Williamson v. City of Foley, Alabama et al
ORDER denying 31 Motion for Summary Judgment as further set out. Signed by Chief Judge William H. Steele on 7/26/2016. (mbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
) CIVIL ACTION 15-0430-WS-B
CITY OF FOLEY, ALABAMA, et al.,
This matter is before the Court on the plaintiff’s motion for summary
judgment. (Doc. 31). The parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 31-33, 40-41, 46), and the motion is
ripe for resolution. After careful consideration, the Court concludes the motion is
due to be denied.
According to the verified complaint, (Doc. 1), the plaintiff is a Baptist
pastor in Baldwin County who periodically leads members of his congregation in
evangelistic street ministry. Since 2006, he and parishioners have engaged in such
activity inside the corporate limits of the defendant City of Foley (“the City”),
specifically at the intersection of Highways 59 and 98. The group’s members
spread out on the public sidewalks at the four corners of the intersection and, for a
period of one hour, preach and witness both orally and with signs. Until 2014, this
occurred repeatedly and without incident.
In March 2014, the City adopted an ordinance (“the First Ordinance”),
which requires that persons wishing to engage in speech on public property obtain
a permit prior to doing so. The failure to comply with the First Ordinance is
punishable by fine and imprisonment. Defendant David Wilson, in his capacity as
Chief of Police, is charged by the First Ordinance with ruling on applications for
issuance of a permit.
The City has twice applied the First Ordinance to the plaintiff. On the first
occasion, the group disbanded rather than face arrest. On the second occasion, in
August 2014, the plaintiff was issued a citation for violating the First Ordinance.
Defendant Otis Miller is a police lieutenant who was involved in both incidents.
The plaintiff would like to continue his street preaching as before. But for
his fear of arrest and criminal citation, he would return to the City and engage in
these expressive activities.
The complaint alleges that the First Ordinance violates the plaintiff’s First
Amendment rights of free speech as well as the Due Process Clause. The plaintiff
asks the Court to declare the First Ordinance unconstitutional on its face and as
applied to his desired speech, enjoin its enforcement, and award nominal damages,
attorney’s fees, costs and expenses. (Doc. 1 at 22-23).
By previous order, the Court granted the plaintiff’s motion for preliminary
injunction. Although the plaintiff raised a number of grounds, the Court addressed
only one, ruling that the plaintiff had shown a substantial likelihood of success on
his claim that the First Ordinance unconstitutionally authorized Chief Wilson to
deny a permit based on the content of the proposed speech, in particular, the
reactions of third parties to such speech. (Doc. 24). The defendants have been
enjoined since November 2015 from applying the First Ordinance to impose a
permit requirement on the plaintiff or those with him as a condition of their
religious expression on the City’s public sidewalks. (Id. at 8).
On motion for summary judgment, the plaintiff seeks a declaration that the
First Ordinance is unconstitutional, on its face and as applied to the plaintiff; a
permanent injunction preventing the defendants from applying the First Ordinance
to the plaintiff; and nominal damages of $1.00 for the historical violation of his
constitutional rights. (Doc. 31 at 1-2).
Summary judgment should be granted only if “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 party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must support
its motion with credible evidence ... that would entitle it to a directed verdict if not
controverted at trial. [citation omitted] In other words, the moving party must
show that, on all the essential elements of its case on which it bears the burden of
proof, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.1 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.
The plaintiff brought suit under the First Ordinance. In March 2016, four
months after the Court enjoined enforcement of the permit requirement of the First
Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and
“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a
massive record ….” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d
1057, 1061 (11th Cir. 2011) (internal quotes omitted).
Ordinance (and almost one month after the plaintiff moved for summary
judgment), the City enacted a new ordinance (“the Second Ordinance”). (Doc. 411). The Second Ordinance “repealed” the First Ordinance, (id. at 6), and created a
new regime governing speech in the City’s “public rights of way.” (Id. at 3). The
defendants argue that the Second Ordinance “has removed the challenged features
of the original ordinance, rendering this case moot.” (Doc. 41 at 5).
“[A] case is moot when it no longer presents a live controversy with
respect to which the court can give meaningful relief.” Troiano v. Supervisor of
Elections, 382 F.3d 1276, 1282 (11th Cir. 2004) (internal quotes omitted). If a case
is or becomes moot, “dismissal is required because mootness is jurisdictional.” Id.
