Mattia v. City of Center Line et al
Filing
26
OPINION AND ORDER Granting 6 Motion for Preliminary Injunction. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL MATTIA,
Plaintiff,
Case Number 17-11169
Honorable David M. Lawson
v.
CITY OF CENTER LINE, MICHIGAN,
DENNIS CHAMPINE, in his official
capacity, and WILLIAM DEMPSEY, in
his official and individual capacity,
Defendants.
____________________________________/
OPINION AND ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Michael Mattia, a professed Christian who believes that abortion is wrong and
violates the tenets of his religion, likes to share his opinions publically by displaying large signs at
busy intersections depicting aborted fetuses. On one of these occasions, police officers for the City
of Center Line ordered Mattia to desist displaying his sign and threatened to arrest him (he says) for
breach of the peace if he didn’t. Mattia complied, but then filed the present lawsuit alleging a
violation of his First Amendment right to speak freely in a public forum. He now seeks a
preliminary injunction allowing his activity. Mattia has demonstrated a likelihood of success on the
merits of his claim, and because the other factors favor an injunction, the Court will grant the
motion.
I.
The facts of the case are taken from the verified complaint and the motion papers, which
include several declarations. Mattia alleges that he is a Christian who believes that terminating a
pregnancy at any stage is the wrongful killing of an innocent person. He seeks to share with the
public his religiously-based beliefs about abortion. His preferred method of communication is using
handheld signs on public sidewalks next to well-traveled streets. Mattia believes that in order
accurately to convey his message about abortion, he must illustrate the physical consequences of the
abortion procedure itself. Consequently, the signs frequently include pictures of aborted fetuses.
Mattia also includes his phone number on the sign to invite discussion about his views.
Mattia does not seek a crowd when he carries his sign, and he believes that a crowd is not
likely to form. He says that he does not obstruct access to public sidewalks or prevent others from
passing. His display does not obscure traffic signs or signals or otherwise interfere with the vision
of drivers. He does not solicit in any way or advocate for violence against abortion providers or
supporters.
Mattia has engaged in this type of expression for almost two decades, primarily in Michigan.
He carries his sign four or five days a week and for two to four hours a day. He occasionally has
interacted with police about his signs, but the police have never prohibited him from displaying his
message.
In July 2016, Mattia moved his residence to Center Line, Michigan. He continued to carry
his signs pertaining to abortion on an almost daily basis. One of his preferred display locations was
a public sidewalk just south of Freeway I-696 in Center Line, where he held signs with images of
aborted fetuses. He did so without incident.
At around 5:00 p.m. on August 26, 2016, Mattia carried his sign on a public sidewalk at or
near the intersection of East Ten Mile Road and Van Dyke Avenue in Center Line. He chose that
location because of the significant vehicular traffic passing through downtown Center Line. His sign
included a picture of an aborted fetus as the backdrop on each side. Superimposed on the images
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were the words “Abortion: God Forgives and Heals,” and on the flip side, “God Forgives, Heals
Abortion,” “Women Do Regret Abortion,” and “Men Regret Lost Fatherhood.” The side with more
text obscured more of the picture than the other side with just one phrase.
Mattia held the sign at chest level as he walked on the sidewalks adjacent to Ten Mile Road
and Van Dyke. He flipped the sign around frequently so both sides were visible to those passing
through the intersection. He says that he remained entirely on the sidewalk with his sign at all times
without obscuring the visibility of traffic signs or signals. Soon after Mattia’s arrival, an
unidentified female approached Mattia at the intersection. She stood about five to seven feet away
from him and held a sign stating something along the lines of “Don’t listen to this guy,” with an
arrow pointing towards Mattia. Neither party tried to interfere with the other’s expression, and the
interaction was peaceful at all times. Mattia remained at this intersection for approximately one
hour without disturbance. He did not notice any drivers experiencing difficulty passing through the
intersection.
At around 6:00 p.m., Center Line police sergeant William Dempsey and Officer Andy Percha
approached Mattia.
Dempsey ordered Mattia to provide his driver’s license and personal
information. After reviewing Mattia’s information, Dempsey told Mattia that he may not continue
to display his sign, referencing complaints Dempsey had received about the messaging. Based on
prior interactions with police officers, Mattia asserted his constitutional right to carry his sign.
Dempsey replied that the First Amendment did not apply in this situation and proceeded to his police
car to make a phone call. Officer Percha remained with Mattia during the phone call and prohibited
him from displaying his sign.
