Stockstill v. City of Picayune et al

Filing 57

MEMORANDUM OPINION AND ORDER granting in part and denying in part 42 Motion for Summary Judgment. Stockstills claims against Officer Prestridge and Chief Dawsey in their official capacities are dismissed with prejudice. Portions of Stockstills due process and freedom of speech claims are dismissed with prejudice as set forth herein; and denying 44 Motion for Summary Judgment. Signed by Chief District Judge Louis Guirola, Jr. on 7/18/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JEREMY STOCKSTILL
v.

PLAINTIFF
CAUSE NO. 1:16CV4-LG-RHW

CITY OF PICAYUNE; BRYAN DAWSEY
in his official capacity as Chief of Police
for City of Picayune Police Department;
and CHAD PRESTRIDGE individually
and in his official capacity as Patrol Officer
for the City of Picayune Police Department

DEFENDANTS

MEMORANDUM OPINION AND ORDER CONCERNING
THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT
BEFORE THE COURT are the Motion for Summary Judgment [42] filed by
the defendants City of Picayune, Chief Bryan Dawsey, and Officer Chad Prestridge
and the Motion for Summary Judgment [44] filed by the plaintiff Jeremy Stockstill.
Both Motions have been fully briefed. After reviewing the submissions of the
parties, the record in this matter, and the applicable law, the Court finds that the
defendants’ Motion for Summary Judgment should be granted as to Stockstill’s
claims against Chief Dawsey and Officer Prestridge in their official capacities as
well as Stockstill’s claims that are premised on the theory that Picayune adopted a
total ban on voice amplification within the confines of the Main Street festival. The
defendants are also entitled to summary judgment as to Stockstill’s First
Amendment claim concerning voice amplification. The defendants’ Motion is denied
in all other respects. The Court further finds that Stockstill’s Motion for Summary
Judgment should be denied.

FACTS
In this lawsuit, Stockstill claims that the defendants violated his
constitutional rights to freedom of speech and due process when they stopped him
from using voice amplification and handing out religious tracts at the Picayune
Street Festival on March 28, 2015. The bi-annual street festival is operated as a
fundraiser by Picayune Main Street, Inc. (hereafter referred to as “Main Street”), a
non-profit corporation. (Defs.’ Mot., Ex. E at 1-2, ECF No. 42-5). Main Street hires
off-duty police officers to provide security for the festival. (Id. at 2). Vendors who
rent booths at the festival are prohibited from handing out information outside of
their booths. (Id.) In the past several churches and Christian organizations have
rented booths at the festival, each paying $125 in rent. (Id.)
Officer Prestridge was paid by Main Street to provide security for the festival
on March 28, 2015. (Id.) He was an off-duty Picayune Police Officer, and he was
wearing a shirt that said “Picayune Police,” and his badge was attached to his belt.1
He was also armed and wore a police radio. At the request of Main Street Director
Reba Beebe, Officer Prestridge told Stockstill to stop handing out tracts, and he
prohibited Stockstill from using a voice amplifier to preach at the festival.2 (Id. at

The manner in which Prestridge was dressed can be seen by viewing a video that
Stockstill made of his conversation with Prestridge on the date of the Festival.
(Pl.’s Ex. F, ECF No. 5).
2 It is undisputed that Stockstill did not rent a booth for the festival, but he claims
that he had been granted a noise permit to use a voice amplifier at the location
where he was standing during the festival. Chief Dawsey admits that he signed a
noise permit for Stockstill, but Chief Dawsey claims that the permit pertained to an
area outside of the festival.
1

-2-

3). Officer Prestridge also threatened to take Stockstill to jail if he continued to
pass out tracts at the festival. (Verified Compl. at 9, ECF No. 1). During this
discussion, Major Chad Dorn, an off-duty officer with the Picayune Police
Department, called Officer Prestridge. (Id.; Defs.’ Mot., Ex. A at ¶9, ECF No. 42-1).
Major Dorn told Stockstill via speakerphone that he was not allowed to pass out
information during the festival and that he could not use a voice amplifier.
(Verified Compl. at 9-10, ECF No. 1). Major Dorn explained that Main Street had a
permit for the area in which the festival was operated, and Officer Prestridge stated
that violation of festival rules would be considered trespassing. (Id. at 10).
Lieutenant Gary Wilton of the Picayune Police Department approached and, after
some discussion, told Stockstill that he needed to leave the festival, because Main
Street had told him to leave. (Id. at 15-16).3 Lieutenant Wilton agreed with Officer
Prestridge that Stockstill would be trespassing if he continued to pass out tracts in
violation of Main Street’s rules, and he told Stockstill that the police department
would enforce the festival rules. (Id. at 16).
Officer Prestridge contacted Main Street Director Beebe and obtained
permission for Stockstill to remain at the festival as long as Stockstill stopped
handing out tracts and refrained from using voice amplification. Stockstill then
moved to a public sidewalk outside the festival, where he began passing out tracts

