The American Humanist Association, Inc. et al v. City of Ocala, Florida et al

Filing 88

ORDER on Parties' Motions for Summary Judgment ( 52 , 53 , 54 ); additional filings due 6/25/2018, 7/20/2018; see Order for details. Signed by Judge Timothy J. Corrigan on 5/24/2018. (SRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ART ROJAS, et al.,
Plaintiffs,
vs.

Case No. 5:14-cv-251-Oc-32PRL

CITY OF OCALA, et al.,
Defendants.
ORDER
If individuals or religious groups organize a prayer vigil and gather in the
Downtown Square in the City of Ocala to pray for an end to violent crime, the First
Amendment to the United States Constitution will protect the “free exercise” of their
religion. But what if the government organizes and sponsors the prayer vigil? That
is a problem because under the Establishment Clause of the First Amendment, the
government cannot conduct such religious activity. Yet that is what happened here.
While the Ocala Police Chief and his subordinates were no doubt well-intentioned and
sincere in sponsoring the Prayer Vigil, their actions violated the First Amendment.
I.

Introduction
When the City of Ocala experienced a violent crime-spree in the late summer

and early fall of 2014, its police department sought to curtail the violence using all
available means. As part of those efforts, Chief of Police Kenneth Gregory “Greg”
Graham met with members of Ocala’s faith-based community to seek their

assistance. What resulted was an invitation from Chief Graham to the community,
promoted on the Ocala Police Department facebook page and elsewhere,
encouraging everyone’s attendance at a “Community Prayer Vigil” on September 24,
2014 in the Downtown Square. The plaintiffs, who are atheists, contacted Chief
Graham and Ocala’s mayor, Reuben “Kent” Guinn, in advance of the Vigil, advising
them of their concern that the City’s promotion and sponsorship of a Prayer Vigil
would violate the United States Constitution’s Establishment Clause. The plaintiffs
were rebuffed, the Vigil took place, and this lawsuit followed.
Efforts to settle the case failed and the parties filed cross-motions for summary
judgment (Docs. 52, 53, 54) and responses thereto (Docs. 61, 62, 64, 68). The Court
held argument on the motions on May 26, 2017, the record of which is incorporated
by reference. The parties made further efforts to settle, but those too failed and the
Court now issues this decision.
II.

Undisputed Facts
In September 2014, the Ocala Police Department pursued various means to try

to apprehend those responsible for the recent shooting spree that left several children
injured. Graham Dec. I1 (Doc. 52-1) at ¶¶ 5-6. The police knew who the shooters
“As used herein, “Dec.” is a citation to a declaration (Graham prepared two
declarations, denoted here as “Dec. I” and “Dec. II”), “Depo.” is a citation to a
deposition, “Tr.” is a citation to a page in a deposition transcript (using the Page ID
from the CM/ECF header; some of the transcripts are missing pages so the court
reporter’s page number and the CM/ECF header page are not always aligned); “Aff.”
1

2

were, but could not persuade witnesses to come forward to testify. Graham Depo.
(Doc. 54-10) at Tr. 21. Their efforts included meeting with local leaders of the
NAACP, who suggested to Chief Graham that the police reach out to the local faithbased community for help in convincing witnesses to cooperate. Graham Dec. I (Doc.
52-1) at ¶ 7. Heeding that suggestion, Chief Graham held a meeting at the Ocala
Police Department on September 17, 2014, with Captain Richard Edwards, the
District Commander of the area where most of the trouble was occurring; Officer Mary
Williams, who assisted Captain Edwards with community events in the area; Captain
Carmen Sirolli, the Captain in charge of the division investigating the shootings; Major
Dennis Yonce, the Major to whom Sirolli reported; Hugh Brockington, an Ocala Police
Department Chaplain; Edwin Quintana, another Police Chaplain; and Narvella
Haynes, a community activist who lived in the area where the crimes occurred and
who had previously assisted the police with community outreach. Graham Depo.
(Doc. 54-10) at Tr. 19-21.
The purpose of the meeting was to develop ideas about how “to get the
ministers in that area to lean on, talk to, encourage witnesses to come forward” so the
police could hold the perpetrators accountable. Graham Depo. (Doc. 54-10) at Tr. 21.
Chaplain Edwin Quintana suggested that a prayer vigil or similar event on Ocala’s
public Downtown Square might bring the faith-based community together to get the
is a citation to an affidavit; “Inter. Resp.” is a citation to an Interrogatory Response.
3

word out and encourage people to cooperate. Graham Dec. I (Doc. 52-1) at ¶ 10;
Graham Depo. (Doc. 54-10) at Tr. 23. Chief Graham “thought it was a great idea” and
said “Let’s do it.” Graham Depo. (Doc. 54-10) at Tr. 23. Graham says he then left the
meeting and Quintana and Haynes began planning the Vigil, creating a letter for Chief
Graham’s and Haynes’ signatures that invited the community to participate in the
Vigil.2 Graham Dec. I (Doc. 52-1) at ¶ 10; Haynes Dec. (Doc. 52-2) at ¶¶ 7, 9;
Quintana Dec. (Doc. 52-3) at ¶¶ 5 & 6. Chief Graham read the letter and directed an
Ocala Police Department Sergeant to post it on the Ocala Police Department’s
facebook page, and Haynes and the Chaplains encouraged members of the
community to attend the Vigil. Graham Dec. I (Doc. 52-1) at ¶ 11; Graham Depo.
(Doc. 54-10) at Tr. 31, 58; Graham Inter. Resp. (Doc. 54-6) at # 1; Haynes Dec. (Doc.
On September 18 (the day after the meeting), Chief Graham sent an email to
Edwards and Quintana (but not Haynes) saying that due to feedback from ministers
that Wednesday was not the best night for the Vigil, “[w]e are going to have the vigil
on Thursday night instead of Wednesday.” Doc. 54-21 (marked Ex. 5) (9/18/2014
email from Graham to Edwards and Quintana). But by September 19, the Police
Department was preparing for the Vigil to occur on Wednesday, September 24. See
Doc. 54-24 (marked Ex. 8) (9/19/2014 email from Ocala Police Department employee
announcing the Prayer Vigil for September 24). Although Graham and Quintana
signed declarations stating that the Prayer Vigil occurred on September 25 (see
Graham Dec. I (Doc. 52-1) at ¶ 22; Quintana Dec. (Doc. 52-3) at ¶ 9), it appears they
were simply mistaken. Contemporaneous news stories, emails, and social media
postings in the record appear to confirm the Prayer Vigil took place on Wednesday,
September 24, 2014, as originally scheduled. See, e.g., Doc. 54-19 (marked Ex. 3)
at Page ID 1389 (9/24/2014 social media posting with photos of the Vigil); Doc. 54-72
(marked Ex. 56) at Page ID 1613, 1617 (9/24/2014 emails from reporters to the Ocala
Police Department referencing “tonight’s” prayer vigil); Doc. 54-73 at Page ID 1624
(9/24/2014 9:08 p.m. story on Ocala.com about that evening’s Prayer Vigil).
2

4

52-2) at ¶ 8, Quintana Dec. (Doc. 52-3) at ¶ 7. Chief Graham agreed that by posting
the letter on the Ocala Police Department facebook page, he was “promoting” the
Prayer Vigil. Graham Depo. (Doc. 54-10) at Tr. 50.
Printed on Ocala Police Department letterhead (with the image of the Ocala
Police Department badge and words OCALA POLICE DEPARTMENT displayed at
the top, and the Department address and phone number at the bottom), the text of the
letter read:
Blessings to all our citizens, specifically Pastors,
Community Leaders, Parents and our precious youth.
We are facing a crisis in the City of Ocala and Marion
County that requires fervent prayer and your presence to
show unity and help in this senseless crime spree that is
affecting our communities.
Within the last 30 days we have had numerous shootings
that have resulted in two children and an infant being hit by
bullets.
Stray bullets do not have respect for addresses, social
status, economic status, educational background, political
status and the list goes on. Buy my point is none of us are
exempt from stray bullets.
I am urging you all to please support a very important
“Community Prayer Vigil” that will be held this coming
Wednesday, September 24, 2014 at 6:30 pm to be held at
our Downtown Square located in the heart of the City.
Please support peace and this appeal for unity on this very
important “Community Prayer Vigil” coming this next
Wednesday. We need you.
5

The letter was signed with “Blessings and Highest Regards” by Greg Graham, as
Chief of Police, and Narvella Haynes. See Doc. 1, Ex. A. Here is an image of the
letter:

6

Ocala Police Department staff created a separate flyer about the Vigil which
depicts a photo of the gazebo covered stage in the Downtown Square with an image
of praying hands in one corner and the Ocala Police Department logo in the opposite
corner, and the words “Community Prayer Vigil Wednesday, September 24, 2014
6:30 p.m. Ocala/Marion County is in crisis! Help Stop The Violence! Join us
downtown on the square.” Doc. 54-22 (marked Ex. 6) at 7. The Police Chief’s letter
and an earlier version of the flyer (created before the Ocala Police Department logo
was added) were sent to Narvella Haynes by Officer Williams on September 19. Doc.
54-23 (marked Ex. 7).3 Chief Graham stated he was unaware of the existence of the
flyer. Graham Dec. II (Doc. 68-1) at ¶ 4.
Quintana invited several local clergymen to participate in the Vigil and sent an
email to the Ocala Police Chaplains (copying Graham) telling them that Chief Graham
asked Quintana to ask all the Chaplains to be present at the Vigil and to come
wearing their Police Chaplain uniforms. Quintana Dec. (Doc. 52-3) at ¶¶ 7, 8; Doc.
54-26 (marked Ex. 10) (9/22/2014 email to chaplains from Quintana, copying
Graham).4 The Ocala Police Chaplain uniform differs from the uniform of a sworn

Plaintiffs claim the flyer was distributed to the public by an Ocala police officer but
the exhibit they cite in support (Exhibit 6-C) is not in the record. See Doc. 54 at 5.
3

At his deposition, Chief Graham, who appeared on his own behalf and as the
City’s 30(b)(6) representative, testified that he did not recall directing Quintana to
have the Chaplains attend and to do so in uniform and thought it more likely that he
simply agreed to Quintana’s recommendation about that. Graham Depo. (Doc. 54-10)
4

7

officer– the Chaplains wear white shirts instead of blue, the sleeves bear patches that
say “CHAPLAIN” above the Ocala Police Department patch, and the Chaplains do not
carry weapons. Quintana Dec. (Doc. 52-3) at ¶ 9; Doc. 54-19 (marked Ex. 3) at Page
ID 1386, 1389, 1394, 1396, 1401, 1402 (photos of uniformed Ocala Police Officers
and uniformed Ocala Police Chaplains).
The Ocala Police Department supplies and pays for the Chaplains’ uniforms.
City Inter. Resp. (Doc. 54-5) at # 7. Chief Graham testified that when the Chaplains
are in their police uniforms, the public would perceive them as being connected with
the Ocala Police Department. Graham Depo. (Doc. 54-10) at Tr. 165-66. The
Chaplains have office space in the Ocala Police Department’s building. Id. at Tr. 169.
According to the Ocala Police Department Directive, “Ocala Police Department
Chaplains are official members of the Ocala Police Department[,]” who are “appointed
by the Chief of Police,” and are “considered members of the staff of the Chief of
Police in a support capacity and report directly to the Chief of Police.” Doc. 52-6
(marked Ex. 2) at 2. “They are issued Police Identifications in the form of an
identification card with holder and badge[,]” id., are issued cell phones, and are

at Tr. 13, 37-38. The City’s Interrogatory Responses say that the Ocala Police
Department did not ask the Ocala Police Chaplains to have any involvement in the
Vigil but they did so of their own initiative. City Inter. Resp. (Doc. 54-5) at # 8.
8

authorized to drive Department vehicles.5 Ocala Police Department Police Chaplain
Section Manual, 2010, and as reviewed 2015 (Doc. 54-74 (marked Ex. 58)) at 23-24,
36-37. Chief Graham has the authority to terminate the Ocala Police Chaplains.
Graham Depo. (Doc. 54-10) at Tr. 168. Although the Ocala Police Chaplains are
volunteers, they are covered by worker’s compensation when performing official
Department duties.