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Approximately 20 minutes later, Dempsey informed Mattia that he had discussed the sign
issue with his superiors and that Mattia needed to leave the intersection, taking his sign with him.
Mattia reiterated that he had a First Amendment right to display a sign in public even if someone
takes offense at the message, but Dempsey disagreed. Dempsey explained that a sign with mere text
would be within Mattia’s right. Dempsey concluded that the sign containing an image of an aborted
fetus is not constitutionally protected because it is “so shocking.” He informed Mattia that a simple
drawing that was not as “vile” or “grotesque” would be permitted, but because people had called and
complained about Mattia’s sign, it was not covered by the First Amendment. Dempsey added that
Mattia’s activity violated the law for disturbing the peace, having verified the matter with his
superiors.
Mattia believed that the sergeant was mistaken. He referenced his prior interactions with law
enforcement regarding his signs and their acknowledgment of his constitutional right to use that
particular sign. He also mentioned legal precedent upholding his activity. Dempsey reiterated that
Mattia was disturbing the peace and that he would have to move on. Mattia asked how he could
cause a disturbance without interfering with pedestrian or vehicular traffic. Dempsey then reminded
Mattia that because people had called the police to complain about his sign, Mattia had disturbed
the peace on a “psychological” level. Dempsey told Mattia to forget about his First Amendment
right because his activity was causing a disturbance in violation of the ordinance. Dempsey did not
specifically cite any ordinance Mattia was allegedly violating. When Mattia asked to see the
ordinance, Dempsey referred Mattia to a website containing city ordinances, advising him to look
it up. Mattia then asked about the consequences he would suffer if he continued to carry his sign.
Dempsey warned that he would be criminally cited or arrested for violating the breach of the peace
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ordinance. Believing he could not convey his message without his sign and fearing arrest, Mattia
left the intersection around 6:30 p.m. He has not displayed a sign on a public sidewalk in Center
Line since that day.
Per Sgt. Dempsey’s suggestion, Mattia subsequently researched the breach of the peace
ordinance online and discovered Center Line ordinance section 46-146 (Breach of Peace), which
states, “Any person who shall make or assist in making any noise, disturbance, trouble or improper
diversion, or any rout or riot, by which the peace and good order of the city are disturbed, shall be
guilty of a breach of the peace, and disorderly conduct.” Because Mattia was troubled by the
ordinance’s application to his sign use, he went to city hall to ask city manager Dennis Champine
about its application to his activity. Mattia requested a meeting with Champine, who met him in the
lobby and ushered Mattia into a nearby conference room. Champine then informed Mattia that he
had spoken with Sgt. Dempsey about the matter and subsequently handed Mattia a copy of
ordinance section 46-146. Champine identified that ordinance as applicable to Mattia’s sign use.
Mattia explained that he was already familiar with the ordinance, but did not believe it should apply
to his sign. Champine acknowledged that the language in the ordinance is subjective, but informed
Mattia that he would need to cite case law supporting his constitutional claim before Champine
could instruct the police department to refrain from enforcing it against Mattia. Champine
additionally noted that responding to complaints about Mattia’s sign display imposes a financial
burden on the city.
Thereafter, Mattia, through counsel, sent a letter dated September 14, 2016 to Champine and
the Center Line director of public safety, which included references to case law explaining why the
ban on Mattia’s sign use and the application of section 46-146 is unconstitutional. The city replied
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through its attorney by letter dated October 20, 2016, reiterating that Mattia will not be allowed to
display his sign on any public sidewalk in the city. The letter did not address Mattia’s concern about
the application of section 46-146 to his sign use. Instead, the city cited various sections of Center
Line ordinance section 1510 to support banning Mattia’s signs. The letter included the following
prohibitive language of section 1510:
(3)(f) No signs or billboards on any street corner which would obscure the vision
of drivers using said streets, or conflict with the traffic-control signals at the
intersection of any street.
(3)(k) Signs and billboards shall be expressly prohibited from all public rights-ofway and dedicated public easements.
(4)(o) Any sign that would project into any public right-of-way or other accessway.
(4)(r) Sidewalk signs.
Moreover, the letter stated that this section, construed and read together, “prohibits all signs,
notwithstanding the content, displayed on any street corner, public right-of-way or sidewalk”
(emphasis in letter). On that basis, the city concluded that Mattia’s display of his sign on the public
sidewalk is prohibited by ordinance section 1510.