It appears that Lieutenant Wilton was on-duty with the police department on the
day of the festival. (See Defs.’ Mot., Ex. A at ¶9, ECF No. 42-1).
3

-3-

and preaching without amplification. (Id.) Officer Prestridge once again told
Stockstill to leave. (Id. at 17).
Stockstill filed this lawsuit pursuant 42 U.S.C. § 1983 against the City of
Picayune, Officer Prestridge in his official and individual capacities, and Chief
Dawsey in his official capacity, claiming that they violated his rights to freedom of
speech and due process. He seeks nominal damages, attorney’s fees, and a
permanent injunction permitting him to pass out tracts and use voice amplification
at future festivals.
DISCUSSION
A motion for summary judgment may be filed by any party asserting that
there is no genuine issue of material fact and that the movant is entitled to prevail
as a matter of law on any claim. Fed. R. Civ. P. 56. The movant bears the initial
burden of identifying those portions of the pleadings and discovery on file, together
with any affidavits, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant
carries its burden, the burden shifts to the non-movant to show that summary
judgment should not be granted. Id. at 324-25. The non-movant may not rest upon
mere allegations or denials in its pleadings but must set forth specific facts showing
the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256-57 (1986).

-4-

I. OFFICIAL CAPACITY CLAIMS AGAINST CHIEF DAWSEY AND
OFFICER PRESTRIDGE
The defendants first argue that the claims filed against Chief Dawsey and
Officer Prestridge in their official capacities should be dismissed, because Picayune
is the real party in interest. “Official-capacity suits . . . ‘generally represent only
another way of pleading an action against an entity of which an officer is an agent.’”
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. N.Y.C. Dep’t. of
Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Since Stockstill’s claims against Chief
Dawsey and Officer Prestridge in their official capacities are redundant of his
claims against Picayune, the Court finds that the official capacity claims Strickland
filed against Chief Dawsey and Officer Prestridge should be dismissed with
prejudice. See Fife v. Vicksburg Healthcare, LLC, 945 F. Supp. 2d 721, 731 (S.D.
Miss. 2013).
II. STATE ACTION
“To state a claim under § 1983, a plaintiff must allege facts showing that a
person, acting under color of state law, deprived the plaintiff of a right, privilege or
immunity secured by the United States Constitution or the laws of the United
States.” Bryant v. Military Dep’t of Miss., 597 F.3d 678, 686 (5th Cir. 2010). “A
person acts ‘under color of state law’ if he engages in the misuse of power, possessed
by virtue of state law and made possible only because the wrongdoer is clothed with
the authority of state law.” Id. (internal quotation marks omitted). “The Supreme
Court has clarified that in cases under § 1983 ‘under color of law’ has consistently
been treated as the same thing as the ‘state action’ required under the Fourteenth
-5-

Amendment.” Blankenship v. Buenger, 653 F. App’x 330, 335 (5th Cir. 2016) (citing
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “While the [state action]
inquiry is necessarily fact-bound, whether state action exists is a question of law for
the court . . . .” Id. (internal quotation marks omitted).
The defendants assert that Stockstill was not subjected to state action at the
festival for the following reasons:
(1) the [f]estival is operated by a non-profit organization governed by a
Board of Directors that is not appointed by Picayune; (2) the non-profit
organization pays off-duty officers to serve as security at the [f]estival;
and (3) the security officers who principally interacted with Stockstill
during the Spring 2015 [f]estival were off-duty from the Picayune
Police Department and paid by the non-profit organization.
(Defs.’ Mem. at 9, ECF No. 43).
“Whether an officer is acting under color of state law does not depend on his
on- or off-duty status at the time of the alleged violation.” Bustos v. Martini Club
Inc., 599 F.3d 458, 464 (5th Cir. 2010). Regardless of whether a police officer is onduty or off-duty, “a police officer acts under color of state law when he purports to
exercise official authority.” Parks v. City of Columbus, 395 F.3d 643, 652 (6th Cir.
2005) (quoting Memphis, Tenn. Area Local Am. Postal Workers Union AFL-CIO v.
City of Memphis, 361 F.3d 898, 903 (6th Cir. 2004)). If an off-duty police officer
wears a badge, identifies himself as a police officer, and threatens arrest, there is a
presumption of state action. Id.; see also Williams v. Dillard’s Dep’t Stores, Inc., 211
F. App’x 327, 330 (5th Cir. 2006) (holding that an off-duty police officer was acting
in a public capacity, because she was wearing a uniform and badge and she
performed an arrest).
-6-