(internal quotes omitted). “Whether a case is moot is a question of law ….” Id.
Mootness may occur when the defendant voluntarily ceases the challenged
conduct. However, “[a] defendant claiming that its voluntary compliance moots a
case bears the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.” Doe v.
Wooten, 747 F.3d 1317, 1322 (11th Cir. 2014) (internal quotes omitted). The
defendants here are government actors, but “[t]he Supreme Court has applied this
same standard in cases involving government actors.” Id.
Unlike a private defendant, however, a government actor can raise a
“rebuttable presumption that the objectionable behavior will not recur.” Troiano,
382 F.3d at 1283 (emphasis in original).2 Thus, “a challenge to a government
policy that has been unambiguously terminated will be moot in the absence of
some reasonable basis to believe that the policy will be reinstated if the suit is
terminated.” Id. at 1285. To obtain the benefit of the rebuttable presumption, the
government defendant bears the “initial burden” to show that the offending policy
has been unambiguously terminated. Doe, 747 F.3d at 1323.
See also Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir.
2007) (confirming that “private citizens are not entitled to this legal presumption”).
“In general, the repeal of a challenged statute is one of those events that
makes it absolutely clear that the allegedly wrongful behavior … could not
reasonably be expected to recur.” Harrell v. Florida Bar, 608 F.3d 1241, 1265
(11th Cir. 2010) (internal quotes omitted). The “repea[l] or amend[ment] [of] a
challenged statute or policy [is] often a clear indicator of unambiguous
termination.” Doe, 747 F.3d at 1322. Here, the Second Ordinance on its face
repeals and replaces the First Ordinance.
Because the defendants have met their initial burden of showing that the
First Ordinance has been unambiguously terminated, the plaintiff’s challenge to
that ordinance is moot unless there is “some reasonable basis to believe that the
policy will be reinstated if the suit is terminated.” Troiano, 382 F.3d at 1285.
“Mere speculation that the [defendant] will return to its previous ways is no
substitute for concrete evidence of secret intentions.” National Advertising Co. v.
City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005). The plaintiff advances no
argument that there is reason to believe the City will reinstate the First Ordinance
if suit is terminated. Instead, he says, the Second Ordinance carries over most of
the asserted evils of the First.
“[W]hen an ordinance is repealed by the enactment of a superseding
statute, then the superseding statute or regulation moots a case only to the extent
that it removes challenged features of the prior law. To the extent that those
features remain in place, and changes in the law have not so fundamentally altered
the statutory framework as to render the original controversy a mere abstraction,
the case is not moot.” Coalition for the Abolition of Marijuana Prohibition v. City
of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000) (“CAMP”) (internal quotes
omitted). “The entire case becomes moot only where a superseding statute …
satisfies all the principles sought in an attack on the prior statute” and “the
amendment completely eliminate[s] the harm of which plaintiffs complained.”
Naturist Society, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992) (emphasis
in original, internal quotes omitted). The plaintiff, citing CAMP, argues the
controversy has not been rendered moot under this standard. (Doc. 46 at 7-9).
The defendants, invoking the same standard, take a contrary position. (Doc. 40 at
As the Court understands the complaint, the plaintiff challenges the First
Ordinance in the following respects: (1) the requirement of a permit to speak on a
public sidewalk; (2) the extension of this requirement to small groups and even to
individuals; (3) vagueness surrounding this extension; (4) the ten-day advance
notice required for a permit; (5) the fee required for obtaining a permit; (6) the
unbridled discretion vested in Chief Wilson to grant or deny a permit, including
based on the content of the proposed speech; and (7) the prohibition of speech at
the intersection of Highways 59 and 98. (Doc. 1 at 8, 18-20). On motion for
summary judgment, the plaintiff raises each of these challenges except the fifth.
(Doc. 32 at 16-25).
The defendants argue that the plaintiff’s first four challenges are moot
because a permit is no longer required in order to speak on most of the City’s
sidewalks. (Doc. 40 at 5-6). They further argue that the plaintiff’s final challenge
is moot because the Second Ordinance permits the plaintiff to speak without a
permit at the northeast corner of Highways 59 and 98 at any time and from the
other three corners between 5:00 p.m and 8:00 a.m. (Id. at 8-10).