Mattia believed the threat of criminal consequences remained and that the letter
unequivocally informed him that the city would apply section 1510 to ban his desired future sign
use. Moreover, the additional application of section 1510 banned Mattia’s signs with images of
aborted fetuses as well as his signs with mere text. Mattia says he now fears criminal sanction if he
attempts to display his sign with images or any other sign conveying an abortion message on any
public sidewalk.
He believes the complete ban on his sign use restricts and deters his
constitutionally-protected expression in traditional public fora and constitutes irreparable harm to
him. Mattia also maintains that he has seen people regularly displaying signs on public sidewalks
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in Center Line. He noted that he saw someone on the sidewalk holding a sign advertising for Liberty
Tax Services after he was banned from holding his sign.
Mattia filed the present action on April 13, 2017 under 42 U.S.C. §§ 1983 and 1988, alleging
violations of the First and Fourteenth Amendments. He challenges Center Line ordinance section
46-146 as applied to his conduct and Center Line ordinance section 1510 on its face and as applied.
On April 24, 2017, Matttia filed a motion for a preliminary injunction. After the City responded,
the Court heard oral argument on August 31, 2017.
II.
As an initial matter, the defendants contend that the plaintiff lacks standing to raise his
claims because he has not suffered an injury in fact. They also argue that the plaintiff’s challenge
to ordinance 46-146 is moot because the defendants agreed to cease enforcement against the
plaintiff. In addition, the defendants also contend that city manger Champine and Sgt. Dempsey are
entitled to qualified immunity.
A.
The qualified immunity argument is easily dispatched at this stage of the proceedings. The
doctrine of “[q]ualified immunity shields government officials from monetary damages, not from
injunctive relief. Ward v. Polite, 667 F.3d 727, 742 (6th Cir. 2012). Because the plaintiff seeks
injunctive relief in the present motion, the defendants’ defense of qualified immunity is wholly
inapplicable.
B.
The defendants’ standing argument requires a bit more discussion. Standing is required in
order to confer subject matter jurisdiction upon federal courts under Article III of the Constitution.
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It is “the threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490, 498 (1975). The
Supreme Court has stated that the standing requirement “limits federal court jurisdiction to actual
controversies so that the judicial process is not transformed into ‘a vehicle for the vindication of the
value interests of concerned bystanders.’” Coal Operators & Assocs., Inc. v. Babbitt, 291 F.3d 912,
915-16 (6th Cir. 2002) (quoting Valley Forge Christian College v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 473 (1982)).
One of the three components necessary to establish standing to sue under Article III is the
demonstration of an injury in fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (stating
that a plaintiff also must show that the injury is “traceable” to the defendant’s conduct, and the
injury likely will be “redressed by a favorable judicial decision”). “To establish injury in fact, a
plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo,
Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560). “For an
injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Ibid.
“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Ibid.
The injury Mattia identifies is the deprivation of his right to speak freely in a public place.
That right was abridged, he says, when Sgt. Dempsey told him to terminate his sign-displaying
activity, and confirmed when he received a letter from city manager Champine telling him that he
would not be allowed to display his sign on any public sidewalk in the city. The defendants argue
that Mattia suffered no injury because he ceased displaying his sign voluntarily, and there is no
threat of pending prosecution.
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Certainly, the First Amendment “offers sweeping protection [to] all manner of speech,” even
loathsome, “distasteful and highly offensive” speech. Bible Believers v. Wayne Cty., Mich., 805
F.3d 228, 243 (6th Cir. 2015) (citing Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 4344 (1977) (recognizing First Amendment rights of Neo Nazis seeking to march with swastikas and
to distribute racist and anti-Semitic propaganda in a predominantly Jewish community)). When that
right is abridged, an injury occurs, even when there are no actual damages. See Marohnic v. Walker,
800 F.2d 613 (6th Cir. 1986) (holding that a plaintiff need not show actual injury to establish First
Amendment violation); Walje v. City of Winchester, Kentucky, 773 F.2d 729, 732 (6th Cir. 1985)
(same).
Mattia alleges that Sgt. Dempsey told him that if he did not quit displaying his sign, he would
be cited for a violation of the ordinance and arrested. Dempsey disputes that assertion, stating in
his affidavit that Mattia was not threatened with arrest. Leaving that aside, however, Mattia plainly
was told by Champine and the city attorney that displaying his sign on any public sidewalk in Center
Line violated city ordinances. And Mattia has expressed an intention to continue his anti-abortion
messaging activity, even in the face of the prohibitive interpretation the city attorney declared in his
letter.