In the present case, Officer Prestridge wore a badge, a gun, a police radio,
and a shirt that said “Picayune Police.” He also told Stockstill that he is a police
officer twenty-four hours a day, and he threatened to arrest Stockstill. (Verified
Compl. at 10, 13, 15, ECF No. 1). Therefore, there is a presumption of state action.
Nevertheless, the defendants argue that the Fifth Circuit’s decision in
Rundus v. City of Dallas, 634 F.3d 309 (5th Cir. 2011), dictates a finding that there
was no state action in the present case. In Rundus, the plaintiff was twice
prohibited from passing out free Bible tracts at the Texas State Fair, which was run
by a private corporation, the State Fair of Texas, and was held in Dallas, Texas.
Rundus, 634 F.3d at 311. The State Fair of Texas was a tenant of the City of
Dallas. Id. at 311, 314. Admission to the Fair was only permitted for those who
had purchased tickets at a price set by the State Fair. Id. at 312. The City
assigned approximately 160 police officers to patrol the fair. Id. These officers
“enforce[d] applicable laws, including criminal trespass, but [did] not enforce [State
Fair’s] rules and regulations.” Id.
The State Fair paid a portion of the officers’ wages for the fair. Id. at 313.
The State Fair had enacted a rule prohibiting the distribution of literature without
a booth rental. Id. at 312. The Rundus plaintiff sued the State Fair of Texas and
the City of Dallas, alleging that the State Fair’s prohibition of distribution of
literature violated his First Amendment rights. Id. The Fifth Circuit opinion did
not discuss any direct interaction between the Rundus plaintiff and city police
officers or other city officials. See id. It addressed the question of whether the

-7-

private corporation State Fair of Texas was a state actor and whether the city had
delegated policy-making authority to the State Fair. Id. at 312 and n.4.
Since the City of Dallas had “no say in [the State Fair’s] internal decision
making, and had no role in enacting or enforcing the restriction on distribution of
literature” and the Dallas police enforced “only criminal statutes and ordinances
that provided neutral assistance,” the Rundus court found that the State Fair was
not a state actor. Id. at 314, 315. In making this finding, the Rundus court
distinguished cases from other circuits that had found state action. Id. at 314. For
example, Parks v. City of Columbus, 395 F.3d 643 (6th Cir. 2005), was
distinguishable because the city at issue in Parks had “aided the private event
organizers in enforcing their speech restrictive regulations” and “the event
organizers held a permit, and were not the city’s tenants.” Id. The court
distinguished Wickersham v. City of Columbia, 481 F.3d 591 (8th Cir. 2007),
because “[t]he City of Columbia not only provided critical assistance in planning
and operating the [air] show, but also played an active role in enforcing the
particular speech restrictions . . . .” Id. Furthermore, the Columbia police force’s
actions went “beyond the kind of neutral assistance that would normally be offered
to private citizens in enforcing the law of trespass.” Id.
In the present case, Main Street is a permit-holder, not a tenant. A Picayune
police officer who was purporting to exercise official authority told Stockstill to
leave and threatened to arrest him for trespassing, because Main Street did not
want Stockstill to pass out tracts at the festival. Other police officers, one of whom

-8-

was on-duty, also made similar statements and threats. These police officers
possessed power by virtue of state law and their actions were made possible by their
official authority. See Bryant, 597 F.3d at 686 (noting that an officer’s conduct must
have been made possible by the officer’s state authority to be consider state action).
Stockstill is not attempting to demonstrate that Main Street is a state actor or that
Picayune should be held liable for the actions of Main Street. See McMahon v. City
of Panama City Beach, 180 F. Supp. 3d 1076, 1104 (N.D. Fla. 2016) (distinguishing
Rundus in a case with facts very similar to the case at bar). Stockstill has sued
Picayune for its own actions in enforcing Main Street’s rules.
Most importantly, while the city officers in Rundus did not enforce State
Fair’s rules, the Picayune Police Chief has indicated that the Picayune Police
Department does enforce Main Street’s rules. Specifically, in an affidavit he
testified:
The Picayune Police Department intends to enforce the following rules
at future Festivals: With respect to distributing literature, individuals
may not distribute literature inside of the Festival unless they do so
from the confines of a rented booth. Individuals may, however,
distribute literature from the public streets and sidewalks directly
outside of the Festival. With respect to sound amplification,
individuals may not use amplification devices inside of the Festival
without a sound ordinance variance. The Police Chief will consider
variances, however for designated areas in close proximity to the
Festival.
(Defs.’ Mot., Ex. 1 at ¶10, ECF No. 42-1). Therefore, it appears that the assistance
provided to Main Street by the Picayune Police Department exceeds the kind of
neutral assistance that would normally be offered to private citizens in enforcing
the law of trespass. See Bays v. City of Fairborn, 668 F.3d 814, 820 (6th Cir. 2012)
-9-