Doc. 52-6 (marked Ex. 2) at 2.

All of the Ocala Police

Department Chaplains are of the Christian faith. Graham Depo. (Doc. 54-10) at Tr.
157. Chief Graham agreed that although it would be inappropriate for Ocala Police
Chaplains to try to “convert” people in the course of their work for the Ocala Police
Department, “participating in a prayer vigil” would be part of the official function of an
Ocala Police Chaplain. Id. at Tr. 78-79.6

In his declaration, Chaplain Quintana states that Chaplains do not wear “police
badges,” Doc. 52-3 at ¶ 9, but the department directive and section manual both state
that Chaplains are issued badges. See Doc. 52-6 at 2, Doc. 54-74 at 23, 36. In
some of the photos from the Prayer Vigil, some of the Police Chaplains appear to be
wearing badges. See Doc. 54-19 (marked Ex. 3) at Page ID 1386, 1389, 1390, 1394,
1396. According to the City’s Interrogatory Responses, the Chaplains’ badges
identify the wearer as a Chaplain (as opposed to an officer), but that is not evident
from the photos. See City’s Inter. Resp. (Doc. 54-5) at # 7.
5

In a later declaration, Chief Graham seems to be rejecting a portion of this
deposition testimony, saying:
As I previously testified, I do not consider uniformed [Ocala
Police Department] chaplains proselytizing to the general
public to be part of their official departmental function. Nor
is it part of chaplains’ departmental function to lead general
community religious events or activities, such as the
Community Prayer Vigil at issue in this case, while in
6

9

Soon after the Vigil was advertised, several citizens, including some of the
plaintiffs, contacted Chief Graham and Mayor Guinn, expressing concern that a
prayer vigil organized by a police department would violate the U.S. Constitution.
See, e.g., Doc. 52-9 at 3-4 (9/20/2014 6:03 p.m. email); Doc. 54-51 (marked Ex. 35)
at 2 (9/22/2014 5:14 p.m. email). Initially, Chief Graham’s responses tended to take
ownership of the Vigil, saying, for example, “I have no intention of canceling the
event,” Doc. 54-40 (marked Ex. 24) at 4 (9/22/2014 4:05 p.m. email), and “[t]his ‘vigil’
is not the only strategy that we [the Police Department] are employing to fight crime
in Ocala” and explaining that the purpose of the Vigil was for the Police Department
to engage the faith-based community to help make the community safer. Doc. 52-9
at 3 (9/21/2014 2:43 p.m. email). As the Chief responded to one supporter who wrote
to him with the subject line “Stand tall on prayer!”:
Thanks for the encouraging words. I have been getting
quite a few responses from people, mostly from out of our
area, who oppose this. I have no intention on calling this
gathering off nor changing my personal belief on the power
of prayer. Take care and I hope to see you on Wednesday.
Doc. 54-55 (marked Ex. 39) (9/22/2014 3:55 p.m. email).

uniform.
Doc. Graham Dec. II (68-1) at ¶ 6. To the extent this second statement contradicts,
without explanation, Graham’s clear answers to unambiguous questions at his
deposition, the Court rejects it under the sham affidavit doctrine. See Van T. Junkins
and Assoc., Inc. v. U.S. Industs., Inc., 736 F.2d 656, 657 (11th Cir. 1984); Lane v.
Celotex Corp., 782 F.2d 1526, 1529-30 (11th Cir. 1986).
10

Soon thereafter, however, Chief Graham began to distance himself and his
Department from the Vigil, responding that the Vigil was a community event he could
not stop and over which he had no control. For example, on September 23, 2014, he
wrote to one citizen with whom he had been corresponding about the meaning of the
Establishment Clause, “I think you are misunderstanding my role in this event. I am
not leading the event, I am not speaking at the event, I will be in attendance at the
event.” Doc. 54-49 at 5 (marked Ex. 33-B) (9/23/2014 4:07 p.m. email). He further
wrote that he knew the minister who was organizing it and could put the citizen in
touch in case he wanted to attend “and say a few words.” Id. To another citizen, he
wrote:
I am not sure if I have been clear in any of my prior emails
to you that this event tonight is a “Community Prayer Vigil”
not an Ocala Police Department or City of Ocala Prayer
Vigil and as such I have no say in whether it gets canceled
or not. I have indicated to several others that I have no
intent on canceling the event and should have expanded
my thoughts. If I were to try and cancel this event I would
be violating the Constitution by preventing people from
gathering and exercising their right to free speech.
Doc. 54-40 at 6 (marked Ex. 24-C) (9/24/2014 2:48 p.m. email from Graham). See
also Doc. 54-50 (marked Ex. 34) (9/24/2014 1:27 p.m. email from Graham) (“I am not
attacking your rights as an American to freedom of religion, I am upholding others[’]
rights to express themselves . . . this is not a City of Ocala or Ocala Police
Department Prayer Vigil, it is a Community Prayer Vigil and as such I have no say in
11

canceling the event”).
Although there is no evidence that Kent Guinn, Ocala’s Mayor, had anything to
do with the planning of the Prayer Vigil, once he learned about it,7 he readily
embraced it as a government-sponsored event, responding to a citizen’s complaint
about what the citizen perceived to be the Police Chief’s endorsement of religion: “I
think this is great. I’ll be sure to praise him [Chief Graham] for it.” (Doc. 54-49
(marked Ex. 33) at 3 (9/19/2014 10:55 p.m. email from Guinn to citizen, copying
Graham)). Mayor Guinn wrote to Chief Graham about the Prayer Vigil two days later,
stating: “As I told you I think this is a great idea and have been responding to the
atheist groups that are writing me about it. I put it on my calendar to be there,” but
telling Graham that next time he does “things like that” to let the Mayor know so he
doesn’t find out from his “church and random emails.” Doc. 54-25 (marked Ex. 9) at
2 (9/21/2014 12:33 p.m. email from Guinn to Graham). The next day, Mayor Guinn
wrote to a protesting citizen who had urged the Mayor to show leadership in
addressing the Chief’s violation of the First Amendment, saying,
I’m proud to stand by my Chief and support him. Times like
this do test leadership and that’s why we’re leading the
community in this prayer vigil. Yes, we have heard from
folks like you who don’t understand the constitution. We
are doing absolutely nothing wrong.
Mayor Guinn could not recall how he first heard about the Prayer Vigil, but he
thought he saw something about it at his church. Guinn Depo. (Doc. 54-11) at Tr. 7172.
7

12

Doc. 54-51 (marked Ex. 35) (9/22/2014 6:43 p.m. email from Guinn to citizen, copying
Graham). In responding to another citizen’s concern about the upcoming Prayer Vigil,
Mayor Guinn responded:
Thanks for your interest in our community. There is nothing
in the constitution to prohibit us from having this vigil. Not
only are we not canceling it we are trying to promote it and
have as many people as possible to [sic] join us. We open
every council meeting with a prayer. And we end the
prayer
in Jesus name we pray. Our city seal says “God be with
us” and we pray that he is and us with him.
Doc. 54-44 at 2 (marked Ex. 28-A) (9/22/2014 10:24 a.m. email from Guinn to citizen,
copying Graham and a pastor and employee of Guinn’s church (see Guinn Inter.
Resp. (Doc. 54-7) at # 19)).8
Even after the Vigil, the Mayor continued to applaud the effort, appearing in media
outlets to discuss this lawsuit and the recent Vigil. See Doc. 61-1 (marked Ex. 64)
(Fox News Insider article, “It’s Happening to Me in My Community”: Atheists Sue
Mayor Over Prayer Vigil, Nov. 29, 2014).
And at his June 2016 deposition the Mayor maintained his position, as reflected
in the following questions:
Q:
Can the police chief state, on [Ocala Police Department] letterhead, that
people should believe in God?
A:
Yes.
Guinn Depo. (Doc. 54-11) at Tr. 88.
Q:
[A]s far as you’re concerned, if the police chief wants to put out
something on letterhead saying that you should believe in God or that
you should believe in Jesus, that’s fine?
A:
He can do that.
Id. at Tr. 90.
Q:
So as far as you’re concerned, they [the Ocala Police Department] could
have another vigil such as that one next week if they wanted to?
A:
Sure.
8

13

The upcoming Prayer Vigil became a matter of public debate in Ocala, with the
citizenry vocalizing opinions both for and against it on social media, in
communications to Chief Graham and Mayor Guinn, and in local news outlets. For
example, one person wrote on the Ocala Police Department’s facebook page: “why
are the police asking us to pray? will they arrest us if we don’t pray?” Doc. 54-18
(marked Ex. 2) at CM/ECF Page 4. Plaintiffs contacted counsel for The American
Humanist Association (now representing plaintiffs here) who urged Chief Graham to
remove the Prayer Vigil letter from the Ocala Police Department facebook page on
the grounds that it was an unconstitutional government endorsement of religion. Doc.
54-46 at 2 (marked Ex. 30-A) (9/21/2014 10:47 a.m. email from David Niose to
Graham). Chief Graham responded that his efforts were upholding the rights of
others to assemble and that taxpayer funds were used only to the minimal extent that
Graham wrote the letter and printed it on Department letterhead. Doc. 54-46 at 3
(marked Ex. 30-B) (9/21/2014 10:57 a.m. email from Graham to Niose).
Chief Graham testified he would have removed the facebook posting if the
Mayor had directed him to do so. Graham Depo. (Doc. 54-10) at Tr. 161. Likewise,
Mayor Guinn testified that he had the authority to order Graham to remove the

Q:

And the chief could post another letter saying that there is something
that requires fervent prayer in the city?
A:
Yes.
Id. at Tr. 134.
14

facebook posting. Guinn Depo. (Doc. 54-1) at Tr. 54-55. Guinn also said he had the
authority to instruct that Ocala Police Department Chaplains not lead prayers at the
Prayer Vigil or attend in Ocala Police Department Chaplain uniforms, but he did not
consider doing any of that because he believed those actions were permitted under
the Establishment Clause. Id. Under the charter for the City of Ocala, the Mayor is
the sole municipal official in authority over the Ocala Police Department and he
recommends a chief of police nominee to the City Council, who appoints the Chief.
Guinn Aff. (Doc. 53-1) at ¶ 3.
The day before the Prayer Vigil, the weather forecast apparently called for
possible rain. Captain Edwards sent an email to Chief Graham, Ocala Police
Chaplain Quintana and Ms. Haynes, copying an Ocala Police Department officer,
asking whether they should secure an indoor location as an alternative. Doc. 54-28
(marked Ex. 12) at 2. Quintana’s suggestion was that the Vigil should take place on
the Square with or without rain, “[n]othing should stop, hinder or prevent from [sic]
fervent prayer,” proposing they “[k]eep it to 15-20 minutes of PRAYER only.” Id. at
3 (capitalization in original). Captain Edwards sent an email to an Ocala Police
Department Major on September 23, saying he would be “mentioning” the Prayer Vigil
at an upcoming staff meeting, Doc. 54-29 (marked Ex. 13), and the following day he
emailed an Ocala Police Department Captain to say he might not make it to a meeting
because he was “working on getting this prayer vigil set up.” Doc. 54-30 (marked Ex.
15