A plaintiff establishes an injury-in-fact “when he alleges ‘an intention to engage in a course
of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.’” Kiser v. Reitz, 765 F.3d 601, 608 (6th Cir. 2014)
(quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). A threat of
prosecution may be inferred where “a plaintiff has engaged in a course of conduct and the state has
instructed him to stop or face disciplinary action.” Ibid. There can be little doubt that Mattia intends
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to persist in his activity, as he has in the past. In that context, the Court “may infer a threat of
prosecution that is neither ‘chimerical,’ nor ‘imaginary or wholly speculative.’” Ibid. (quoting
Steffel v. Thompson, 415 U.S. 452, 459 (1974), and Babbitt, 442 U.S. at 302)
The defendants rely on two cases to support the argument that the plaintiff alleges merely
speculative injury. The first, Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602 (6th Cir. 2014),
applies, they say, because Mattia supposedly chose voluntarily to stop displaying his sign. In
Morrison, the plaintiffs sought to invalidate a school’s anti-harassment policies on the basis that the
policies prevented students from expressing their religious views on homosexuality. Id. at 607. The
Sixth Circuit held that the plaintiffs failed to show injury in fact because “the record [was] silent as
to whether the school district threatened to punish or would have punished Morrison for protected
speech in violation of its policy.” Id. at 610. Instead, the court concluded that “Morrison’s choice
to chill his own speech based on his perception that he would be disciplined for speaking” did not
give him standing to challenge the policy. Ibid.
The defendants fail to appreciate a key difference between Morrison’s facts and those here.
Unlike in Morrison, the record in this case supports a threat of prosecution. Although the plaintiff’s
and Dempsey’s accounts differ on a threatened arrest for violation of ordinance section 46-146,
Dempsey plainly ordered Mattia to desist engaging in conduct Mattia insists was protected by the
First Amendment. And as noted earlier, the city’s letter to the plaintiff unequivocally informs him
that further display of his sign is prohibited by ordinance section 1510. The plaintiff says that he
has not engaged in similar speech since receiving the letter because he fears enforcement. Those
facts align this case more directly with Kiser v. Reitz than with Morrison.
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The defendants also cite American Civil Liberties Union v. Nat’l Security Agency, 493 F.3d
644 (6th Cir. 2007). There, the Sixth Circuit held that the attorney-plaintiffs failed to allege an
injury in fact because their fear was merely speculative that the NSA may intercept their privileged
communications with overseas clients. Id. at 662. The injury alleged — chilling of First
Amendment rights — did not derive from some form of direct government enforcement or
regulation. Ibid. The plaintiffs could not show “something more” than subjective apprehension that
the communications would be intercepted and that such interception would be detrimental to their
clients. Id. at 664.
That case does not help the defendants. Mattia has shown something more than subjective
apprehension of enforcement. The defendants insist that the plaintiff has never been threatened with
enforcement of either ordinance. But the city sent Mattia a letter expressly prohibiting the display
of his sign. Unlike the plaintiffs in American Civil Liberties Union, the plaintiff has demonstrated
a clear threat of enforcement. The plaintiff has established an injury in fact.
C.
The defendants also briefly argue that the plaintiff’s challenge to Center Line ordinance
section 46-146 is moot. That argument is based on a telephone call on April 21, 2017, in which the
defendants’ attorney allegedly informed the plaintiff’s attorney that the city would not enforce
section 46-146 against the plaintiff. The defendants argue that conversation moots the plaintiff’s
as-applied challenge to section 46-146. Not so.
“[A] defendant claiming that its voluntary compliance moots a case bears the formidable
burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably
be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.(TOC), Inc., 528 U.S. 167,
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190 (2000) (citing United States v. Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203
(1968)). Moreover, “[i]t is well settled that a defendant’s voluntary cessation of a challenged
practice does not deprive a federal court of its power to determine the legality of the practice.” Id.
at 189 (internal quotations omitted). If that were the case, the defendants would be free to resume
their wrongful conduct. Ibid. (citations omitted).
The parties here offer conflicting accounts of whether the defendants agreed to cease
enforcement of Center Line ordinance section 46-146 against the plaintiff. The defendants contend
that the April 21, 2017 telephone promise, coupled with the lack of enforcement so far, satisfies their
burden. The plaintiff argues that the defendants’ attorney made no unequivocal promise. The
plaintiff concedes that at some point during their communications, the defendants were willing to
refrain from enforcing section 46-146. But that conversation did not extend to ordinance section
1510, which the defendants insisted would be applied against the plaintiff. The plaintiff understood
the defendants’ position as a temporary hiatus in enforcing section 46-146. The controversy over
the plaintiff’s right to display his sign has not been resolved, and the issues raised in the motion for
a preliminary injunction are still live.