(holding that state action existed where city officials supported and actively
enforced a private entity’s policies). Picayune’s actions and the actions of its
officers, whether on-duty or off-duty, constituted state action.4
III. MUNICIPAL LIABILITY
A municipality is subject to § 1983 liability “when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury . . . .”
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). “[A] municipality cannot be
held liable solely because it employs a tortfeasor.” Id. at 691. Thus, a § 1983
plaintiff is required to demonstrate that “(1) an official policy (2) promulgated by
the municipal policymaker (3) was the moving force behind the violation of a
constitutional right.” Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir.
2017).
Official policy is ordinarily contained in duly promulgated policy
statements, ordinances or regulations. But a policy may also be
evidenced by custom that is: “ . . . a persistent, widespread practice of
City officials or employees, which, although not officially adopted and
promulgated policy, is so common and well-settled as to constitute a
custom that fairly represents municipal policy . . . . Actions of officers
or employees of a municipality do not render the municipality liable
under section 1983 unless they execute official policy as above defined.”
Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (quoting Webster v.
City of Houston, 735 F.2d 838, 842 (5th Cir. 1984)).

The question of whether the police department’s enforcement of the policy
constituted official policy adopted by an official policymaker will be addressed
separately.
4

-10-

The question of whether a particular official has policymaking authority is a
question of law that should be made by looking to state law. Groden v. City of
Dallas, 826 F.3d 280, 284 (5th Cir. 2016) (citing City of St. Louis v. Prapotnik, 485
U.S. 112, 124 (1988)). Under Mississippi law, “[t]he governing authorities of
municipalities shall have power to make all needful police regulations necessary for
the preservation of good order and peace of the municipality and to prevent injury
to, destruction of, or interference with public or private property.” Miss. Code Ann.
§ 21-19-15(1). According to Picayune’s website, it has adopted a Council-Manager
plan of government. City of Picayune, http://www.picayune.ms.us/departments/citymanager/ (last visited July 5, 2017). Under the Council-Manager plan of
government, “[t]he mayor and councilmen shall constitute the governing body of
such city or town and shall be known as the city council or the town council as the
case may be.” Miss. Code Ann. § 21-9-35.
In their Memorandum [43], the defendants argue that Stockstill cannot
demonstrate liability on the part of Picayune, because he has failed to identify a
policy promulgated by an official policymaker. Although it appears that the
defendants may have abandoned this argument by failing to mention it in their
reply memorandum, the Court will consider whether Stockstill has met his burden
of proof.
In his response, Stockstill identifies the following policy included in an
affidavit signed by the Picayune police chief:
The Picayune Police Department intends to enforce the following rules
at future Festivals: With respect to distributing literature, individuals
-11-

may not distribute literature inside of the Festival unless they do so
from the confines of a rented booth. Individuals may, however,
distribute literature from the public streets and sidewalks directly
outside of the Festival. With respect to sound amplification,
individuals may not use amplification devices inside of the Festival
without a sound ordinance variance. The Police Chief will consider
variances, however for designated areas in close proximity to the
Festival.
(Defs.’ Mot., Ex. 1 at ¶10, ECF No. 42-1). Under Mississippi law, it appears that the
police chief may not be the official policymaker for Picayune. See Miss. Code Ann. §
21-19-15(1); Miss. Code Ann. § 21-9-35. Since Picayune did not respond to
Stockstill’s arguments in its reply memorandum, it is unclear whether Picayune’s
governing authority adopted the policy described by the police chief or whether the
governing authority delegated policymaking authority to the police chief.
While the record in this matter is undeveloped as to the identity of the official
policymaker, the police chief’s affidavit, coupled with Picayune’s failure to dispute
Stockstill’s arguments in its reply, is sufficient to withstand summary judgment.
As a result, the Court finds that a genuine issue of material fact exists as to
whether the police officers at the festival were acting pursuant to a policy
promulgated by an official policymaker when they prohibited Stockstill from
handing out religious tracts. Stockstill is cautioned that at trial, he will be required
to demonstrate that the policies at issue were adopted by an official policymaker
and to demonstrate the identity of that policymaker.
However, to the extent that Stockstill claims that Picayune has adopted a
total ban on voice amplification within the festival grounds, he has not provided any
evidence to support this assertion. The police chief’s affidavit indicates that
-12-

amplification would be permissible within the festival grounds if a variance is
granted.5 As a result, any of Stockstill’s claims that are premised on the theory that
Picayune has adopted a total ban on voice amplification within the festival grounds
must be dismissed for failure to provide evidence of an official policy promulgated
by an official policymaker.
A. DUE PROCESS
The defendants also argue that Stockstill’s Fourteenth Amendment due
process claim should be dismissed, because it is duplicative of Stockstill’s freedom of
speech claim. In support of this assertion, the defendants rely on cases holding that
where a particular Amendment to the Constitution “provides an explicit textual
source of constitutional protection against [a particular sort of government
behavior,] the Amendment, not the more generalized notion of substantive due
process must be the guide for analyzing these claims.” See Blackwell v. Barton, 34
F.3d 298, 302 (5th Cir. 1994) (quoting Graham v. Connor, 490 U.S. 386, 394 (1989));
see also Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 442 (5th Cir. 2015).
Stockstill counters that he has not asserted a substantive due process claim; rather,
he has asserted a claim pursuant to the vagueness doctrine.