Mootness does not arise when a governmental unit has tweaked language
but left in place the same basic impediments to speech, so that the new version
“disadvantage[s] the plaintiffs in the same fundamental way.” CAMP, 219 F.3d at
1310 (internal quotes omitted). Instead, to support mootness the changes must
have “so fundamentally altered the statutory framework as to render the original
controversy a mere abstraction.” Id. (internal quotes omitted). Thus, for example,
Atlanta’s new festival ordinance, which eliminated the government’s ability to
consider the number of potential counter-demonstrators when estimating event
attendance and extra police hours in establishing an event fee, “ma[d]e it more
difficult for the City to manipulate the fees based on the content of a festival’s
message and eliminate[d] a portion of the [plaintiffs’] arguments regarding the
constitutionality of the fees; however, they d[id] not satisfy all the [plaintiffs’]
challenges against this portion of the ordinance,” so that “the gravamen of the
[plaintiffs’] complaint remain[ed] unaffected.” Id. at 1315 n.11.
The Second Ordinance does not so fundamentally alter the First Ordinance
as to render the plaintiff’s challenges moot, because the Second Ordinance
continues to disadvantage him in the same fundamental way. The plaintiff’s street
ministry centers on the intersection of Highways 59 and 98, where his group
utilizes all four corners simultaneously in order to reach passing vehicular traffic
effectively. (Doc. 1 at 4-5, 8, 13; Doc. 31-1 at 2). The First Ordinance precluded
the plaintiff from speaking within fifty feet of that intersection, and this preclusion
applied to all four corners, 24/7. The Second Ordinance continues to preclude the
plaintiff from speaking within fifty feet of three corners from 8:00 a.m. to 5:00
p.m. every day. (Doc. 41-1 at 4, § 2.B). Partial preclusion is not as severe as total
preclusion, but by restricting the plaintiff’s access to this heavily traveled
crossroads, the Second Ordinance still disadvantages the plaintiff in the same
It is true that the plaintiff needs no permit to speak at any time from the
northeast corner of the intersection, and it is true that he needs no permit to speak
at any time more than fifty feet from the other three corners, or at these corners
between 5:00 p.m. and 8:00 a.m. But if the plaintiff desires to speak from these
three corners during business hours or daylight hours (especially in winter),3 he
must obtain a permit to do so. (Doc. 41-1 at 4, § 2.B; id. at 5, § 3). As with the
First Ordinance, this is true “regardless of the number of people participating.”
It is uncontroverted that he has and he does. (Doc. 31-1 at 5; Doc. 46-1 at 2, 5).
(Id. at 4, § 1.B).4 And as with the First Ordinance, a permit must be sought at least
ten days before the event. (Id. at 5, § 4).
The Second Ordinance expressly eliminates any fee requirement for
issuance of a permit. (Doc. 41-1 at 5, § 5). The Second Ordinance thus renders
moot the plaintiff’s fifth challenge.
As to the plaintiff’s sixth challenge, the Second Ordinance requires a permit
only when a street closure is sought, and Chief Wilson is required to
issue such a permit “if the intended Demonstration does not violate Section 7 of
this Ordinance.” (Id., § 6). Section 7 lists four reasons for denying a permit,
having to do with the frequency of a street closure, the timing of a street closure
(evacuations, emergencies, and proximity to certain holidays), and adjoining
landowners’ access to their properties. (Id. at 6, § 7). The plaintiff concedes that
the Second Ordinance does not invest Chief Wilson with unbridled discretion to
prohibit speech. (Doc. 46 at 7).
However, the plaintiff notes that Chief Wilson is required to deny a permit
if any owner or lessor who would lose vehicular access to his or her property in
the event of a street closure fails to consent. (Doc. 41-1 at 6, § 7.3). The plaintiff
complains that this provision gives third parties veto power over the issuance of a
permit, one they could exercise based on the content of the proposed speech.
(Doc. 46-1 at 3). To this extent, the Second Ordinance carries over the same basic
impediment to speech – authorization to deny a permit based on third parties’
reaction to the content of the proposed speech.