III.
The criteria for obtaining a preliminary injunction are well known and undisputed by the
parties. The relevant factors are whether (1) the moving party has demonstrated a substantial
likelihood of success on the merits; (2) the moving party will suffer irreparable injury without the
injunction; (3) the preliminary injunction will cause substantial harm to others; and (4) the public
interest will be served if the injunction issues. Bays v. City of Fairborn, 668 F.3d 814, 818-19 (6th
Cir. 2012) (citing Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535,
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542 (6th Cir. 2007)). Although these factors are to be balanced, the failure to show a likelihood of
success on the merits is generally fatal. Ibid.; see also Gonzales v. Nat'l Bd. of Med. Exam’rs, 225
F.3d 620, 625 (6th Cir. 2000). Moreover, “in a First Amendment case, the crucial inquiry is usually
whether the plaintiff has demonstrated a likelihood of success on the merits. This is so because
. . . the issues of the public interest and harm to the respective parties largely depend on the
constitutionality of the statute.” Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir.
2007) (citations and quotation marks omitted).
The plaintiff has the burden of proof, and that burden is the same irrespective of whether the
relief sought is mandatory or prohibitive. United Food & Commercial Workers Union, Local 1099
v. Southwest Ohio Regional Transit Auth., 163 F.3d 341, 348 (6th Cir.1998). Rule 65 of the Federal
Rules of Civil Procedure authorizes the issuance of preliminary injunctions when appropriate. It is
appropriate here.
A.
Mattia argues that Center Line ordinance section 46-146 is unconstitutional as applied to
him, and section 1510 is unconstitutional both on its face and as-applied against him. At this stage
of the case, he does not have to “prove his case in full.” Certified Restoration Dry Cleaning
Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007). “[I]t is ordinarily sufficient if
the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful
as to make them a fair ground for litigation and thus for more deliberate investigation.” Six Clinics
Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997) (citing In re DeLorean
Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)).
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Mattia asserts rights under both the First and Fourteenth Amendments. His First Amendment
claim based on the Free Speech Clause is persuasive enough that the Court need not address his
Fourteenth Amendment argument.
The Sixth Circuit has adopted a three-part inquiry to address free speech claims. “[F]irst,
we determine whether the speech at issue is afforded constitutional protection; second, we examine
the nature of the forum where the speech was made; and third, we assess whether the government's
action in shutting off the speech was legitimate, in light of the applicable standard of review.” Bible
Believers, 805 F.3d at 242 (citations omitted).
There is no dispute here on the first two parts of the test. The parties agree that Mattia’s
expression about abortion, by use of his graphic signage, is protected speech. See id. at 243 (noting
that “expressive behavior that is deemed distasteful and highly offensive to the vast majority of
people . . . most often needs protection under the First Amendment”). The parties also agree that
sidewalks (including the sidewalk where Sgt. Dempsey confronted Mattia) “are among those areas
of public property that traditionally have been held open to the public for expressive activities and
are clearly within those areas of public property that may be considered, generally without further
inquiry, to be public forum property.” United States v. Grace, 461 U.S. 171, 179 (1983).
The parties have focused their dispute on the third element. The defendants insist that they
lawfully may prohibit Mattia’s activity on the sidewalks within the city because the ordinances are
content-neutral means of promoting safety and aesthetics. Both of those goals, they argue
(correctly), have been recognized as legitimate government interests. See Metromedia, Inc. v. City
of San Diego, 453 U.S. 490, 507-08 (1981).
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First Amendment jurisprudence generally recognizes two types of speech restrictions in a
public forum: content-based restrictions; and content-neutral restrictions based on time, place, and
manner. A government entity seeking to justify content-based speech restrictions has a steep hill
to climb. “[I]t must show that its regulation is necessary to serve a compelling state interest and that
it is narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460
U.S. 37, 45 (1983). The stringency of that standard has prompted the Sixth Circuit to observe that
“content-based restrictions on constitutionally protected speech are anathema to the First
Amendment and are deemed ‘presumptively invalid.’” Bible Believers, 805 F.3d at 248 (quoting
Ysura v. Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009)).
