstances cited by the district court supported a non-award of attorney fees.

No court has ever held that qualified immunity constitutes a "special circumstance supporting the denial of Section 1988 attorney fees," the court said. The absence of an "official policy or custom of discrimination" only protects a governmental agency from liability for its employees' actions, but does not preclude attorney fees. And the Fourth Circuit deemed the district court's characterization of the relief CCF won as "limited" was simply not supported by the record.

"[CCF] successfully proved the elements required to secure the relief [they] sought – namely an injunction and a declaratory judgment," both of which resulted in "protecting First Amendment rights," the Court held. Thus, the district court "erred in holding that the 'limited nature of the relief granted' constituted a special circumstance making a fee award unjust."

The Fourth Circuit ordered the district court to allow CCF to make an attorney fee application to include "the time spent defending entitlement to attorney fees." See: Lefemine v. Wideman, 758 F.3d 551 (4th Cir. S.C. 2014).

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