14).
The Prayer Vigil took place on September 24, 2014 in the Downtown Square
in Ocala, a public space where meetings, rallies, assemblies and other public and
privately-sponsored events occur. Graham Dec. I (Doc. 52-1) at ¶ 22; see supra note
2. Chief Graham and Mayor Guinn both attended the Prayer Vigil, but neither of them
addressed the crowd. Graham Inter. Resp. (Doc. 54-6) at # 1; Guinn Inter. Resp.
(Doc. 54-7) at # 15. Approximately ten people were on the stage during the Prayer
Vigil, including four uniformed Ocala Police Chaplains, one off-duty Ocala Police
Department employee who was not in uniform, and five faith and/or community
leaders. Graham Inter. Resp. (Doc. 54-6) at # 3. Not all of those persons spoke from
the stage, but a number who did speak were Ocala Police Department Chaplains.
Doc. 54-16; Doc. 54-19 (marked Ex. 3) at Page ID 1386, 1389, 1390. Chief Graham
said he did not know in advance what any of the speakers planned to say, but his
recollection is that those who did speak either prayed or sang. Graham Dec. I (Doc.
52-1) at ¶ 16; Graham Dec. II (Doc. 68-1) at ¶ 5; Graham Depo. (Doc. 54-10) at Tr.
139-40. He did not hear any non-Christians speak at the Prayer Vigil and the crowd
appeared to be predominately Christian. Graham Depo. (Doc. 54-10) at Tr. 96-99,
144-45. Mayor Guinn knew most of the Ocala Police Department Chaplains by name,
but said he had no recollection as to who spoke. Guinn Depo. (Doc. 54-11) at Tr. 2728.
16

Mayor Guinn estimated that 500-600 people attended the Prayer Vigil. Id. at
Tr. 108. Chief Graham, who said the Vigil lasted for about an hour, also said “[t]here
were a lot of people there,” “definitely more than 100.” Graham Depo. (Doc. 54-10)
at Tr. 139, 149.9 Chief Graham spent his time “engaging people in the crowd, talking
to them” and “attempt[ing] to enlist their help with the crime spree.” Id. at Tr. 140;
Graham Dec. I (Doc. 52-1) at ¶ 21. In addition to Chief Graham, other uniformed
police officers attended the Prayer Vigil to engage with the crowd and provide
security, consistent with the Department’s regular practice of having officers present
at public downtown gatherings. Graham Dec. I (Doc. 52-1) at ¶ 26. The record
includes photographs taken at the Prayer Vigil, as well as transcripts from video and
audio recordings taken by one of the plaintiffs. See Doc. 54-19 (marked Ex. 3); Doc.
54-16. Plaintiffs note that in at least one photograph, a uniformed officer appears to
be participating in prayer while sitting on the edge of the stage. See Doc. 54-19 at
Page ID 1392.

While the recorded statements in evidence were not the only

speeches given at the Prayer Vigil, there is no dispute that these speeches were
religious.10

Plaintiffs suggest that if this was not a city-sponsored event, the organizer would
have been required to seek a permit (which was not issued here), but the record is
murky as to the permit requirements. See Graham Depo. (Doc. 54-10) at Tr. 70-74.
9

For example, one of the transcripts includes these remarks delivered by a
uniformed Ocala Police Department Chaplain: “Father we thank you for tonight, for
the gathering of your children . . . Lord you called us together by your spirit, your spirit
10

17

Plaintiffs Lucinda and Daniel Hale, who live in Marion County, had visited the
Downtown Square on a number of previous occasions, such as to visit the farmer’s
market. L. Hale Depo. (Doc. 54-15) at Tr. 31. The Hales heard about the upcoming
Prayer Vigil when someone told them about the Ocala Police Department facebook
posting, which they then viewed. D. Hale Depo. (Doc. 54-14) at Tr. 7; L. Hale Depo.
(Doc. 54-15 at Tr. 9). The facebook posting discussed the crisis of crime affecting
citizens of Ocala and Marion County, and Ms. Hale agreed that crime creates a
negative environment for all citizens, but she felt that the message inviting everyone
to a Prayer Vigil did not include her or others who do not pray. L. Hale Depo. (Doc.
54-15) at Tr. 17-19. Mr. Hale engaged in email correspondence with the Mayor in
advance of the Vigil, expressing regret for the recent crime spree and applauding the
Chief for his attempts to curb crime, but explaining that the Vigil invitation violated the
Establishment Clause and suggesting that the City promote a different rally
of love, and tonight Lord that love can conquer anything– it can conquer evil, it can
conquer enemies . . . Your angels are on assignment [from] the kingdom of god. And
your kingdom has come. And your kingdom is ruling even now. Behind the scenes
amen there are children amen don’t feel safe in their communities any more. Where
bullying amen is on every corner amen. Where people amen are being threatened
amen hallelujah from all kinds of things and all kinds of dangers. Lord we are not
afraid, we are not afraid . . .” Doc. 54-16 at Ex. A.
Another uniformed Ocala Police Department Chaplain included these statements
in his remarks (which were interspersed with responses of “Amen” from the crowd):
“God healed America. . . . But in order for god to heal America, there must be an
intrinsic change from the inside, with each and every one of us, where we go out and
watch other people, and help the children that are lost. . . . God bless America, god
heal America.” Doc. 54-16 at Ex. B.
18

encouraging people to come forward with ideas about how to stop crime. D. Hale
Dep. (Doc. 54-14) at Tr. 17-18; 53.
The Hales attended the Prayer Vigil and described it as similar to a Christian
tent revival. D. Hale Depo. (Doc. 54-14) at Tr. 29, 47-48; L. Hale Depo. (Doc. 54-15)
at Tr. 22-23. Ms. Hale stated she is concerned about alleviating crime, which was the
purported purpose of the Prayer Vigil, but she felt unable to participate in any part of
what actually transpired. L. Hale Inter. Resp. (Doc. 54-3) at # 8. Mr. Hale did not
observe any speaker encourage people to come forward with ideas about how to stop
crime. D. Hale Depo. (Doc. 54-14) at Tr. 53. Mr. Hale recalled that at least one
speaker was introduced from the stage as an Ocala Police Department Chaplain. Id.
at Tr. 43-44. He said he observed uniformed police officers participating in the Prayer
Vigil by being part of a circle of people praying, bowing heads, and holding hands.
Id. at 29-30. Mr. Hale spoke with Chief Graham at the Vigil, and they discussed the
possibility of Hale doing some volunteer work with the Ocala Police Department in the
future. Id. at Tr. 35, 54. Mr. Hale feels that it is everyone’s responsibility to better the
community. Id. at Tr. 54.
Plaintiff Art Rojas, who lives and works in Ocala, attended the Prayer Vigil,
which he described as being “essentially a Christian revival” that was “not a
comfortable place for non-believers” and caused anyone present to feel “some
pressure to participate and show approval,” lest they be seen as “publicly opposing
19

the police.” Rojas Inter. Resp. (Doc. 54-1) at # 14, 15. Rojas said he attended the
Vigil to see if there was going to be a violation of the Establishment Clause. Rojas
Depo. (Doc. 54-12) at Tr. 31. Rojas wishes for his community to be more inclusive,
and hopes that future events involving his government will include all of Ocala’s
citizens, not only Christians. Rojas Depo. (Doc. 54-12) at Tr. 37. Rojas thought that
the Police Department should represent everyone, but by involving itself in the Prayer
Vigil it did not represent him. Id. at Tr. 25-26.
Frances Jean Porgal attended the Vigil and, like Mr. Hale, recalled that at least
one speaker was introduced from the stage as an Ocala Police Department
Chaplain.11 Porgal Depo. (Doc. 54-13) at Tr. 32. Porgal observed that “police
representatives spent no time discussing the crimes that had recently occurred,” or
“requesting assistance” from the community, or urging people to come forward with
information; instead, speakers prayed, preached, and sang. Porgal Inter. Resp. (Doc.
54-2) at # 8.
The day after the Prayer Vigil, congratulatory emails circulated within the Ocala
Police Department, thanking the Chief, Captains, Officers, Chaplains, and Ms.
Haynes for their efforts regarding the Prayer Vigil. See Doc. 54-32 (marked Ex. 16).
Ms. Porgal, who was a resident of Marion County, was a plaintiff in this case until
she passed away in January 2017. See Doc. 69. She was subsequently terminated
as a party. See Doc. 72. Though no longer a plaintiff, Ms. Porgal’s uncontested
sworn observations recounted here are relevant evidence about material facts in this
case which the Court may consider as part of the summary judgment record.
11

20

Captain Edwards sent an email to Ms. Haynes, Chaplain Quintana, copying Chief
Graham and Officer Williams, thanking everyone for helping and “allow[ing] the
PRAYER VIGIL to take place[,]” remarking that “[t]here was opposition but Isaiah
54:17 says ‘No weapon that is formed against thee shall prosper; and every tongue
that shall rise against thee in judgment thou shalt condemn.’” Id. at 2 (capitalization
in original; additional emphasis omitted). Edwards suggested a meeting to discuss
the next steps including another possible vigil, and closed with, “‘Romans 8:28 ‘And
we know that all things work together for good to them that love God, to them who are
the called according to his purpose.’” Id. at 2 (emphasis omitted). Chaplain Quintana
replied to Captain Edwards, saying “God bless you Captain for organizing” the Prayer
Vigil, and saying he (Chaplain Quintana) was honored that Captain Edwards invited
him. Id. at 4.
Sometime thereafter, Chief Graham told Ms. Porgal about an anti-bullying rally
scheduled for the Downtown Square where the Prayer Vigil had occurred. Ms. Porgal
and the Hales attended and participated by carrying signs discouraging bullying in
schools. D. Hale Depo. (Doc. 54-14) at Tr. 55; L. Hale Depo. (Doc. 54-15) at Tr. 3132. Chief Graham testified that going forward, he would not permit the Chaplains to
participate in public events while wearing their Ocala Police Department uniforms if
the event involved leading prayers, not because it was necessarily inappropriate, but
to keep from getting sued. Graham Depo. (Doc. 54-10) at Tr. 164-68. Subsequent
21

public prayer events have been held in Ocala, at least one of which was organized
and sponsored by a church. Id. at 74; Doc. 54-76 at 5.
Two months after the Prayer Vigil, plaintiffs filed suit under 42 U.S.C. §§ 1983
and 1988(b) and are now seeking nominal damages, attorneys’ fees, and costs
against the City of Ocala, and Mayor Guinn and Chief Graham in their individual
capacities, for their alleged violations of the Establishment Clause of the First
Amendment.12 See Docs. 1 and 22. The parties’ cross-motions for summary
judgment are now before the Court.
III.

Standard of Review
“A district court must grant summary judgment ‘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.’” Atheists of Fla., Inc. v. City of Lakeland, 713 F.3d 577, 589 (11th
Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). In making this assessment, the court
“view[s] all facts and reasonable inferences drawn therefrom in the light most
favorable to the non-moving party.” Id. (quotation, citation, and alteration omitted).
Conclusory statements are insufficient to create a disputed issue as to a material fact.
Carter v. City of Melbourne, 731 F.3d 1161, 1167 (11th Cir. 2013) (citation omitted).
“Issues of fact are ‘genuine’ only if a reasonable jury, considering the evidence

Some additional parties and claims (including a claim for injunctive relief) were
previously dismissed. See Doc. 22.
12

22

presented, could find for the nonmoving party.” Id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986)). “The principles governing summary judgment do not
change when the parties file cross-motions for summary judgment.”13 T-Mobile S.
LLC v. City of Jacksonville, 564 F. Supp. 2d 1337, 1340 (M.D. Fla. 2008).
IV.