Content-neutral regulations of the time, place, and manner of expression are permitted if they
are “narrowly tailored to serve a significant government interest, and leave open ample alternative
channels of communication.” Perry, 460 U.S. at 45. To satisfy narrow tailoring, the regulation must
not “burden substantially more speech than is necessary to further the government's legitimate
interests.” Ward v. Rock Against Racism, 491 U.S. 799, 800 (1989). Even if the regulation is not
the least restrictive alternative, it still may be upheld as valid “[s]o long as the means chosen are not
substantially broader than necessary to achieve the government’s interest.” Id. at 781. However, the
government additionally must demonstrate that ample alternative channels of communication remain
open. This requirement is not met “‘if the speaker is not permitted to reach the intended audience.’”
Saieg v. City of Dearborn, 641 F.3d 727, 740 (6th Cir. 2011) (quoting Bay Area Peace Navy v.
United States, 914 F.2d 1224, 1229 (9th Cir. 1990)). Nonetheless, “speakers are not entitled to their
best means of communication.’” Ibid. (internal quotations omitted).
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With these guidelines in mind, the Court turns to each of the two ordinances challenged in
this lawsuit.
1.
First, section 46-146. That states: “Any person who shall make or assist in making any
noise, disturbance, trouble or improper diversion, or any rout or riot, by which the peace and good
order of the city are disturbed, shall be guilty of a breach of the peace, and disorderly conduct.”
The plaintiff argues that the defendants impermissibly applied this section against him based
on the content of his sign. In his verified complaint and supporting affidavit, Mattia contends that
Sgt. Dempsey told him that the police had received complaints about his sign. According to Mattia,
Dempsey explained that a sign with text and without a picture of an aborted fetus would be
permissible. Dempsey described his sign as “so shocking” that it is not given constitutional
protection. And Dempsey concluded, says Mattia, that his sign was disturbing the peace by
inspiring calls to the police, declaring that the sign was disturbing on a “psychological level.” The
plaintiff also says that Dempsey told him that a drawing not as “vile” or “grotesque” as the image
on the plaintiff’s sign would be allowed. When Mattia asked Dempsey if he could see the ordinance
he was violating, Dempsey referred him to a website containing city ordinances. Mattia later
understood the ordinance in question to be section 46-146, which prohibited breaches of peace, and
that understanding was confirmed by city manager Champine during their meeting.
The defendants offered rebuttal affidavits from both Dempsey and city manager Champine.
Dempsey wrote that the city received complaints about the sign, but at the time, he did not know the
substance of those calls. He said that upon arrival at the intersection, it was “clear” that the
plaintiff’s sign was causing traffic flow and traffic safety issues, although he did not elaborate. He
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admitted to feeling concerned about breach of peace. Champine averred that he understood the issue
with the plaintiff’s sign to be about traffic safety at the intersection. Neither affidavit points to
specific incidents of traffic issues from that day stemming from the plaintiff’s activity. Dempsey
offered a brief and conclusory account of what happened, but that is insufficient to contradict the
plaintiff’s assertion that he was stopped because of what was on his sign.
In his reply, the plaintiff furnished a short video that captures the exchange between the
plaintiff and Sgt. Dempsey on August 26, 2016. The plaintiff shot the video on his cell phone. The
video corroborates Mattia’s account of what happened and calls Dempsey’s credibility into question.
Although at times the sound is muffled by wind, it is clear from the recording that Dempsey did use
the words “so shocking,” “vile,” and “grotesque” with respect to the plaintiff’s sign. When the
plaintiff asked how he was disturbing the peace, Dempsey simply responded that people were calling
and complaining. Dempsey did not identify any specific traffic issues. Moreover, the intersection
and flow of traffic is visible on the video, and it does not appear that there were any traffic issues
at the time of recording.
Based on the evidence presented by both sides, it is difficult to identify the defendants’
prohibition against the plaintiff’s sign display as anything but a content-based restriction. The
defendants argue that the text of section 46-146 is content-neutral. They argue that the ordinance
was adopted with a content-neutral purpose and that it is supported by a significant government
interest in public safety. But here, that is largely beside the point. As in Bible Believers, where the
police enforced a similar ordinance against an evangelical Christian group whose offensive antiIslamic demonstration was cut off at a festival celebrating Arab culture, it was “irrelevant whether
the [police’s plan was] content-neutral because the officers enforcing it [were] ordained with broad
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discretion to determine, based on listener reaction, that a particular expressive activity [was] creating
a public danger.” Bible Believers, 805 F.3d at 247. The court found “[i]t . . . indisputable that the
[police] acted against the Bible Believers in response to the crowd’s negative reaction. Ibid. Such
is the case here.