Stockstill claims that he was prohibited from using amplification even though he
was granted a noise permit that permitted amplification within festival grounds.
The police chief disputes this assertion. Nevertheless, if Officer Prestridge and the
other officers violated Picayune’s official policy of allowing amplification pursuant to
a permit, then there can be no municipal liability. See Jackson v. Ford, 544 F.
App’x 268, 272 (5th Cir. 2013) (holding that official policy could not constitute
constitutional violation where county employees violated official policy); Minor v.
Jackson Mun. Airport Auth., No. 3:15cv936-DPJ-FKB, 2016 WL 4869696, at *2 n.2
(S.D. Miss. Sept. 13, 2016).
5

-13-

“‘Vagueness’ is a question of notice, i.e., procedural due process . . . .” Scott v.
Schedler, 826 F.3d 207, 211 (5th Cir. 2016); see also San Filippo v. Bongiovanni, 961
F.2d 1125, 1138 (3d Cir. 1992) (distinguishing a vagueness attack from a
substantive due process claim). The “[v]agueness doctrine is an outgrowth not of
the First Amendment, but of the Due Process Clause . . . .” Munn v. City of Ocean
Springs, 763 F.3d 437, 439 (5th Cir. 2014). “It is a basic principle of due process
that an enactment is void for vagueness if its prohibitions are not clearly defined.”
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); see also Machete Prods., LLC
v. Page, 809 F.3d 281, 291 (5th Cir. 2015) (explaining that the Due Process Clause
“protects speakers from arbitrary and discriminatory enforcement of vague
standards”).
Vagueness-as-applied considerations often enter into First Amendment
overbreadth cases, where the court finds that the catchall statute,
while giving notice of most proscribed conduct may nonetheless chill
constitutionally-protected free speech because of the uncertainty of a
speaker as to whether his speech will or will not fall within the scope of
the vague area of the regulation and incur governmental sanction.
Shawgo v. Spradlin, 701 F.2d 470, 477 (5th Cir. 1983) (citing inter alia Bence v.
Breier, 501 F.2d 1185, 1188 (7th Cir. 1974)). “Uncertain meanings inevitably lead
citizens to steer far wider of the unlawful zone than if the boundaries of the
forbidden areas were clearly marked.” Grayned, 408 U.S. at 109 (internal quotation
marks and ellipsis omitted).
The record in this matter reflects that Stockstill is attempting to assert a
vagueness claim, not a substantive due process claim. In their reply, the
defendants argue in the alternative that Stockstill’s purported due process claim is
-14-

not a valid claim for vagueness. (Defs.’ Reply at 3, ECF No. 55). This Court will not
consider an argument made for the first time in a reply brief, particularly where the
non-movant has not had an opportunity to respond to the argument. See Gillaspy v.
Dallas Indep. Sch. Dist., 278 F. App’x 307, 315 (5th Cir. 2008). As a result, the
Court finds that the defendants’ Motion for Summary Judgment as to Stockstill’s
due process claim should be denied to the extent that this claim is not based on
Stockstill’s contention that Picayune adopted a total ban on voice amplification.6
B. FREEDOM OF SPEECH
The First Amendment, which is applied to the states and their political
subdivisions through the Due Process Clause of the Fourteenth Amendment,
provides that “Congress shall make no law . . . abridging the freedom of speech.”
U.S. Const. amend. 1; Catholic Leadership Coal. of Tex. v. Eisman, 764 F.3d 409,
414 n.1 (5th Cir. 2014). “[T]he oral and written dissemination of . . . religious views
and doctrines” is included within this protection. Heffron v. Int’l Soc. for Krishna
Consciousness, Inc., 452 U.S. 640, 647 (1981). However, “the First Amendment does
not guarantee the right to communicate one’s views at all times and places or in any
manner that may be desired.” Id.
The appropriate standard of review for government restrictions on the
freedom of speech depends on the type of forum in which the speech was restricted.