Discussion
A.

Standing

Chief Graham and the City argue that plaintiffs lack standing to bring this
case.14 At issue here is Article III standing, which requires that plaintiffs show (1) they
“have suffered an ‘injury-in-fact;’” (2) there is a “causal connection between the injury
and the [defendants’] conduct;” and (3) the injury will “likely” “be redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(quotations and citations omitted).

In an Establishment Clause case, a “non-

economic injury which results from a party’s being subjected to unwelcome religious
statements” may be sufficient to demonstrate an “injury in fact” resulting from the
defendant’s conduct “so long as the parties are ‘directly affected by the laws and

To the extent the City and Chief Graham argued in their papers and at the
hearing that plaintiffs have admitted defendants’ statement of undisputed facts by
failing to specifically refute each and every statement, the Court disagrees. Plaintiffs
point to disputed facts throughout their briefs (but argue the facts in dispute are
immaterial) and also note where they believe defendants have misstated the
evidence.
13

14

Mayor Guinn does not challenge plaintiffs’ standing.
23

practices against whom their complaints are directed.’”

Saladin v. City of

Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987) (quoting Sch. Dist. of Abington Twp.
v. Schempp, 374 U.S. 203, 224 n.9 (1963)). Yet, a party must show more than a
mere psychological suffering “produced by observation of conduct with which one
disagrees.” Valley Forge Christian Coll. v. Ams. United for Separation of Church and
State, Inc., 454 U.S. 464, 485 (1982). A “spiritual stake in First Amendment values”
is not enough to show injury to support standing. ACLU v. Rabun Cty. Chamber of
Commerce, Inc., 698 F.2d 1098, 1103 (11th Cir. 1983). However, where a party is
forced to choose between being “subjected to unwelcome religious exercises” and
being “forced to assume special burdens to avoid them,” that party has suffered an
injury in fact sufficient to support standing. Valley Forge, 454 U.S. at 486, n.22; see
Saladin, 812 F.2d at 693 (holding plaintiffs who were City residents bore “more than
an abstract interest” in having City remove word “Christianity” from its city seal,
demonstrating an injury in fact).
In Rabun County, a group of Georgia residents, motivated by their spiritual
beliefs or commitment to the separation of church and state, challenged the
placement of a large illuminated cross in Georgia’s Black Rock Mountain State Park.
698 F.2d at 1101, 1107-08. The Eleventh Circuit found that, notwithstanding the
plaintiffs’ motivations in bringing suit, two of the plaintiffs demonstrated an injury in
fact sufficient to create standing because they were residents of Georgia (albeit living
24

more than 100 miles from Black Rock State Park), made use of the state parks, and
their use of Black Rock was affected by “the physical and metaphysical impact of the
cross.” Id. at 1107-08. Thus, they faced a “special burden” of having to use other
parks, or using Black Rock, but being subjected to unwelcome religious symbolism
if they did so. Id. at 1108. The Eleventh Circuit also stressed that the severity of the
plaintiffs’ injuries was irrelevant; so long as they demonstrated some direct stake in
the outcome, as opposed to a mere interest in the matter, they had shown an injury
in fact. Id. (quoting United States v. SCRAP, 412 U.S. 669, 689, n.14 (1973)); see
also Pelphrey v. Cobb Cty., 547 F.3d 1263, 1279-80 (11th Cir. 2008) (finding plaintiff
had standing to challenge invocation at planning commission meetings where he
attended three meetings and watched other meetings on the internet).
The Court found plaintiffs had standing when it ruled on defendants’ motion to
dismiss. See Doc. 22, adopting Report and Recommendation, Doc. 14. The factual
development of the case since then further supports that determination.

The

undisputed facts reveal that the Hales are residents of Marion County who have
attended events in the Downtown Square in Ocala. They saw the Ocala Police
Department facebook page and attended the Prayer Vigil because they wanted to
observe, but also because they have interest in being a part of the community and are
concerned about crime. They attended the Prayer Vigil but were unable to participate
in any of the activity because the speakers only invited the audience to pray and sing.
25

The Hales have more than a mere interest in the matter. They have demonstrated
an injury in fact. Similarly, Art Rojas lives and works in the City of Ocala. He saw the
Ocala Police Department facebook page and attended the Prayer Vigil. He wants his
community to be inclusive of all its residents, not just Christians. Like the Hales,
Rojas has more than a mere interest in the matter and has demonstrated injury in
fact.
Having demonstrated injury in fact, the causal connection and redressability
prongs of standing are easily satisfied here. Plaintiffs’ injuries are causally connected
to the Prayer Vigil which they contend was sponsored by the City of Ocala and its
Chief of Police. If proven, an award of nominal damages for conduct that violated the
Establishment Clause would redress their injuries. See, e.g., Amnesty Int’l, USA v.
Battle, 559 F.3d 1170, 1177-78 (11th Cir. 2009) (explaining that § 1983 allows for the
recovery of nominal damages when constitutional rights are violated but do not result
in injury giving rise to compensatory damages); Covenant Media of S.C., LLC v. City
of North Charleston, 493 F.3d 421, 428 (4th Cir. 2007) (holding that unconstitutional
application of the law created a claim redressable by nominal damages); Rabun
County, 698 F.2d at 1104, n.10 (explaining that the causal connection requirement
was not at issue and, if the plaintiffs suffered an injury from the presence of the cross,
it would be redressed by its removal); Saladin, 812 F.2d at 690, n.5 (noting other
standing prongs were not at issue). Chief Graham and the City have not argued
26

otherwise here.
Further, none of the prudential considerations which might counsel toward
“judicial constraint” are present– plaintiffs’s complaint falls within the zone of interests
protected by the Establishment Clause, the issue raised here is not abstract such that
it is more appropriately addressed by the legislative branch, and plaintiffs are
asserting their own interests. See Saladin, 812 F.2d at 690, 690 n.5 (discussing
prudential concerns and finding them clearly satisfied).
The Seventh Circuit’s decision in Freedom From Religion Foundation, Inc. v.
Obama, 641 F.3d 803 (7th Cir. 2011), upon which the City and Chief Graham rely in
challenging plaintiffs’ standing, does not compel a different result. Among other legal
deficiencies, the plaintiffs in that case were unable to show how a presidential
proclamation calling all the nation’s citizens to pray or give thanks in accordance with
their own faiths and consciences caused them to suffer any special burden, or any
burden at all. Id. at 805-08. The circumstances here were different– the citizens of
the City of Ocala and Marion County were called to join a Prayer Vigil whose stated
purpose was “to show unity and help in this senseless crime spree that is affecting our
communities.” Doc. 1 at Ex. A. Plaintiffs are citizens of that community and have
expressed their interest in being united as a community and in alleviating crime; they

27

thus bore the requisite special burden.15
The City and Chief also argue that plaintiffs would have suffered no injury had
they simply ignored the facebook page and opted not to attend the Prayer Vigil. But
being forced to choose between avoiding the religious message and being involved
members of their community was exactly the Hobson’s choice creating plaintiffs’
injury. See Rabun County, 698 F.2d at 1106-08, 1107 n.17 (explaining that plaintiffs’
options to use state parks were restricted by placement of the cross, thereby creating
individualized injury as a consequence of the challenged action); see also SCRAP,
412 U.S. at 689, n.14 (“The basic idea that comes out in numerous cases is that an
identifiable trifle is enough for standing to fight out a question of principle; the trifle is
the basis for standing and the principle supplies the motivation.”) (quoting Kenneth
Culp Davis, Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 613 (1968)));
Am. Humanist Ass’n, Inc. v. Douglas Cty. Sch. Dist. RE-1, 859 F.3d 1243, 1252 (10th

Moreover, the Seventh Circuit’s Freedom From Religion decision reads Supreme
Court precedent somewhat differently than the Eleventh Circuit, which is, of course,
binding on this Court. See Freedom From Religion, 641 F.3d at 810-11 (Williams, J.,
concurring) (questioning whether the majority opinion’s interpretation of Supreme
Court precedent strays too far from rule adopted by every other circuit to have
considered the matter, including the Eleventh).
The Court likewise rejects the City and Chief Graham’s position stated in oral
argument that Newdow v. Bush, 391 F. Supp. 2d 95 (D.D.C. 2005), (which is not
binding on this Court in any event) stands for the proposition that only repeated
exposure to unwanted religious activity can give rise to standing. Id.(finding Newdow
lacked standing to challenge prayer at presidential inauguration and his claims were
moot).
15

28

Cir. 2017) (finding parent had standing to assert Establishment Clause claim against
school board where school sent one flyer and one email asking parents to consider
donating to school club’s mission trip). Plaintiffs have standing.
B.

Establishment Clause

The Establishment Clause of the First Amendment provides that “Congress
shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof.” U.S. Const. amend. I. In so stating, “the First Amendment
mandates governmental neutrality between religion and religion, and between religion
and nonreligion.” Epperson v. Arkansas, 393 U.S. 97, 104 (1968). Incorporated
through the Due Process Clause of the Fourteenth Amendment, the First Amendment
“applies to state and municipal governments, state-created entities, and state and
municipal employees.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1268
(11th Cir. 2004) (citations omitted).
“[T]he Establishment Clause was intended to afford protection” against “the
three main evils” of “sponsorship, financial support, and active involvement of the
sovereign in religious activity.” Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)
(quotation and citation omitted). Still, “[i]n every Establishment Clause case, [the
court] must reconcile the inescapable tension between the objective of preventing
unnecessary intrusion of either the church or the state upon the other, and the reality
that, as the [Supreme] Court has so often noted, total separation of the two is not
29

possible.” Lynch v. Donnelly, 465 U.S. 668, 672 (1984); see also Van Orden v. Perry,
545 U.S. 677, 690 (2005) (plurality opinion) (explaining in a case where a Ten
Commandments monument had been in place for forty years on government property
with other monuments and historic markers that “[s]imply having religious content or
promoting a message consistent with religious doctrine does not run afoul of the
Establishment Clause”) (citations omitted).
“The Establishment Clause like the Due Process Clauses is not a precise,
detailed provision in a legal code capable of ready application.” Id. at 678. Thus,
“Establishment Clause challenges are not decided by bright-line rules, but on a caseby-case basis with the result turning on the specific facts.” Glassroth v. Moore, 335
F.3d 1282, 1288 (11th Cir. 2003); see also Selman v. Cobb Cty. Sch. Dist., 449 F.3d
1320, 1323 (11th Cir. 2006) (“Knowledge of the particular facts and specific
circumstances is essential to a determination of whether the governmental acts in
question are religiously neutral.”).
In Lemon, the Supreme Court enunciated the three part test which is the
controlling standard for Establishment Clause jurisprudence: “First, the [government
activity] must have a secular . . . purpose; second, its principal or primary effect must
be one that neither advances nor inhibits religion;” and third, “the [government activity]
must not foster an excessive government entanglement with religion.” 403 U.S. at
612-13 (quotation and citations omitted). “[I]f even one of these three principles is
30

violated, the challenged governmental action will be found to violate the
Establishment Clause.” Rabun County, 698 F.2d at 1109. The factors used to
assess the effect of government action are similar to those used to assess whether
entanglement is excessive.