The defendants cite no authority supporting their position that the Second
Ordinance moots the entire controversy, relying instead only on their ipse dixit. In
light of the foregoing, the Court cannot accept their position. As to the plaintiff’s
first, second, fourth and seventh challenges, and as to the content-based
component of the sixth, the controversy is not moot. Nor is the case moot as to the
Because the requirement of a permit regardless of how few people are involved
is now explicit, the plaintiff’s vagueness challenge is moot.
plaintiff’s demand for nominal damages for historical violations of his rights. KH
Outdoor, L.L.C. v. Clay County, 482 F.3d 1299, 1303 (11th Cir. 2007); Granite
State Outdoor Advertising, Inc., v. City of Clearwater, 351 F.3d 1112, 1119 (11th
II. Constitutionality of Second Ordinance.
“[T]he Supreme Court has broadly discerned three distinct (although not
airtight) categories of government property for First Amendment purposes:
traditional public fora, designated public fora, and limited public fora.” Bloedorn
v. Grube, 631 F.3d 1218, 1230 (11th Cir. 2011). Identifying which is at issue is
important, because “the degree of scrutiny we place on a government’s restraint of
speech is largely governed by the kind of forum the government is attempting to
The Supreme Court has defined a “traditional public forum” as a place,
“such as a street or a park, which has immemorially been held in trust for the use
of the public and, time out of mind, has been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.”
Walker v. Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015)
(internal quotes omitted). The public sidewalks at issue here unquestionably are
traditional public fora. E.g., Schenck v. Pro-Choice Network, 519 U.S. 357 (1997)
(“[S]peech in public areas is at its most protected on public sidewalks, a
prototypical example of a traditional public forum.”).
For both traditional and designated public fora, “a time, place, and manner
restriction can be placed … only if it is content neutral, narrowly tailored to
achieve a significant government interest, and leaves open ample alternative
channels of communication.” Bloedorn, 631 F.3d at 1231 (internal quotes
omitted); accord Forsyth County v. Nationalist Movement, 505 U.S. 123, 130
(1992). The defendant concedes that this standard applies. (Doc. 21 at 9).
At issue are restrictions on speech at three corners of the intersection of
Highways 59 and 98 between the hours of 8:00 a.m. and 5:00 p.m. No speech
may occur at these locations during these hours on any day of the year unless the
speaker first obtains a permit. The only permit that may be issued is one closing
Highways 59 and 98 to vehicular traffic for the duration of the speech. It is
uncontroverted that vehicular traffic constitutes 80% of all traffic at this
intersection. (Doc. 46-1 at 3). Thus, the only way to gain permission to speak is
to forfeit four-fifths of the speaker’s audience – which, as the plaintiff notes, is his
“core” audience. (Id.). The plaintiff argues that this regime is not narrowly
tailored to achieve a significant government interest. (Doc. 46 at 9-12).
The defendants justify the Second Ordinance as follows:
The sidewalks at the northwest, southwest and southeast quadrants
of intersection of Highway 98 and Highway 59 are narrower than
the sidewalks along the northeast quadrant of the intersection. One
of the greatest safety concerns at that intersection is posed by large
trucks who have difficulty attempting to make turns at the intersection.
However, there is a park in the northeast quadrant of the intersection
of Highway 98 and Highway 59 with a larger amount of open space
than the other three (3) corners. Demonstrations on the sidewalk at
that corner of the intersection are allowed because any individuals
demonstrating there have a greater area or available amount of space
to try to move out of the way to avoid any injury or potential danger
posed by vehicular traffic making turns.
(Doc. 41-3 at 1-2).
The defendants’ asserted interest, then, is speaker safety. As the plaintiff
makes no contrary argument, the Court assumes that speaker safety constitutes a
“significant government interest” for purposes of constitutional analysis. See
McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (“We have … previously
recognized the legitimacy of the government’s interests in ensuring public safety
and order ….”) (internal quotes omitted); Gold Coast Publications, Inc. v.
Corrigan, 42 F.3d 1336, 1345 (11th Cir. 1994) (“The Supreme Court has
recognized aesthetics and safety as significant government interests legitimately
furthered through ordinances regulating First Amendment expression in various
contexts.”) (applying principle to placement of newsracks on public rights-of-
way). The Court therefore turns to whether the Second Ordinance is narrowly
tailored to serve the City’s asserted interest in speaker safety.