Stockstill’s Motion for Summary Judgment appears to be based solely on his First
Amendment claim. To the extent that Stockstill may have intended to seek
summary judgment as to his due process claim, the Court finds that Stockstill has
not provided sufficient argument or legal authority to demonstrate that he is
entitled to summary judgment as to that claim.
6

-15-

There are three categories of forums: “(1) traditional and designated public forums;
(2) limited public forums; and (3) nonpublic forums.” Fairchild v. Liberty Indep.
Sch. Dist., 597 F.3d 747, 757-58 (5th Cir. 2010). Stockstill argues that the streets
where the festival was held remained a traditional public forum during the festival,
but the defendants claim that the privately-run festival converted the streets to a
non-public forum.
“Traditional public forums include sidewalks, streets, and parks that the
public since time immemorial has used for assembly and general communication.”
Id. at 758. “The state can also intentionally create ‘designated’ public forums on
other state property for the same widespread use as traditional public forums.” Id.
[E]ven in a public forum the government may impose reasonable
restrictions on the time, place, or manner of protected speech, provided
the restrictions are justified without reference to the content of the
regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative
channels for communication of the information.
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1981) (internal quotation marks
omitted).
The defendants concede that the streets on which the festival is conducted
are generally considered public forums, but they assert that “such forums may
temporarily be converted to non-public forums when the government provides
exclusive use to the private entity.” (Defs.’ Mem. at 10, ECF No. 43). In support of
this assertion, they rely on Sistrunk v. City of Strongsville, 99 F.3d 194, 196 (6th

-16-

Cir. 1996).7 However, Sistrunk is distinguishable, because the event at issue in that
case was a closed political rally organized by a committee supporting President
George H.W. Bush’s 1992 reelection campaign. Sistrunk, 99 F.3d at 196. Although
the location of the rally was typically a public area, the rally itself was “limited to
the members of the organization and their invitees” pursuant to a permit obtained
from the city. Id. The Sixth Circuit held that the First Amendment rights of a high
school student were not violated when she was required to remove a Bill Clinton
button prior to entering the rally. Id. at 196, 200. The court explained that the
student’s “only claim [was] that she was not permitted to participate in the
committee’s speech while expressing her own discordant views.” Id. at 199.
In the present case, the festival was open to the public, and Stockstill was not
attempting to interfere with the speech rights of Main Street. There is no evidence
in the record that Main Street is attempting to convey any particular message at
the festival, particularly since it rents booths to over 300 information and food
vendors, including churches from several different denominations. (Defs.’ Mot., Ex.
E at ¶¶ 7-8, ECF No. 15-5).
The defendants claim that Main Street was granted an exclusive permit for
the festival, but they have produced no evidence to support this assertion. Even if

The defendants also cite United Auto Workers, Local No. 5285 v. Gaston Festivals,
Inc., 43 F.3d 902 (4th Cir. 1995), but in that case, the Fourth Circuit did not reach
the issue of whether the streets at issue remained a traditional public forum during
a privately-run festival, because the court found there was no state action. Their
reliance on Wickersham v. City of Columbia, 371 F. Supp. 2d 1061 (W.D. Mo. 2005),
is likewise misplaced because that case concerned an airport tarmac that had never
been designated as a public forum.
7

-17-

the permit were exclusive, that would not necessarily change the public nature of
the forum, because the government “may not by its own ipse dixit destroy the ‘public
forum’ status of streets and parks which have historically been public forums.”
McMahon, 180 F. Supp. 3d at 1097 (quoting United States v. Grace, 461 U.S. 171,
180 (1983)). Traditional public forums remain public during private, open-to-thepublic events held on public property pursuant to a permit. Parks, 395 F.3d at 652;
see also Teesdale v. City of Chicago, 690 F.3d 829, 834 (7th Cir. 2012) (holding that
a festival sponsored by a private entity did not convert the city streets to a nonpublic forum because “it [was] a public festival, held on public city streets, free and
open to all members of the general public”). As the Sixth Circuit noted when it
distinguished the Sistrunk decision, “the City cannot . . . claim that one’s
constitutionally protected rights disappear because a private party is hosting an
event that remained free and open to the public.” Parks, 396 F.3d at 652. As a
result, the streets on which Main Street’s festival was held remained a traditional
public forum.
Since the festival site was a traditional public forum, the Court must next
determine whether Picayune violated Stockstill’s First Amendment rights when it
prohibited him from distributing religious tracts and using a voice amplifier during
the festival. The government can impose a time, place, and manner restriction on
speech at a traditional forum if (1) it is content neutral; (2) it is “narrowly tailored
to achieve a significant government interest”; and (3) it “leave[s] open ample
alternative channels of communication.” Ward, 491 U.S. at 791. The requirement