Agostini v. Felton, 521 U.S. 203, 232-33 (1997).

Nonetheless, “while the Court has folded its traditional ‘excessive entanglement’
inquiry into its ‘primary effect’ analysis, the substance of its Establishment Clause
jurisprudence remains fundamentally unaltered.” Holloman, 370 F.3d at 1285; see
also McCreary County v. ACLU, 545 U.S. 844 (2005) (reaffirming validity of Lemon
test and not citing Agostini). Although they have cited cases for certain propositions
that used other tests, the parties all agree the Lemon test applies to this
Establishment Clause case.
Lemon’s purpose prong is viewed objectively, taking into account “the
traditional external signs that show up in the text, legislative history, and
implementation of the statute, or comparable official act.” McCreary, 545 U.S. at 862
(quotations and citations omitted).

This consideration should include “the

implementation of government action,” knowledge about “the specific sequence of
events” leading to the action, and “the history and context of the community and forum
in which” the action occurs. Id. at 866 (reviewing cases). Where a predominantly
religious purpose is found, it is often because “the government action itself bespoke
the purpose,” leaving the court to draw the “commonsense conclusion” from the
31

“openly available data” that the purpose was religious. Id. at 862-63 (citations
omitted). Thus, although a government official’s “stated reasons will generally get
deference, the secular purpose required has to be genuine, not a sham, and not
merely secondary to a religious objective.” Id. at 864.
In applying the Lemon test’s purpose prong to a case involving prayer in public
school, the Eleventh Circuit explained that:
[P]rayer is the quintessential religious practice [which]
implies that no secular purpose can be satisfied. The
primary effect of prayer is the advancement of ones[’]
religious beliefs. It acknowledges the existence of a
Supreme Being. The involvement of [the defendant school
district] in such activity involves the state in advancing the
affairs of religion. The Supreme Court and this circuit have
indicated that such prayer activities cannot be advanced
without the implication that the state is violating the
establishment clause.
Jaffree v. Wallace, 705 F.2d 1526, 1534-35 (11th Cir. 1983) (citations omitted); see
also Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir. Unit A Aug. 1981) (rejecting
officials’ statements of secular purpose because “prayer is a primary religious activity
in itself” and its observance in a public school classroom has an “obvious[ ] religious
purpose”).
In a more recent school prayer case, the Eleventh Circuit reaffirmed the point
of Jaffree and Treen, stating that “[b]ecause prayer is ‘a primary religious activity in
itself,’ a teacher or administrator’s intent to facilitate or encourage prayer in a public
school is per se an unconstitutional intent to further a religious goal.” Holloman, 370
32

F.3d at 1285 (quoting Treen, 653 F.2d at 901). In Holloman, the Eleventh Circuit
explained that notwithstanding the teacher’s goal of teaching compassion, the
consequences of instituting that goal through prayer ran afoul of the purpose prong
in the Establishment Clause analysis. Id. at 1285-86. “‘The unmistakable message
of the Supreme Court’s teachings is that the state cannot employ a religious means
to serve otherwise legitimate secular goals.’” Id. at 1286 (quoting Treen, 653 F.2d at
901).
But this is not a school prayer case16 and, under the Establishment Clause,
“detail is key.” McCreary, 545 U.S. at 867. Thus, the Court must “look to the record
of evidence showing the progression leading up to” the Prayer Vigil along with the
event itself to determine its purpose.17 McCreary, 545 U.S. at 868. Given that the

Nor is it a legislative prayer case. See Order (Doc. 22) (adopting Report and
Recommendation (Doc. 14) (noting that this is not a case about legislative prayer,
which is an exception to the Establishment Clause analysis, citing Marsh v.
Chambers, 463 U.S. 783 (1983) and Pelphrey v. Cobb County, 547 F.3d 1263, 1269
(11th Cir. 2008))). See also County of Allegheny v. ACLU, 492 U.S. 573, 603 n.52
(1989) (“Legislative prayer does not urge citizens to engage in religious practices, and
on that basis could well be distinguishable from an exhortation from government to
the people that they engage in religious conduct.”), abrogated on other grounds by
Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).
16

Throughout this analysis, the Court views the conduct as a continuum of action,
from the meeting at which the Prayer Vigil was first suggested to the Prayer Vigil
itself. To the extent the City and Chief Graham have parsed the evidence such that
the facebook post and the Prayer Vigil are analyzed separately and each in a
vacuum, the Court does not find support for that approach in the allegations of the
complaint, or in the law.
17

33

facebook page posting by the Ocala Police Department asked Ocala’s citizens to join
in “fervent prayer”– an undisputedly religious action, and that the Prayer Vigil
consisted of chaplains offering Christian prayers and singing from the stage18 with
responsive audience participation, a reasonable observer would find that the Prayer
Vigil had a religious purpose. That the Chief’s original purpose in convening the
group was to combat crime, that the facebook letter discussed the recent crime spree,
and that uniformed police officers, including the Chief, may have engaged various
members of the crowd for that secular purpose, does not derogate from the overall
religious nature of the event. The “openly available data support[s] a commonsense
conclusion that a religious objective permeated” the Prayer Vigil. McCreary, 545 U.S.
at 863, 869 (finding “reasonable observer could only think” posting of a particularly
religious version of Ten Commandments, allegedly displayed to educate about
founding of legal documents, had religious purpose where other foundational
documents were only included as a result of litigation and where pastor spoke at the
dedication ceremony delivering religious message).
The Court next considers whether the “principal or primary effect” of the Prayer
Vigil was “one that neither advance[d] nor inhibit[ed] religion.” Lemon, 403 U.S. at
613. “The effect prong asks whether the practice under review in fact would convey
The only song Chief Graham recalled hearing at the Prayer Vigil was “God Bless
America.” Graham Depo. (Doc. 54-10) at Tr. 140. Ms. Porgal recalled that the words
were changed to “God Heal America.” Porgal Depo. (Doc. 54-13) at Tr. 35.
18

34

a message of endorsement or disapproval [of religion] to an informed, reasonable
observer.” Glassroth, 335 F.3d at 1297 (quotation, citation, and alteration omitted).
The effect is analyzed without regard to the government’s actual purpose. Wallace
v. Jaffree, 472 U.S. 38, 56 n.42 (1985) (quoting Lynch, 465 U.S. at 690 (O’Connor,
J., concurring)).
Though held in a public space (Ocala’s Downtown Square), the event here–
a prayer vigil– can hardly be thought to be anything other than an endorsement of
religion. The content of the facebook letter (inviting the community to come join in
fervent prayer), the name of the event (“Community Prayer Vigil”), the nature of the
speakers’ remarks (Christian prayers and songs), the participation from the crowd
(responding in religious colloquy with speakers, holding hands in circles, bowing
heads), all bespeak the religious effect of the activity, which was to promote prayer.
See Holloman, 370 F.3d at 1286 (finding teacher’s conduct failed Lemon’s “effect”
prong because the effect of her call for students to pray promoted the “quintessential
religious practice” of praying, “endors[ed] religious activity, [and] encourag[ed] or
facilitat[ed] its practice”) (quotation and citation omitted); Gilfillan v. City of
Philadelphia, 637 F.2d 924, 930-31 (3d Cir. 1980) (finding city’s expenditures to
create platform from which Pope would celebrate a Mass and deliver a sermon to
over 1,000,000 people had religious effect, notwithstanding that Pope would be
celebrating Mass and delivering a sermon even if city had not provided the platform);
35

Hewett v. City of King, 29 F. Supp. 3d 584, 635 (M.D.N.C. 2014) (finding mayor’s
delivery in his official capacity of religious messages at privately sponsored annual
public commemorative events which featured Christian prayer practices had effect of
City endorsement of Christianity); see also Milwaukee Deputy Sheriffs’ Ass’n v.
Clarke, 588 F.3d 523, 528-29 (7th Cir. 2009) (finding sheriff’s invitation to religious
group to speak at mandatory employee meetings gave appearance of state
endorsement of religion in violation of Establishment Clause); cf. Am. Atheists, Inc.
v. Port Auth. of N.Y. & N.J., 760 F.3d 227, 243-44 (2d Cir. 2014) (finding reasonable
observer would know Ground Zero Cross held such historical significance to the story
of the 9/11 recovery that its inclusion with hundreds of other artifacts at government
museum had effect of ensuring historical completeness and not of promoting religion).
The last prong of the Lemon test asks whether the government activity
“foster[ed] an excessive government entanglement with religion.” 403 U.S. at 613
(quotation and citations omitted). “For the First Amendment rests upon the premise
that both religion and government can best work to achieve their lofty aims if each is
left free from the other within its respective sphere.” McCollum v. Bd. of Ed., 333 U.S.
203, 212 (1948). “Entanglement is a question of kind and degree,” Lynch, 465 U.S.
at 684. Compare Gilfillan, 637 F.2d at 931-32 (finding city failed entanglement test
based on city’s joint planning with Archdiocese for Pope’s visit and divisiveness
engendered in the community as evidenced by lawsuits), and Hewett, 29 F. Supp. 3d
36

at 635 (finding excessive entanglement based on mayor’s delivery of religious
messages while in his official capacity), with Lynch, 465 U.S. at 684 (finding no
excessive entanglement where there was no evidence of contact with church
authorities concerning content or design of creche exhibit, and city bore no
maintenance costs). Even without more, an invitation by a city police department
encouraging the community’s attendance at a Prayer Vigil entangles the government
with religion. Given the additional involvement of the Ocala Police Department
Chaplains in organizing and participating in the event while wearing their Ocala Police
Department uniforms, the entanglement was excessive. Indeed, it is apparent that
without the Chief’s invitation, the involvement of police officials in planning the event,
and the Ocala Police Department Chaplains’ participation, there would not have been
a Prayer Vigil at all.
Having failed each of Lemon’s three prongs, the Prayer Vigil would appear to
violate the Establishment Clause. Even the City and Chief Graham agreed at oral
argument that a government entity or actor may not organize and hold a prayer vigil
without violating the Establishment Clause.19 But they say that is not what happened
here. Rather, they contend the Prayer Vigil was a community-sponsored activity, not
For his part, the Mayor does not admit that the government couldn’t host a prayer
vigil if it chose to do so, but he has confused the law that applies to legislative prayer
with that applicable in most other Establishment Clause challenges, including this
one. See Doc. 53 (Mayor’s brief). The Mayor maintained this erroneous position at
oral argument.
19

37

a government-sponsored event. And for their part, plaintiffs don’t disagree that it
would be perfectly appropriate for the community or any non-government segment
thereof to organize and hold a prayer vigil in the public Downtown Square.20 What
this case turns on, then, is: Whose Prayer Vigil was this?
While a more typical Establishment Clause case might focus on whether a
statute or government activity has run afoul of the Lemon test, some, like here, hinge
on whether the activity at issue belongs to the government at all. In Adler v. Duval
County School Board, 250 F.3d 1330 (11th Cir. 2001), the Eleventh Circuit, sitting en
banc to review its prior decision on remand from the Supreme Court, considered
whether the school board violated the Establishment Clause when its policy permitted
high school seniors to decide whether (or not) to have a student speaker of their
choosing at graduation who could then deliver whatever message the student wanted
without review or monitoring from any school officials.