It is quite obvious that the Center Line police enforced section 46-146 against Mattia based
on viewer reaction. The ordinance does not define what amounts to a disturbance, trouble, or
improper diversion. And the record indicates that Dempsey could not point to any identified
disturbance other than the complaints received. He emphasized that the shocking content of the
plaintiff’s sign motivated the calls, and that amounted to disturbing the peace. As the Sixth Circuit
noted in Bible Believers, this type of “heckler’s veto is precisely that type of odious viewpoint
discrimination” the First Amendment safeguards against. 805 F.3d at 248 (citations omitted).
Because content-based restrictions are “presumptively invalid,” ibid., the plaintiff has shown a
strong likelihood of success on the merits of this claim.
2.
The plaintiff mounts both a facial and as-applied First Amendment challenge to section 1510.
A facial challenge presents the plaintiff with a formidable task. It is “a remedy that courts employ
‘sparingly and only as a last resort.’” Fieger v. Michigan Supreme Court, 553 F.3d 955, 960 (6th
Cir. 2009) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). But because the plaintiff
can demonstrate a likelihood of success on his as-applied argument, the court need not address the
ordinance’s facial invalidity in the present motion.
Mattia acknowledges that the text of section 1510 is content-neutral. He insists, however,
that the ordinance is unconstitutional as applied to him because it is not narrowly tailored to serve
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a substantial government interest (it necessarily overburdens free speech by banning all sidewalk
signs), and the ordinance fails to leave open ample alternative channels of communication. The
defendants contend that the restriction is justified because the driver distractions that sidewalk signs
create are a threat to public safety.
The problem with the defendants’ argument is illustrated by the city attorney’s letter where
he interpreted the several subsections of ordinance 1510, read together, to mean that the law
“prohibits all signs, not withstanding the content, displayed on any street corner, public right-of-way
or sidewalk” (emphasis in letter). Considering that public sidewalks are traditional public fora, that
restriction is manifestly overinclusive: it burdens substantially more speech than necessary. Ward,
491 U.S. at 800. It is not difficult to imagine a narrower interpretation that would allow the display
of a protest sign, but would restrict the sign’s size, or limit display within a certain distance from the
intersection, or even curtail some of the activity during rush hour on the city’s main streets. But
none of that was even suggested by the city’s letter, which enforced section 1510 as “strong
medicine,” Broadrick, 413 U.S. at 613, that “le[ft] nothing standing,” Warshak v. United States, 532
F.3d 521, 528 (6th Cir. 2008) (en banc) (discussing a facial challenge).
As noted above, the city has identified legitimate governmental interests for its restrictions:
traffic safety and aesthetics. But even if the ordinance were narrowly tailored to achieve those ends,
the record undermines the defendants’ asserted justifications. They offer only a conclusory
argument that a sign like the plaintiff’s causes traffic issues; they have not shown that the plaintiff’s
sign actually caused traffic issues. Sgt. Dempsey averred in his affidavit that it was “clear” at the
intersection that the plaintiff’s sign was interfering with traffic. But in the plaintiff’s video, it is not
apparent that there are any traffic issues, nor did Dempsey refer to anything specific.
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The defendants rely on Frye v. Kansas City Missouri Police Dep’t, 375 F.3d 785, 788 (8th
Cir. 2004), but that does not help them, because there, unlike here, the police observed actual traffic
issues caused by the anti-abortion demonstration. “All of the motorists complained that viewing the
graphic photographs had impaired their ability to ‘safely and properly control their vehicles.’” Ibid.
And in that case, the police asked the demonstrators to relocate rather than modify their signs, which
the court found to be “reasonable restrictions on the location of the signs in order to protect public
safety.” Id. at 790. There is no evidence from motorists on this record. And Dempsey not only
failed to identify actual traffic issues, but also suggested that the plaintiff change the content of his
sign to comply with an ordinance — presumably the breach of peace ordinance. And then the city’s
letter imposed a total ban on sign displays on all city sidewalks under section 1510. Even though
a court need not determine the availability of alternative channels of communication when the
content-neutral restriction is overbroad, Saieg, 641 F.3d at 740 (“The requirements for a time, place,
and manner restriction are conjunctive.”), a complete ban on sidewalk signs cannot be said to leave
open any alternative channels of communication. Mattia has demonstrated the likelihood of success
on his as-applied challenge to section 1510 because of the breadth of the ordinance and its panoptic
muffling effect.
B.