-18-

of narrow tailoring is satisfied as long as the restriction “promotes a substantial
government interest that would be achieved less effectively absent the regulation”
and does not “burden substantially more speech than is necessary to further the
government’s legitimate interests.” Id. at 799. However, the restriction “need not
be the least restrictive or least intrusive means” of serving the government’s
significant interests. Id. at 798. Thus, a court’s conclusion that the government’s
interest “could be adequately served by some less-speech-restrictive alternative” is
not sufficient to invalidate a restriction. Id. at 800.
Stockstill argues that the restrictions are content-based, but he has not
provided any evidence to support this argument.8 He also asserts that the
restrictions are not narrowly tailored to a significant or legitimate government
interest and do not leave open ample alternative channels of communication.
Picayune claims that the restrictions serve the following governmental
interests: (1) the public’s comfort and enjoyment of the streets, (2) the success of
community events and local businesses, (3) safety and protection, (4) convenient
flow of pedestrian traffic, (5) noise reduction, (6) litter control, and (7) aesthetics.
(Defs.’ Mot., Ex. A at ¶12, ECF No. 15-1). Generally, a governmental entity’s
“interest in protecting the ‘safety and convenience’ of persons using a public forum
is a valid governmental objective.” Heffron, 452 U.S. at 650. Furthermore, limiting

Stockstill’s argument that the restrictions were content-based is confined to a
single footnote in his Response. (Pl.’s Resp. at 7 n.3, ECF No. 51). He merely
argues that that Picayune’s enforcement of festival rules necessarily must
constitute a content-based restriction.
8

-19-

sound volume is a substantial interest. See Ward, 491 U.S at 796 (explaining that
protecting the public from excessive noise is a significant public interest even in a
traditional public forum). Nevertheless, “the significance of the governmental
interest must be assessed in light of the characteristic nature and function of the
particular forum involved.” Heffron, 452 U.S. at 650-51. Therefore, the
governmental entity “must demonstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate these harms in a direct and
material way.” Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622,
664 (1994). Furthermore, the consideration should not be limited to the amount of
disruption that the plaintiff alone would cause, but the aggregate effect of all other
individuals and organizations that would be entitled to distribute literature and/or
use amplification devices. See Heffron, 452 U.S. at 654.
As explained previously, some of Stockstill’s claims appear to be based on his
contention that Picayune has adopted a total ban on voice amplification within the
festival, but there is no evidence of an official municipal policy of this nature. To
the extent that Stockstill may also be contesting Picayune’s noise permit policy, the
Court finds that this policy is narrowly tailored to the significant government
interest of noise reduction. If Picayune were required to allow individuals and
organizations to use unlimited voice amplification within the festival grounds,
members of the public would be bombarded with numerous messages
simultaneously, resulting in excess noise and chaos. Stockstill argues that
Picayune’s interest in noise reduction is not legitimate, because it allows the festival

-20-

organizers to play loud music at certain locations within the festival grounds.
Allowing amplified music in specified locations at the festival is vastly different
from allowing numerous individuals and organizations to use voice amplification
throughout the festival grounds. Stockstill is still allowed ample alternative
channels of communication, because he can apply for a noise permit to allow him to
amplify his voice or he can speak to passers-by using his natural voice.
The Court finds that a genuine issue of material fact exists regarding
whether Picayune’s enforcement of the literature ban is narrowly tailored to a
significant government interest.9 While Picayune has produced some evidence
indicating that the festival can become very crowded at times, there is other
evidence indicating that crowding may not be an issue in some portions of the
festival grounds. Furthermore, it is unclear whether individuals passing out
literature would cause safety issues, crowding, or other issues during the festival,
particularly if those activities were restricted to less congested areas of the festival.
Picayune has not demonstrated the extent to which the literature ban contributes to
the success of community events and local businesses, particularly since there is no
evidence concerning the number of festival booth rentals that would likely be lost if
individuals were permitted to pass out literature outside of booths. Specifically,
there is no evidence concerning the average number of information-only booths
versus the number of food or merchandise booths at the festival.

The Court does not reach the issue of whether the literature restriction leaves
open ample alternative means of communication.
9

-21-

The parties’ Motions for Summary Judgment are denied as to Stockstill’s
First Amendment claim concerning passing out literature at the festival. The
defendants’ Motion for Summary Judgment is granted and Stockstill’s Motion for
Summary Judgment is denied as to Stockstill’s First Amendment claims against
Picayune concerning voice amplification.
IV. QUALIFIED IMMUNITY
The defendants also argue that Officer Prestridge is entitled to qualified
immunity as to the claims filed against him in his individual capacity. “Qualified
immunity protects government officials from liability for civil damages to the extent
that their conduct is objectively reasonable in light of clearly established law.”
Crostley v. Lamar Cnty., 717 F.3d 410, 422 (5th Cir. 2013) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “To determine whether an official is entitled
to qualified immunity, the court asks (1) whether the plaintiff has alleged a
violation of a constitutional right, and (2) whether the defendant’s conduct was
objectively reasonable in light of the clearly established law at the time of the
incident.” Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008). Once a defendant
invokes qualified immunity, the plaintiff has the burden to demonstrate the
inapplicability of the defense. Crostley, 717 F.3d at 422 (quoting McClendon v. City
of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)).
As explained previously, a genuine issue of material fact exists regarding
whether Stockstill’s constitutional rights were violated. Furthermore, Stockstill
claims that Officer Prestridge not only prevented Stockstill from preaching and