250 F.3d at 1332.

In

reinstating its earlier opinion, the Eleventh Circuit again determined that even though
the graduation itself was a school-sponsored event, and the school board policy
authorized a student message, the policy did not violate the Establishment Clause
because school officials could not dictate that there would even be a student message
Indeed, as Chief Graham suggested in his emails to some of the plaintiffs, the
City would abridge the First Amendment rights of its citizens if it denied them use of
the public Downtown Square for prayer. See Fowler v. Rhode Island, 345 U.S. 67
(1953) (striking city ordinance which prohibited making any public religious or political
address in city parks).
20

38

and, if there was, school officials had no control over who would deliver it or the
content of the message. Id. at 1341-42. Thus, the speech was not “state-sponsored”
and therefore could not violate the Establishment Clause.

Id. 1342; see also

Holloman, 370 F.3d at 1287 (“While purely private prayer by students is
constitutionally protected, prayer that is led, encouraged, or facilitated by school
personnel is constitutionally prohibited”).
In another case raising the question of state sponsorship, Doe v. Village of
Crestwood, 917 F.2d 1476 (7th Cir. 1990), a city employee, who was also a member
of a club involved with an annual village-sponsored Italian festival in a public park,
invited a Roman Catholic priest to deliver a mass during the festival. 917 F.2d at
1477-78. Reviewing the district court’s injunction to stop the mass, the Seventh
Circuit noted, “everything turns on who is putting on this mass.” Id. at 1479. Looking
at the slim record available on the emergency motion for stay, the court considered
that a city employee selected and recruited the priest, and advertisements and other
publicity for the event referred to “us” and “our” (meaning the village) and did not
mention that anyone other than the village was sponsoring the mass. Id. From this,
the Seventh Circuit determined that the record supported the district court’s finding
that the mass was sponsored by the government in violation of the Establishment
Clause. Id.

39

Similarly, in Newman v. City of East Point, 181 F. Supp. 2d 1374 (N.D. Ga.
2002), the plaintiffs sought to enjoin the city and its mayor from holding the mayor’s
annual prayer breakfast. Id. at 1380. The city argued it was not promoting or
endorsing the event, it was privately paid for and was not going to be held on city
property. Id. at 1376. But plaintiffs demonstrated that in the past, city resources had
been used to organize, promote, and pay for the mayor’s prayer breakfast. Id. at
1380. This evidence included a letter from the mayor on city letterhead advising
clergy about the breakfast and inviting them to participate in the planning and
soliciting donations for the event; memoranda from the mayor to a city employee
requesting reimbursements related to the prayer breakfast; and the inclusion of the
event in a city-produced community flyer about other city-led events. Id. The court
determined plaintiffs’ showing was sufficient to secure an injunction prohibiting the city
and the mayor in her official capacity from organizing, advertising, promoting, or
endorsing the breakfast or using city resources to do so.21 Id. at 1381-82; see also
Marrero-Mendez v. Calixto-Rodriguez, 830 F.3d 38, 45-46 (1st Cir. 2016) (holding that
police commander’s initiation of prayer with two commanding officers during official

The court denied plaintiffs’ request to enjoin the mayor’s prayer breakfast from
taking place at all, and the request to enjoin the mayor or city officials from attending,
finding they had a right as citizens to attend and the defendants had provided
assurance the event would not use city facilities, funding, or resources, and would not
have the appearance of being endorsed by the city. Newman, 181 F. Supp. 2d at
1382.
21

40

meeting of police officers could not be anything but state-sponsored prayer and “only
the plainly incompetent or those who knowingly violate the law” could deny that “a
religious practice . . . conducted by a state official at a state function [is] state
sponsorship”) (quotations and citations omitted); cf. Hewett, 29 F. Supp. 3d at 620-23
(determining that (usually Christian) flags attached to city flag pole flown in public
park pursuant to a lottery program were private speech, notwithstanding that they had
some elements of being public speech, because purpose was to allow individual
citizens to honor veterans in manner of their choosing).
From these cases and others, it is apparent that for purposes of the
Establishment Clause, whether an activity “belongs to” or is “sponsored by” the
government turns on the degree to which a government entity or official initiated,22
organized,23 facilitated,24 promoted,25 provided space for,26 paid for,27 supervised,28

Village of Crestwood, 917 F.2d at 1479; McCreary, 545 U.S. at 869; MarreroMendez, 830 F.3d at 45.
22

23

Newman, 181 F. Supp. 2d at 1380.

24

Holloman, 370 F.3d at 1287, 1288.

25

Newman, 181 F. Supp. 2d at 1380; Village of Crestwood, 917 F.2d at 1479.

26

Newman, 181 F. Supp. 2d at 1376; Village of Crestwood, 917 F.2d at 1479.

27

Newman, 181 F. Supp. 2d at 1380.

Holloman, 370 F.3d at 1287; Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 310
(2000).
28

41

participated in,29 regulated,30 censored,31 led,32 endorsed,33 encouraged,34 or otherwise
controlled35 the activity.36 Applied here, these factors strongly indicate government
sponsorship. Nonetheless, defendants disclaim any official role in the Prayer Vigil.
Because each had different involvement, the potential liability of each defendant must
be addressed separately.
1.

Chief Graham

Chief Graham contends that he had little involvement and no control over the
Prayer Vigil.37 He claims that although he called the meeting of selected police

29

Holloman, 370 F.3d at 1287; Marrero-Mendez, 830 F.3d at 45.

30

Adler, 250 F.3d at 1337.

31

Adler, 250 F.3d at 1333.

32

Holloman, 370 F.3d at 1287.

33

Newman, 181 F. Supp. 2d at 1380; Holloman, 370 F.3d at 1288.

34

Holloman, 370 F.3d at 1287, 1288; Santa Fe Ind. Sch. Dist., 530 U.S. at 308.

35

Adler, 250 F.3d at 1341.

This list of factors is not intended to be exclusive. See, e.g., Hewett, 29 F. Supp.
3d at 620-23 (looking at government versus private speech factors established in
Sons of Confederate Veterans, Inc. v. Comm’n of Dep’t of Motor Vehicles, 288 F.3d
610, 618 (4th Cir. 2002) (purpose of program, degree of editorial control, identity of
speaker, and who bears ultimate responsibility), as factors to consider in determining
whether flags were government or private speech).
36

Chief Graham contends that plaintiff Rojas “understood and has conceded” that
Chief Graham had no control over whether to cancel the Vigil, but that seems to be
a misreading of Rojas’ deposition testimony. See Brief (Doc. 52) at 7; Rojas Depo.
37

42

department employees, chaplains, and a community organizer to discuss how to
involve the community in solving the crime spree, he left the meeting once the idea
of a Prayer Vigil was raised; others planned the Prayer Vigil without his further input;
while he signed the facebook letter, he did not draft it; he viewed the Prayer Vigil as
a community effort between Ms. Haynes and volunteer chaplains to bring out the
citizenry; he was copied on emails about the event only because it is routine to do so
for any public event and not because he was involved; he explained to various
citizens by email that it was not a City event; he did not direct any officers or chaplains
to attend; City funds weren’t used to organize or host the Prayer Vigil; he did not know

(Doc. 54-12) at Tr. 25-26, 28-29 (testifying that if the Chief could not cancel the Vigil,
he could at least stop the police chaplains from being involved). Moreover, the
Establishment Clause focuses on the constitutionality of the government’s action from
the perspective of a reasonable observer (who is not necessarily the plaintiff).
Additionally, there is no such concern with the Hales, the two other plaintiffs here.
See, e.g., D. Hale Depo. (Doc. 54-14) at Tr. 19-22; Doc. 54-42 (marked Ex. 26) (Chief
Graham’s email correspondence with D. Hale); L. Hale Depo. (Doc. 54-15) at Tr. 25,
28-31, 49-50; Doc. 54-41 (marked Ex. 25) (Chief Graham’s email correspondence
with L. Hale). The City and Chief Graham tried to suggest that Ms. Hale knew Chief
Graham could not cancel the Vigil because he told Ms. Porgal that (see Brief, Doc.
52 at 4) and Ms. Hale testified that Ms. Porgal “probably at least gave me the gist” of
Chief Graham’s communications with Ms. Porgal (Doc. 54-15 at Tr. 13). But this is
hardly enough to import Ms. Porgal’s knowledge of any of Chief Graham’s particular
statements to Ms. Hale. Moreover, when responding to the direct question of whether
she believed they (the Chief and Mayor) had the power to cancel the Vigil, Ms. Hale
testified: “I believe that they did. I believe they still do, should it occur again. And I
believe that if it had been otherwise, they would have put that in writing. They would
have taken [the] letter down immediately and have said, sorry, folks, that was a
mistake; this is being held by these [other] people. Contact them for information.” Id.
at Tr. 49.
43

who the speakers would be; he encouraged a member of the atheist community to
contact a participating minister if he wished to speak at the event; the speakers did
not include any uniformed police officers; and Chief Graham did not speak to the
crowd from the stage but instead attended to talk to citizens about crime and was
present along with a few other officers for security purposes.
But plaintiffs point to strong evidence supporting their position that Chief
Graham had significant involvement in the Prayer Vigil, from its conception through
its conclusion. For starters, the Chief initiated the meeting at the police department
at which the plan for the Prayer Vigil was hatched and he pronounced it “a great idea.”
Graham Depo. (Doc. 54-10) at Tr. 23. The facebook posting which invites the
community to come to the Prayer Vigil is written on Ocala Police Department
letterhead and is signed by Chief Graham in his capacity as Chief of Police. The
letter states in part, “We are facing a crisis in the City of Ocala and Marion County that
requires fervent prayer and your presence . . . I [Chief Graham] am urging you all to
please support a very important ‘Community Prayer Vigil.’” Doc. 1, Ex. A. Chief
Graham agrees that he read the letter and directed that it be posted on the
Department’s facebook page. He further agreed that in doing so, he was promoting
the Prayer Vigil. The record also shows that Chief Graham sent an email suggesting
the date for the Prayer Vigil be moved to accommodate local ministers; he sent
multiple emails to citizens in reference to the Prayer Vigil that suggested his
44

involvement, using words such as “we” and “I,” and he did not direct these inquirers
to contact someone else to complain; nor did he disabuse the Mayor or other
supporters in his emails as to whose Prayer Vigil it was. Chief Graham said he did
not know what the speakers would say, yet he received an email from Quintana
recommending the Vigil consist of “PRAYER only.” When the speakers are chaplains
and the platform is a prayer vigil, a reasonable observer would understand the content
of the program would be prayer.
Chief Graham also permitted Captain Edwards and others to work on the Vigil
while on City time. Additionally, although the Ocala Police Department Chaplains are
volunteers, they are similar to employees in that they are covered by worker’s
compensation, have office space at the Police Department, are issued police badges,
receive paid uniforms (which they wore to the Prayer Vigil), and are considered
members of the Ocala Police Department who are subject to the authority of Chief
Graham, who appoints them. When Chief Graham was copied on an email to the
Chaplains advising them that the Chief wanted them to attend the Vigil and to wear
their uniforms, Chief Graham did not follow up to correct what he now claims was not
really his directive. Of the ten people on the stage at the Prayer Vigil, four were
uniformed Ocala Police Department Chaplains, and another was an off-duty Ocala
Police Department employee who was not in uniform (but who may have announced

45

to the crowd that he was indeed a police officer).38 And Chief Graham agreed that
participating in a prayer vigil would be part of an official function of an Ocala Police
Department Chaplain.
In reaching its decision, the Court relies only upon undisputed material facts–
i.e., those disclosed by the contemporaneous documents, such as the emails which
show Chief Graham’s knowledge and involvement, his deposition testimony, and that
of the plaintiffs, to the extent it is undisputed. Defendants’ briefs are filled with bold
statements such as, “[O]nce the idea of a community vigil was raised . . . Chief
Graham left the meeting and had no further involvement with the Vigil, except to
coordinate the presence of uniformed officers (including himself) at the Vigil to
maintain safety and engage citizens, as is usual for public events held downtown[,]”
Doc. 52 at 27, and “[t]he only other action attributable to Graham in relation to the
Vigil is his expression of support for the event through the Facebook post.” Id. But
such rhetoric, belied by the undisputed facts, is no impediment to granting summary
judgment. Likewise, many of the statements made in Chief Graham’s declarations
(both of which post-date his deposition) seem very lawyerly and designed to “walk
back” his deposition testimony; but to the extent these statements contradict Chief
See Doc. 54-31 (marked Ex. 15), which apparently is a draft of Captain Edwards’
remarks (sent to himself), in which he greets the crowd, explaining he is there in many
capacities, including as a police officer and a child of God, and, like the audience, is
calling on God through prayer, hoping to end senseless shooting and violence in the
city.
38

46

Graham’s deposition testimony without explanation or are conclusory, the Court need
not consider them. See supra note 6.