The plaintiff attacks the means the City has chosen with which to further its
legitimate interest as under-inclusive. (Doc. 46 at 9-12). The danger, according to
the defendants, is that eighteen-wheelers making turns will clip the corners and
potentially strike speakers standing there. The City’s response is under-inclusive,
says the plaintiff, because it does not preclude non-speakers from standing in the
exact same danger zone, and it does not preclude anyone, speakers or no, from
standing in the danger zone fifteen hours a day – including the hours of darkness,
when they are less likely to be seen by truckers.
According to the plaintiff’s own quotation, the significance of underinclusiveness is not that it exposes a failure to narrowly tailor the restriction but
that it “diminish[es] the credibility of the government’s rationale for restricting
speech in the first place.” City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994). The
Court, however, cannot make credibility determinations on motion for summary
judgment, and the plaintiff cannot obtain summary judgment by poking holes in
the bona fides of the defendants’ stated rationale; instead, the plaintiff must show
that, even assuming the City truly enacted the Second Ordinance to protect
speaker safety, the means it selected are not narrowly tailored as that term has
been defined for purposes of First Amendment analysis.5
The plaintiff proceeds under the misapprehension that the defendants have the
burden, in response to his motion for summary judgment, to “prov[e]” by “evidence” that
there is a danger to pedestrians, that the danger is greater for speakers than for nonspeakers, that the danger is not adequately addressed by signs warning truckers not to
attempt turns at the intersection, and that the Second Ordinance is narrowly tailored to
further the City’s safety interest. (Doc. 46 at 9-12, passim). The plaintiff is mistaken.
The only case on which he relies identified the burden at trial, not on motion for
summary judgment. This is the plaintiff’s motion for summary judgment, so the initial
burden is on him to demonstrate the absence of any genuine issue of material fact as to
the Second Ordinance; until he does that, the defendants have no burden at all. Because
the Second Ordinance was passed only after the plaintiff filed the instant motion, he
could not attempt this feat in his principal brief, but once the Second Ordinance
superseded the First and was made the subject of the defendants’ responsive brief, the
“[T]he requirement of narrow tailoring is satisfied so long as the …
regulation promotes a substantial government interest that would be achieved less
effectively absent the regulation.” Ward v. Rock Against Racism, 491 U.S. 781,
799 (1989) (internal quotes omitted). However, “[g]overnment may not regulate
expression in such a manner that a substantial portion of the burden on speech
does not serve to advance its goals.” Id. “So long as the means chosen are not
substantially broader than necessary to achieve the government’s interest,
however, the regulation will not be invalid simply because a court concludes that
the government’s interest could be adequately served by some less-speechrestrictive alternative.” Id. at 800; accord McCullen, 134 S. Ct. at 2535. While
the plaintiff uses the phrase, “narrowly tailored,” he does not employ the
governing analysis of that inquiry and so presents nothing for review.
The plaintiff does argue that “there is no justifiable reason for subjecting
expression by small groups and individuals to a ban or permit requirement in
traditional public fora.” (Doc. 46 at 9). But the plaintiff has failed to tie that
general statement to the Second Ordinance; in particular, he has not attempted to
show that, assuming the ordinance was passed to protect speaker safety, as a
matter of fact and/or law it cannot permissibly be applied to small groups of
speakers or to individual speakers.
Finally, the plaintiff complains that the ten-day advance notice requirement
is invalid because it “serve[s] to deter small group speech altogether.” (Doc. 46 at
10). Without passing on the accuracy of this statement, the Court notes that,
according to the plaintiff, the permit requirement itself “has the continued effect of
banning individual and small group speech in those locations, because even if the
plaintiff was obligated to start over with that ordinance. This might have required
additional discovery, supplemental briefing, or perhaps even a new motion for summary
judgment, but all were available – the defendants’ brief was filed on March 23, 2016, and
the discovery and motions deadlines did not arrive until June 10 and July 1, respectively.
(Doc. 26 at 1, 5). The plaintiff’s failure to employ these vehicles furnishes no grounds to
exempt him from the rules governing motions for summary judgment.
permit is obtained, the street is automatically closed, depriving the speaker of an
audience.” (Id. at 3). As the plaintiff puts it, the very act of obtaining a permit
“would defeat my purpose for being there in the first place.” (Doc. 46-1 at 3).
The Court declines to address at this juncture the validity of one aspect of the
permit system when the plaintiff insists that other circumstances render it pointless
for him to seek a permit in the first place.