According to the Sixth Circuit, “‘despite the overall flexibility of the test for preliminary
injunctive relief, and the discretion vested in the district court, equity has traditionally required a
showing of irreparable harm before an interlocutory injunction may be issued.’” Nat’l Viatical, Inc.
v. Universal Settlements Int’l, Inc., 716 F.3d 952, 957 (6th Cir. 2013) (internal marks omitted)
(quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 103 (6th Cir. 1982)). Even
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with that prescription, the Supreme Court has declared that “[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod
v. Burns, 427 U.S. 347, 373 (1976)).
The plaintiff contends that he will be unable to exercise his right of free speech on public
sidewalks because of the threat of prosecution in the absence of this preliminary injunction. He says
that Sgt. Dempsey clearly warned him of the criminal consequences if he continued to display his
sign. Additionally, in the letter to the plaintiff dated October 20, 2016, the city’s attorney, on behalf
of the city, advised the plaintiff that his display of his sign on any public sidewalk is prohibited by
Center Line ordinance section 1510. The plaintiff reasonably believes he will face arrest or some
other criminal sanction if he continues to carry his sign publicly.
The defendants argue that the plaintiff will not suffer irreparable injury because the two city
ordinances are constitutional, and therefore the plaintiff cannot suffer any deprivation of First
Amendment freedoms. They also contend that the plaintiff’s fear of criminal sanction is based on
a subjective belief of enforcement. Sgt. Dempsey concedes that the plaintiff was told to leave the
intersection, but maintains that he did so voluntarily. The defendants contend that the city has never
threatened prospective enforcement of the ordinances against the plaintiff.
Although there is a conflict between Mattia’s and Dempsey’s affidavits on the tenor of the
discussion of criminal sanction at the intersection, the plaintiff’s video clears that up in his favor.
So does the city’s letter, which states unequivocally that the plaintiff’s display of his sign is
prohibited by ordinance 1510. The plaintiff therefore has demonstrated a threat to his First
Amendment interests sufficient to show irreparable harm. See Elrod, 427 U.S. at 373 (finding an
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irreparable injury where “First Amendment interests were either threatened or in fact being
impaired, . . . for even minimal periods of time”).
C.
The defendants do not argue that the injunction will cause substantial harm to others.
Instead, they contend that the challenged ordinances are constitutional and that the plaintiff has not
and will not suffer any concrete injury. But in the Sixth Circuit, “‘if the plaintiff shows a substantial
likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to
inhere its enjoinment.’” Bays, 668 F.3d at 825 (quoting Deja Vu of Nashville, Inc. v. Metro. Gov't
of Nashville and Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001)).
The plaintiff has satisfied his burden of showing a likelihood of success to his first
Amendment challenges to both ordinances. And mere compliance with constitutional principles will
inflict no harm on the defendants. This factor also favors the plaintiff.
D.
The defendants argue that the public interest will not be served by the issuance of an
injunction because the ordinances do not violate the plaintiff’s constitutional rights. They also argue
that an injunction would be detrimental to the public interest because it would prevent enforcement
of laws supported by legitimate government purposes. However, in finding that the plaintiff likely
will succeed on the merits, the Court has concluded otherwise.
The Sixth Circuit has found that “‘it is always in the public interest to prevent violation of
a party's constitutional rights.’” Deja Vu of Nashville, 274 F.3d at 400 (quoting G & V Lounge, Inc.
v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). Where the public
interest is involved, “equitable powers assume an even broader and more flexible character than
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when only a private controversy is at stake.” Porter v. Warner Holding Co., 328 U.S. 395, 398
(1946).
This factor favors the plaintiff.
IV.
The plaintiff has demonstrated an injury in fact and has standing to proceed with his claims.
None of them are mooted by the defendants’ later actions. Qualified immunity does not prohibit the
issuance of a preliminary injunction. The relevant factors favor the issuance of a preliminary
injunction to prevent the defendants from interfering with the plaintiff’s exercise of his First
Amendment speech rights.
Accordingly, it is ORDERED that the plaintiff’s motion for a preliminary injunction [dkt.
#6] is GRANTED.
It is further ORDERED that defendants City of Center Line, William Dempsey, Dennis
Champine, and all those in active concert or participation with them who receive actual notice of
this injunctive order, are RESTRAINED, ENJOINED, AND PROHIBITED from applying Center
Line city ordinances 46-146 or 1510 to ban the constitutionally protected speech of the plaintiff,
Michael Mattia, on public sidewalks, including his use of expressive sign displays, during the
pendency of this case or until further order of the Court.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: December 18, 2017
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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on December 18, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI
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