-22-

passing out literature within the festival grounds but also outside the festival
grounds. The defendants have not identified any substantial interest that would
have been served by banning Stockstill from preaching or handing out literature
outside the festival. Stockstill also asserts that Prestridge prevented him from
using voice amplification even though he had a permit allowing amplification within
festival grounds. If Stockstill’s testimony is believed, Prestridge’s conduct was
objectively unreasonable under clearly established law. Therefore, the defendants
have not demonstrated that Officer Prestridge is entitled to qualified immunity.
V. LAW OF THE CASE DOCTRINE
The defendants argue that they are entitled to summary judgment based on
the law of the case doctrine. They claim that this Court’s prior Order [21] denying
Stockstill’s Motion for a Preliminary Injunction, which was affirmed by the Fifth
Circuit on appeal, should be treated as the law of the case, thus requiring an award
of summary judgment. In support of this assertion, the defendants cite Gaalla v.
Brown, 460 F. App’x 469, 476 (5th Cir. 2012). In Gaalla, the Fifth Circuit explained
that “a decision on interlocutory appeal of the grant of a preliminary injunction
constitutes law of the case as to legal determinations,” but not as to factual
determinations. Gaalla, 460 F. App’x at 476. However, the law of the case doctrine
“extends only to matters actually decided.” Royal Ins. Co. of Amer. v. Quinn-L
Capital Corp., 3 F.3d 877, 881 (5th Cir. 1993).
On interlocutory appeal, the Fifth Circuit affirmed this Court’s decision
“essentially for the reasons stated in the district court’s comprehensive oral findings

-23-

and conclusions.” Stockstill v. City of Picayune, 669 F. App’x 216, 216 (5th Cir.
2016). After a thorough discussion of relevant case law, this Court provided the
following reasoning to support its decision to deny Stockstill’s request for a
preliminary injunction:
So taking all of the facts into consideration, considering all of the case
law here, which you know, as has been indicated more than once, none
of it is directly on point with all of the facts and issues here, but
certain parts of them do speak to certain parts of this case, the Court is
of the view that, as has been acknowledged, the restrictions are
content neutral. I think it’s a certainly debatable question whether
these things are narrowly tailored to achieve a substantial government
interest. I think the government functions at issue are substantial.
And I think there are alternative means of communication.
But at the end of the day, a close question, in the Court’s view, means
that the plaintiff has not shown a substantial likelihood of success on
the merits, which is the high burden he must carry at a preliminary
injunction hearing. And, of course, the Court expresses no view about
what the ultimate resolution of the case might be . . . .
(Tr. at 29, ECF No. 22).
This Court, and thus the Fifth Circuit, made no determination regarding
whether the restrictions at issue were narrowly tailored to a significant government
interest. As a result, the law of the case doctrine does not compel an award of
summary judgment to Picayune.

-24-

CONCLUSION
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter this result.
Stockstill’s claims filed against Chief Dawsey and Officer Prestridge in their official
capacities are dismissed, because these claims are redundant of his claims filed
against Picayune. Stockstill’s due process and freedom of speech claims against
Picayune are dismissed to the extent that those claims are premised on Stockstill’s
assertion that Picayune adopted a total ban on voice amplification within the
festival grounds, because Stockstill has not provided any evidence that Picayune
has adopted such a policy. Any remaining freedom of speech claim concerning voice
amplification must be dismissed, because Picayune’s policy of utilizing noise
permits to limit voice amplification is narrowly tailored to the significant
government interest of noise reduction and Picayune’s policy offers ample
alternatives. The remainder of the defendants’ Motion for Summary Judgment and
the entirety of Stockstill’s Motion for Summary Judgment are denied due to the
existence of genuine issues of material fact.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion for
Summary Judgment [42] filed by the defendants City of Picayune, Bryan Dawsey,
and Chad Prestridge is GRANTED IN PART AND DENIED IN PART.
Stockstill’s claims against Officer Prestridge and Chief Dawsey in their official
capacities are DISMISSED WITH PREJUDICE. Portions of Stockstill’s due

-25-

process and freedom of speech claims are DISMISSED WITH PREJUDICE as set
forth herein.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Motion for
Summary Judgment [44] filed by the plaintiff Jeremy Stockstill is DENIED.
SO ORDERED AND ADJUDGED this the 18th day of July, 2017.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

-26-