III. Qualified Immunity.
Defendant Miller is sued in both his official and his individual capacity.
(Doc. 1 at 1, 2). In the defendants’ opposition brief, he seeks qualified immunity
“as to the claims brought against him in his individual capacity.” (Doc. 40 at 13).
To the extent the plaintiff seeks injunctive or declaratory relief against Miller, this
is not possible, since “qualified immunity is only a defense to personal liability for
monetary awards” and “may not be effectively asserted as a defense to a claim for
declaratory or injunctive relief.” Ratliff v. DeKalb County, 62 F.3d 338, 340 n.4
(11th Cir. 1995); D’Aguanno v. Gallagher, 50 F.3d 877, 879 (11th Cir. 1995).
Therefore, the defense can extend no further than the plaintiff’s claim for nominal
damages of $1.00. (Doc. 1 at 23; Doc. 32 at 26). Because the plaintiff does not
object to the unusual timing and format of Miller’s request for qualified immunity,
(Doc. 46 at 12-14), the Court addresses it.
“[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he
burden is first on the defendant to establish that the allegedly unconstitutional
conduct occurred while he was acting within the scope of his discretionary
authority.” Harbert International v. James, 157 F.3d 1271, 1281 (11th Cir. 1998).
The burden then shifts to the plaintiff to show that the defendant’s conduct
“violated a clearly established statutory or constitutional right.” Grayden v.
Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003).
The plaintiff concedes that Miller was acting within his discretionary
authority in enforcing the First Ordinance. (Doc. 46 at 12). The plaintiff argues
the First Ordinance was unconstitutional for authorizing Chief Wilson to consider
the potential reaction of third parties in deciding whether to approve a permit
request. (Doc. 46 at 13). The defendants assume for argument that the First
Ordinance was unconstitutional but say the plaintiff cannot meet his burden of
showing that the ordinance’s unconstitutionality was clearly established. (Doc. 40
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202
(2001). “In other words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle v. Howards, 132 S. Ct. 2093
(2012). “The salient question … is whether the state of the law at the time of an
incident provided fair warning to the defendants that their alleged conduct was
unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). To attain that
level, “the right allegedly violated must be established, not as a broad general
proposition, … but in a particularized sense so that the contours of the right are
clear to a reasonable official.” Reichle, 132 S. Ct. at 2094. The law is clearly
established if any of three situations exists.
“First, the words of the pertinent federal statute or constitutional provision
in some cases will be specific enough to establish clearly the law applicable to
particular conduct and circumstances to overcome qualified immunity, even in the
total absence of case law.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir.
2002) (emphasis omitted). The requisite fair and clear notice can be given without
case law only “[i]n some rare cases.” Williams v. Consolidated City of
Jacksonville, 341 F.3d 1261, 1270 (11th Cir. 2003).
“Second, ... some broad statements of principle in case law are not tied to
particularized facts and can clearly establish law applicable in the future to
different sets of detailed facts.” Vinyard, 311 F.3d at 1351. “For example, if some
authoritative judicial decision decides a case by determining that ‘X Conduct’ is
unconstitutional without tying that determination to a particularized set of facts,
the decision on ‘X Conduct’ can be read as having clearly established a
constitutional principle: put differently, the precise facts surrounding ‘X Conduct’
are immaterial to the violation.” Id. “[I]f a broad principle in case law is to
establish clearly the law applicable to a specific set of facts facing a government
official, it must do so with obvious clarity to the point that every objectively
reasonable government official facing the circumstances would know that the
official’s conduct did violate federal law when the official acted.” Id. (internal
quotes omitted). “[S]uch decisions are rare,” and “broad principles of law are
generally insufficient to clearly establish constitutional rights.” Corey Airport
Services, Inc. v. Decosta, 587 F.3d 1280, 1287 (11th Cir. 2009).
“Third, [when] the Supreme Court or we, or the pertinent state supreme
court has said that ‘Y Conduct’ is unconstitutional in ‘Z Circumstances,’” then if
“the circumstances facing a government official are not fairly distinguishable, that
is, are materially similar [to those involved in the opinion], the precedent can
clearly establish the applicable law.” Vinyard, 311 F.3d at 1351-52.