Also, while defendants do point to some

discrepancies in the evidence, they are about immaterial matters. In the end, the
Court, fairly applying the undisputed facts as described supra, pp. 2-21, and drawing
all reasonable inferences in Chief Graham’s favor, must ask this question: Has Chief
Graham shown a genuine issue of material fact that would preclude a finding that his
actions violated the Establishment Clause? The answer is “no.”
In making this assessment, the Court notes that the facts here are
distinguishable from cases upon which Chief Graham relies. For example, in Allen
v. Consolidated City of Jacksonville, 719 F. Supp. 1532 (M.D. Fla. 1989), the city
passed a resolution and established a committee which, if it so decided, could call for
a day of “non-denominational voluntary prayer, meditation, personal commitment or
other appropriate solemn dedication” to focus attention on the city’s illegal drug
problem. Id. at 1533. The committee (chaired by a Jacksonville lawyer) was
authorized by the City’s resolution to encourage individuals to participate by involving
religious organizations, public and private schools, private businesses, local
government offices and the media. Id. The committee set a date for the “anti-drug
day” and plaintiff filed a motion for a temporary restraining order and preliminary
injunction to enjoin any activities on the grounds that the city’s involvement violated
the Establishment Clause. Id. In denying plaintiff’s motion, the court found plaintiff
47

had no standing, but alternatively ruled that the city’s only acts were to pass the
“broad” and “general” resolution and appoint the committee, which did not expose
anyone to prayer, did not involve prayers at any particular venue, did not include
group prayer at any public forum or by any public official, and did not involve use of
city funds to host or promote any activities. Id. at 1534. The facebook letter here is
simply not parallel to the city’s broad and general resolution in Allen; and the Prayer
Vigil, through its planning and execution, stands in contrast to Allen, where the record
was “silent as to any specific events planned”. Id.
Adler is likewise distinguishable in that the Court found there was a “total
absence of state involvement in deciding whether there [would] be a graduation
message,” let alone whether it would be a prayer. 250 F.3d at 1342. This, by
contrast, was a Prayer Vigil planned by the Ocala Police Department and announced
to the community on the City of Ocala Police Department’s facebook page. And in
Lynch, a case about a holiday display that included a creche erected by the City on
private property, the Supreme Court looked to the city’s forty year history of public
holiday displays in determining that no Establishment Clause violation occurred,
likening it to the display of religious paintings in government supported museums.
465 U.S. at 671, 683. This case is not about a long-standing passive holiday display
and Lynch’s result is not determinative here. Looking at the “particular facts and
specific circumstances” of this case, Selman, 449 F.3d at 1323, and construing “all
48

reasonable doubts about the facts” in Chief Graham’s favor, Eternal Word Television
Network, 818 F.3d at 1138, the Court is left with but one conclusion: Chief Graham’s
actions violated the Establishment Clause.
Chief Graham argues that even if he is deemed to have violated plaintiffs’ rights
under the Establishment Clause, the case against him should not go forward because
he is entitled to qualified immunity. “Qualified immunity protects government officials
performing discretionary functions from suits in their individual capacities unless their
conduct violates clearly established statutory or constitutional rights of which a
reasonable person would have known.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th
Cir. 2003) (internal quotations and citations omitted). Where it applies, “[q]ualified
immunity gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions.” Lane v. Franks, 134 S. Ct. 2369, 2381 (2014)
(quotation and citation omitted).
“To even be potentially eligible for summary judgment due to qualified
immunity, the official must have been engaged in a ‘discretionary function’ when he
performed the acts of which the plaintiff complains.” Holloman, 370 F.3d at 1263-64
(quotation and citation omitted).39 This term “include[s] all actions of a governmental
Some authorities refer to the exercise of “discretionary authority” as opposed to
“discretionary function,” but there does not appear to be any material difference and
the Court will use them interchangeably. See, e.g., Crocker v. Beatty, 886 F.3d 1132,
1137 (11th Cir. 2018) (discretionary function); Moore v. Pederson, 806 F.3d 1036,
1042 (11th Cir. 2015) (discretionary authority); Maddox v. Stephens, 727 F.3d 1109,
39

49

official that (1) were undertaken pursuant to the performance of his duties, and (2)
were within the scope of his authority.” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.
1994) (quotation and citation omitted). The government official bears the burden of
showing that an act was within the official’s discretionary authority. Holloman, 370
F.3d at 1264. Both prongs of the test are analyzed from a position of generality,
putting aside the fact that the action “may have been committed for an
unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent,
or under constitutionally inappropriate circumstances.” Id. at 1266. For these
purposes, the Court will assume that Chief Graham acted within his discretionary
authority here.
Thus, the burden shifts to the plaintiffs to demonstrate why qualified immunity
should not apply. Id. at 1264. This requires plaintiffs to show “that a reasonable jury
could interpret the evidence in the record as showing that [Chief Graham] violated a
constitutional right that was clearly established at the time of the acts in question.” Id.
at 1267. As explained above in the Establishment Clause analysis, a reasonable jury
could determine from the evidence in the record that Chief Graham violated the
Establishment Clause, thereby satisfying the first prong of the analysis.
The next question is whether that right was “clearly established” at the time,
such that the state of the law gave Chief Graham “fair warning” that his involvement
1120 (11th Cir. 2013) (discretionary authority).
50

in the Prayer Vigil was unconstitutional. Hope v. Pelzner, 536 U.S. 730, 739-41
(2002). It is well established that “prayer is the quintessential religious practice.”
Jaffree, 705 F.2d at 1534. “[B]y definition” all public prayers serve religious purposes.
Jager v. Douglas Cty. Sch. Dist., 862 F.2d 824, 830 (11th Cir. 1989) (citing Jaffree,
705 F.2d at 1534); see also Engel v. Vitale, 370 U.S. 421, 425 (1962) (“[W]e think that
the constitutional prohibition against laws respecting an establishment of religion must
at least mean that in this country it is no part of the business of government to
compose official prayers for any group of the American people to recite as a part of
a religious program carried on by government.”). Additionally, the Supreme Court has
explained that the government “may not promote or affiliate itself with any religious
doctrine or organization.” County of Allegheny, 492 U.S. at 590. The Supreme Court
has further held that government “sponsorship of a religious message is
impermissible because it sends the ancillary message to members of the audience
who are nonadherents ‘that they are outsiders, not full members of the political
community, and an accompanying message to adherents that they are insiders,
favored members of the political community.’” Santa Fe Ind. Sch. Dist., 530 U.S. at
309-10 (quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)). As the Eleventh
Circuit explained ten years before this Prayer Vigil, “[e]ncouraging or facilitating any
prayer clearly fosters and endorses religion over nonreligion, and so runs afoul of the
First Amendment.” Holloman, 370 F.3d at 1288. By these authorities, all of which
51

well-predate the actions here, a reasonable fact-finder could find that it was clearly
established that a government-sponsored prayer vigil would violate the Establishment
Clause. Chief Graham is not protected by qualified immunity and his motion for
summary judgment is therefore due to be denied and the plaintiffs’ motion for
summary judgment as to Chief Graham is due to be granted.
2.

Mayor Kent Guinn

The evidence reveals that Mayor Guinn had nothing to do with planning the
Vigil, promoting it to the community, or participating in it in any official way. He
attended the Prayer Vigil as a citizen. Yet, when the Mayor learned about the
upcoming Prayer Vigil, he wholeheartedly endorsed it, and continued to do so up to
and following the event. This was in the face of many vocal complaints that the Vigil
would and did violate the Establishment Clause. To those citizens and others, he
declared that he would not stop the Vigil. Moreover, both the Mayor and Chief
Graham testified that the Mayor had the authority to tell Chief Graham to take down
the facebook page, but Mayor Guinn refused. Nor did he tell the Chief not to permit
the police chaplains to participate, which the Mayor also said he had the authority to
do. Additionally, the Mayor responded to citizens in a manner that reflected that the
Vigil was a government-sponsored event, repeatedly referencing that “we” are holding
this Vigil and telling one person that “[t]here is nothing in the constitution to prohibit
us from having this Vigil.” Doc. 54-44 (marked Ex. 28) (9/22/2014 10:24 a.m. email
52

from Guinn to citizen, copying Graham) (emphasis added).

To another who

complained about the Chief’s apparent violation of the Establishment Clause, the
Mayor responded that not only would he not stop it, he intended to praise the Chief
for his efforts. Doc. 54-49 (marked Ex. 33) at 3 (9/19/2014 10:55 p.m. email from
Guinn to citizen, copying Graham).
Yet there is not enough evidence to show that the Mayor himself had sufficient
connection to the Prayer Vigil to hold him liable for it. He was certainly an ardent
cheerleader, but a reasonable observer, taking into account the creation, planning,
and execution of the Vigil would find the Mayor was not a part of it. The Mayor did,
however, have authority to direct the Chief to take down the facebook page and to
order that the Chaplains not participate in the Prayer Vigil, but he refused to take
these measures. It is true, as plaintiffs contend, that the failure to intervene to stop
a constitutional violation can itself create liability. But the circumstances in which that
doctrine arises are generally excessive force cases. See Jones v. Cannon, 174 F.3d
1271, 1286 (11th Cir. 1999) (noting that § 1983 liability may arise for failure to
intervene when another officer uses excessive force, but not finding authority to
extend the doctrine to prevent a false affidavit); de Veloz v. Miami-Dade Cty., 255 F.
Supp. 3d 1222, 1233-34 (S.D. Fla. 2017) (finding no Eleventh Circuit or Supreme
Court authority for failure to intervene theory of liability outside of excessive force
context), appeal docketed, No. 17-13059 (11th Cir. Jul. 5, 2017). Based on the facts
53

of this case, the Court would be hard-pressed to hold the Mayor liable for an
Establishment Clause violation based solely on his failure to intervene to prevent it.
Even assuming the Mayor committed an Establishment Clause violation by
failing to intervene to stop the Prayer Vigil, his duty to do so was not clearly
established.40 The Mayor is protected by qualified immunity based on the lack of
authority that would warn the Mayor that he could be liable for failing to intervene to
prevent the Chief’s violation of the Establishment Clause. The Mayor is due to be
granted summary judgment and the plaintiffs’ motion seeking summary judgment as
to the Mayor is due to be denied.41
3.