When case law is utilized to show that the law was clearly established, the
plaintiff must “point to law as interpreted by the Supreme Court [or] the Eleventh
Circuit,” and such case law must pre-date the challenged conduct. Mercado v.
City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). Moreover, “[t[he law
cannot be established by dicta[, which] is particularly unhelpful in qualified
immunity cases where we seek to identify clearly established law.” Santamorena
v. Georgia Military College, 147 F.3d 1337, 1342 n.13 (11th Cir. 1998) (internal
To meet his burden, the plaintiff relies on Forsyth County v. Nationalist
Movement, 505 U.S. 123 (1992). The First Ordinance states that the police chief
“shall issue a parade/demonstration permit when … he or she finds that … [t]he
conduct of the parade/demonstration is not reasonably likely to … provoke
disorderly conduct.” (Doc. 7-4, § 11-99(6)). The Court has previously determined
that, pursuant to this language, Chief Wilson “is free to deny a permit if he finds
such a likelihood [of provoking disorderly conduct], and he may find such a
likelihood based on the response of others to the proposed speech.” (Doc. 24 at 4).
That situation brings Forsyth County into play. As noted in Part II, a
restriction on speech in a traditional public forum (such as the public sidewalks
here) “can be placed … only if it is content neutral.” Bloedorn, 631 F.3d at 1231.
As Forsyth County holds, “[l]isteners’ reaction to speech is not a content-neutral
basis for regulation.” Id. at 134. In particular, the Forsyth County Court held that
an ordinance permitting a government official to vary the fee charged for a parade
or assembly permit based on the “estimated cost of maintaining public order” was
unconstitutional because [t]he fee assessed will depend on the administrator’s
measure of the amount of hostility likely to be created by the speech based on its
content.” Id. at 124, 134
On its face, the First Ordinance authorized Chief Wilson to deny a permit
based on listeners’ reaction to speech, specifically, on his assessment that the
proposed speech is reasonably likely to “provoke disorderly conduct.” This is
precisely the sort of scheme held unconstitutional in Forsyth County, and it does
not matter, for qualified immunity purposes, that the ordinance in that case
addressed “maintaining public order” while that in this case addressed
“provok[ing] disorderly conduct.” Both tie government approval to assessments
of how non-speakers will react to the speech – indeed, the First Ordinance does so
more directly than did the ordinance in Forsyth County. The Court agrees with the
plaintiff that Forsyth County gave fair warning that the First Ordinance was
Even though the Court discussed and relied upon Forsyth County in
granting the plaintiff a preliminary injunction against enforcement of the First
Ordinance on precisely the grounds related above, (Doc. 24 at 4-6), the defendants
ignore it. Instead, they suggest the Court should consider that Miller did not
devise the First Ordinance but “was merely enforcing the City’s ordinance
requiring a permit for demonstrations.” (Doc. 40 at 13). Their only support for
their proposal is Redd v. City of Enterprise, 140 F.3d 1378 (11th Cir. 1998), which
states only that, “[w]hen an officer has arguable probable cause to believe that a
person is committing a particular public offense, he is entitled to qualified
immunity from suit, even if the offender may be speaking at the time that he is
arrested.” Id. at 1384. As the plaintiff points out, however, the plaintiffs in Redd
“d[id] not attack the disorderly conduct statute as unconstitutional.” Id. at 1383.
Redd does not remotely support the proposition that the mere existence of
probable cause (or arguable probable cause) to arrest for a speech-related violation
cloaks an officer with qualified immunity for enforcing a blatantly
unconstitutional restriction on speech.
For the reasons set forth above, the plaintiff’s motion for summary
judgment is denied,7 and Miller’s request for summary judgment as to the claim
The plaintiff argues that the First Ordinance also was unconstitutional because it
was not narrowly tailored and because it failed to leave open ample alternative channels
of communication. (Doc. 46 at 14). Because the plaintiff cites no Eleventh Circuit or
Supreme Court cases clearly establishing that the First Ordinance was unconstitutional in
these respects, he cannot resist qualified immunity on these bases.
The defendants would be well advised not to take undue comfort from today’s
ruling, as the Second Ordinance appears problematic on multiple fronts.
for nominal damages brought against him in his individual capacity, construed as a
motion for such relief, is likewise denied.
DONE and ORDERED this 26th day of July, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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