The City of Ocala

The City contends it is due to be granted summary judgment because there is
no basis to find municipal liability. Although local governments cannot be found liable
on a theory of respondeat superior, in Monell v. Department of Social Services, 436
U.S. 658, 694-95 (1978), the Supreme Court determined they may be held to answer

By so publicly failing to intervene, the Mayor did, in a sense, ratify the Chief’s
actions. The Court has considered whether this alone might subject him to liability but
again finds a lack of authority that would warn the Mayor of this possibility. However,
as noted below, the Mayor’s ratification can certainly be considered in assessing the
City’s liability.
40

This ruling is based on an evidentiary record of undisputed facts (drawing all
reasonable inferences in plaintiffs’ favor), which explains why it differs from the
Court’s ruling on the same question presented by the Mayor’s motion to dismiss,
which considered only the allegations of plaintiffs’ complaint. See Docs. 1, 14, 22.
41

54

when a constitutional tort results “from an official government policy, the actions of an
official fairly deemed to represent government policy, or a custom or practice so
pervasive and well-settled that it assumes the force of law.” Denno v. Sch. Bd. of
Volusia Cty., 218 F.3d 1267, 1276 (11th Cir. 2000) (citing Monell, 436 U.S. at 694).
“[A] municipality may be held liable under 42 U.S.C. § 1983 for a single illegal act
committed by one of its officers . . . [provided that] the challenged act may fairly be
said to represent official policy, such as when that municipal officer possesses final
policymaking authority over the relevant subject matter.” Scala v. City of Winter Park,
116 F.3d 1396, 1397 (11th Cir. 1997); see also Cooper v. Dillon, 403 F.3d 1208, 1222
(11th Cir. 2005) (rejecting argument that city could not be liable based on single
incident of statute’s enforcement).
“Whether an official has final policymaking authority” that may subject the
government to liability “is a question of state law,” Church v. City of Huntsville, 30 F.3d
1332, 1342 (11th Cir. 1994) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123
(1988) (plurality opinion)), which is to be decided by the court as a matter of law. Jett
v. Dallas Ind. Sch. Dist., 491 U.S. 701, 737 (1989). Both Chief Graham and Mayor
Guinn have authority under state law that could subject the City of Ocala to liability,
assuming they were acting within their respective realms of authority at the time; no
party has argued otherwise. See Fla. Const., Art. VIII § 2(b) (establishing
municipalities and their powers, which include conducting a municipal government);
55

Charter, City of Ocala, Fla., Pt. I, Subpt. A, Art. II, § 2.08 (police officers are
responsible to the chief of police who is responsible to the mayor), Pt. I, Subpt. A, Art.
III, § 3.03(b) (mayor shall have charge and control of the police department); Code of
Ordinances, City of Ocala, Fla., Ch. 2, Art. IV, Div. 10, § 2-371 (police chief shall be
elected by city council upon mayor’s recommendation and has supervision over police
officers and support personnel who shall act under his instructions); Guinn Dec. (Doc.
53-1) at ¶¶ 2, 3; City of Ocala and Graham’s Answer (Doc. 38) at ¶ 12 (admitting that
Chief Graham is in charge of day-to-day operations of the Ocala Police Department
including carrying out policy, managing and supervising staff, and ensuring
department activities comply with applicable law); see also Cooper, 403 F.3d at 1222
(explaining that in addition to powers granted by Florida’s constitution and local laws,
“there are other indicia in state law that police chiefs in Florida have final policymaking
authority in their respective municipalities for law enforcement matters”) (citing various
state statutes); Davis v. City of Apopka, No. 17-11706, ___ F. App’x ___, 2018 WL
1750557, *2-3 (11th Cir. Apr. 12, 2018) (holding a Florida city’s police chief was final
policymaker under state and local law) (citing Florida Constitution, city ordinances,
and Cooper, 403 F.3d at 1222).
While the City paints this as a fleeting incident that could not possibly be
deemed official policy so as to subject it to liability, in fact, the events here took place
over the course of eight days, beginning with Chief Graham’s calling the meeting and
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culminating with the Prayer Vigil. During that time and as further described above,
both Chief Graham and Mayor Guinn took many actions in their official roles in very
public ways to initiate, organize, facilitate, promote, encourage, endorse, and
otherwise sponsor the Prayer Vigil (all in the face of vocal opposition which pointed
out the violation), easily subjecting the City of Ocala to liability for violating the
Establishment Clause.42 The City of Ocala’s motion for summary judgment is due to
be denied and the plaintiffs’ motion for summary judgment as to the City of Ocala is
due to be granted.
D.

Plaintiffs’ claim for punitive damages.

Although not pled in their complaint, plaintiffs argue in their summary judgment
motion that they are entitled to seek punitive damages. See Doc. 54 at 33-35. Chief
Graham objects.43 See Doc. 68 at 24-25.
The cases upon which plaintiffs rely for permitting a punitive damages claim to
go forward without a specific request are distinguishable. In Scutieri v. Paige, 808

Even though the Mayor is protected by qualified immunity and he therefore
cannot be held liable in his individual capacity, his conduct as Mayor (as well as Chief
Graham’s) is relevant in determining the City’s liability.
42

Punitive damages are not available against a municipality under 42 U.S.C. § 1983
(and plaintiffs do not contend otherwise). See City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 271 (1981). The Mayor did not address the punitive damages issue in
his opposition brief. However, as the Court is granting his motion for summary
judgment, his lack of opposition is of no moment. Thus, this issue pertains only to
Chief Graham.
43

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F.2d 785 (11th Cir. 1987), the Eleventh Circuit determined the jury should have been
given a requested instruction on punitive damages despite plaintiffs’ failure to include
punitive damages in their complaint’s request for judgment because the complaint (a
civil wiretapping case with egregious facts) alleged defendants acted “intentionally
and maliciously, wantonly, willfully, in bad faith, with gross and reckless disregard” for
plaintiffs’ rights, and further alleged that defendants’ conduct “was so flagrant and
wanton as to justify an award of punitive damages.” 808 F.2d at 791 n.2. The
plaintiffs’ prayer for relief included a request for statutory damages and the statute at
issue provided for punitive damages. Id. at 791. Additionally, the defendants had
listed plaintiffs’ entitlement to punitive damages as an issue to be decided in the case
and they did not object when plaintiffs included it in their pretrial stipulation. Id. at
791-92. Also, the plaintiffs had unsuccessfully sought leave to amend their complaint
before trial to add a punitive damages claim to their ad damnum clause. Id. at 791.
In Guillen v. Kuykendall, 470 F.2d 745 (5th Cir. 1972), the plaintiff’s complaint (which
alleged the defendant shot the plaintiff) alleged “malice and unwarranted excessive
actions,” which was sufficient to permit the jury to consider exemplary damages under
Texas law. 470 F.2d at 748.
Here, in contrast with both of those cases, the only allegation in plaintiffs’
complaint that could even possibly support a punitive damages request is the single
sentence, “Each of the individual Defendants, in their individual capacities,
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intentionally or recklessly violated Plaintiffs’ well-settled constitutional rights under the
Establishment Clause.” Complaint (Doc. 1) at ¶ 47. The paragraphs of allegations
detailing defendants’ actual conduct do not make hint of any particular egregiousness.
And plaintiffs’ request for relief was specific, asking for declaratory judgment and a
permanent injunction (both described in very detailed terms), nominal damages,
attorneys’ fees, expenses and costs, and “such other relief as this Court deems just
and proper.” Id. at ¶¶ 50-51. The single conclusory statement referencing an
intentional and reckless violation is not enough to put Chief Graham on notice and the
Court finds it is insufficient to support raising a punitive damages claim at this late
stage.44 See Cioffe v. Morris, 676 F.2d 539, 541-42 (11th Cir. 1982) (explaining that
an unpled issue may be tried only with consent of the opposing party).
V.

Conclusion
The Court is granting the Mayor’s motion for summary judgment and denying

plaintiffs’ cross-motion. The Court is denying Chief Graham and the City’s motion for
Plaintiffs did not move for leave to amend their complaint, and the deadline to
seek such leave passed five months before plaintiffs first mentioned punitive damages
in their summary judgment motion. Any request for leave to amend to add a punitive
damages claim at this point would have to be supported by a showing of good cause
under Federal Rule of Civil Procedure 16(b)(4). Plaintiffs have not even suggested
what that might be and, as the facts which plaintiffs now argue would support such a
claim have largely been known since before they filed suit, it is unlikely they could
show good cause for the untimely request. See Factory Direct Tires Inc. v. Cooper
Tire & Rubber Co., No. 3:11-cv-255-RV/EMT, 2013 WL 12099993 (N.D. Fla. Sept. 23,
2013) (distinguishing Scutieri and denying request for leave to amend complaint to
add punitive damages).
44

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summary judgment and granting plaintiffs’ cross-motion as to the Chief and the City.
In so doing, the Court considered whether it should instead deny plaintiffs’ motion for
summary judgment as to the Chief and the City and conduct a non-jury trial (no
remaining party requested a jury trial). However, the Court determined that holding
a non-jury trial was not required: based on the undisputed facts, plaintiffs have
demonstrated as a matter of law that the Chief and the City of Ocala violated the
Establishment Clause.
In sum, under the Establishment Clause of the First Amendment to the United
States Constitution, the government cannot initiate, organize, sponsor, or conduct a
community prayer vigil. That is what happened here. Yet, the same event in private
hands would be protected by the First Amendment. See Bd. of Ed. of Westside
Comm. Schs. v. Mergens, 496 U.S. 226, 250 (1990) (opinion of O’Connor, J.)
(“[T]here is a crucial difference between government speech endorsing religion, which
the Establishment Clause forbids, and private speech endorsing religion, which the
Free Speech and Free Exercise Clauses protect.” ) (emphasis in original). In this
way, the rights of all citizens– religious and non-religious– are preserved.

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Accordingly, it is hereby
ORDERED:
1.

Defendant Mayor Kent Guinn’s Motion for Summary Judgment (Doc. 53)

is GRANTED.
2.

The City of Ocala and Chief Greg Graham’s Motion for Summary

Judgment (Doc. 52) is DENIED.
3.

Plaintiffs’ Motion for Summary Judgment (Doc. 54) is DENIED as to their

claim against Mayor Kent Guinn and is GRANTED as to their claims against the City
of Ocala and Chief Greg Graham.
4.

The Court will award each plaintiff one dollar ($1.00) in nominal damages

from each of the two liable defendants (for a total nominal damages award of six
dollars ($6.00)), which sums will be included in the Court’s final judgment.
5.

As the prevailing parties, the Court will also be entering an award of

attorneys’ fees and costs in plaintiffs’ favor under 42 U.S.C. § 1988.45 No later than
June 25, 2018, plaintiffs shall file a motion for attorneys’ fees and costs. Assuming

Although he has also prevailed in this litigation, defendant Mayor Kent Guinn is
not entitled to recover his attorneys’ fees and costs because a prevailing defendant
may only recover fees in a civil rights case under 42 U.S.C. § 1983 if the case was
“groundless, . . . frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith.” Christiansburg Garment Co. v. Equal Emp’t
Opportunity Comm’n, 434 U.S. 412, 421 (1978); see also Fox v. Vice, 563 U.S. 826,
833 (2011) (explaining that defendants are protected against “burdensome litigation
having no legal or factual basis”). That is not the case here.
45

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they oppose the motion, no later than July 20, 2018, the City of Ocala and Chief
Graham shall file their response. The Court hereby refers the attorneys’ fees and
costs motion to the Magistrate Judge for a Report and Recommendation.
6.

The Clerk is directed to withhold entry of judgment as to any party until

the Court has resolved plaintiffs’ request for attorneys’ fees and costs.
DONE AND ORDERED at Jacksonville, Florida this 24th day of May, 2018.

s.
Copies:
Honorable Philip R. Lammens
United States Magistrate Judge
counsel of record

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