Elli v. Ellisville, Missouri, City of et al

Filing 31

OPINION, MEMORANDUM AND ORDER re: 5 ORDERED that Plaintiff's Motion for Preliminary Injunction, [Doc. No. 5], is granted, and that Plaintiffs shall be required to pay a bond of $100.00 in support thereof. A separate judgement shall issue inaccordance with this memorandum. Signed by District Judge Henry E. Autrey on 2/3/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL J. ELLI,

)
)
Plaintiff,
)
)
v.
) No. 4:13CV711 HEA
)
CITY OF ELLISVILLE, MISSOURI, et al.,
)
)
Defendants.
)
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Preliminary
Injunction, [Doc. No. 5]. Defendant opposes the Motion. A hearing was held on
the matter, and after consideration of the motion, applicable law and argument, the
Court will grant the Preliminary Injunction.
Facts and Background
Plaintiff’s Verified Class-Action Complaint sets out the following
undisputed facts:
This is a civil rights action filed by Michael J. Elli challenging the policy
and custom of the City of Ellisville, Missouri, of having police officers pull over,
detain, and cite individuals who are perceived as having communicated to
oncoming traffic that a speed trap is ahead by flashing their headlamps and then
prosecuting and imposing fines upon those individuals.
The policy or custom includes citing and prosecuting individuals for
violation of an ordinance that no reasonable officer would believe the individuals
had violated, without reasonable suspicion or probable cause to believe they had

violated any law, and in retaliation for the individuals having engaged in
expressive conduct protected by the First Amendment.
This action arises under the Constitution of the United States and the
provisions of 42 U.S.C. § 1983. The jurisdiction of this court is invoked pursuant
to 28 U.S.C. §§ 1331 and 1343(a), and pursuant to 42 U.S.C. § 1983.
Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1)-(2)
because all defendants reside in Saint Louis County and a substantial part of the
events or omissions giving rise to the claims occurred in Saint Louis County.
Venue is proper in the Eastern Division pursuant to E.D.MO. L.R. 2.07 (A)(1)
and (B)(2).
Plaintiff, Michael J. Elli, is a resident of the City of Ellisville and the State
of Missouri. Defendant City of Ellisville, Missouri, is a municipal corporation
and political subdivision of the State of Missouri. Defendant John Doe is a police
officer of City of Ellisville, Missouri, whose name is not known to Plaintiff.
On November 17, 2012, Doe pulled Plaintiff’s vehicle over and issued to
Plaintiff Ellisville Police Department Uniform Citation No. 09-00046459 for
allegedly “[f]lashing lights on certain vehicles prohibited. warning of RADAR
ahead.” Doe is sued in his individual and official capacities.
All defendants have acted, and continue to act, under color of state law at all
times relevant to this Complaint.
Plaintiff is a resident of the City of Ellisville, Missouri. Prior to the incident at
issue in this case, Plaintiff had not been alleged to have committed any moving
violation or other infraction for more than thirty-five years.
About 2:50 in the afternoon of November 17, 2012, Plaintiff drove his
vehicle northbound on Kiefer Creek Road within the City of Ellisville, Missouri.
Plaintiff observed a speed-trap. Plaintiff communicated by flashing his headlamps
to drivers approaching in the opposite direction –none of whom Plaintiff suspected
of violating any law– that they should proceed with caution.
The flashing of headlamps is commonly understood as conveying the
message to slow down and proceed with caution.
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The Missouri Department of Revenue, which is responsible for the licensing
of drivers within the State of Missouri, recommends drivers flash their headlamps
to warn other drivers of emergencies.
Doe did not have reasonable suspicion to believe that Plaintiff had violated any
law. Doe, who was traveling in traffic in a marked police vehicle, activated his
flashing lights to signal to Plaintiff that he must pull over to the side of the road.
Plaintiff complied. Plaintiff was not free to leave the stop until after he was issued
a citation. Doe issued to Plaintiff Ellisville Police Department Uniform Citation
No. 09-00046459 for allegedly “[f]lashing lights on certain vehicles prohibited.
warning of RADAR ahead.” The citation notified Plaintiff that he must appear in
court on December 20, 2012. The citation notified Plaintiff: “YOUR FAILURE
TO APPEAR IN COURT AT THE TIME SPECIFIED ON THIS CITATION AS
DIRECTED MAY RESULT IN THE SUSPENSION OF YOUR DRIVER’S
LICENSE AND DRIVING PRIVILEGE AND MAY RESULT IN A WARRANT
BEING ISSUED FOR YOUR ARREST.”
The offense with which Plaintiff was charged required a court appearance.
Plaintiff was charged with violating City of Ellisville Code of Ordinances
§ 375.100. Section 375.100, entitled “Limitations on Lamps Other than
Headlamps – Flashing Signals Prohibited Except on Specified Vehicles,”
provides: Any lighted lamp or illuminating device upon a motor vehicle
other than headlamps, spotlamps, front direction signals or auxiliary lamps which
projects a beam of light of an intensity greater than three hundred (300)
candlepower shall be so directed that no part of the beam will strike the level of
the roadway on which the vehicle stands at a distance of more than seventy-five
(75) feet from the vehicle. Alternately flashing warning signals may be used on
school buses when used for school purposes and on motor vehicles when used to
transport United States mail from post offices to boxes of addressees thereof and
on emergency vehicles as defined in Section 300.010 of this Title and on buses
owned or operated by churches, mosques, synagogues, temples or other houses of
worship and on commercial passenger transport vehicles that are stopped to load
or unload passengers, but are prohibited on other motor vehicles, motorcycles and
motor-drawn vehicles except as a means for indicating a right or left turn.
Prior to his court appearance, Plaintiff corresponded with City of Ellisville
Chief of Police Tom Felgate about the citation. In the course of the
correspondence, Felgate advised Plaintiff that a violation of § 375.100 is a moving
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violation, unlike an equipment violation, and if Plaintiff were found guilty, points
would be assessed.
When Plaintiff appeared in municipal court, as directed on the citation, he
was advised by the municipal judge that the standard punishment imposed in the
City of Ellisville for using headlamps to communicate the presence of a speed-trap
is a $1,000.00 fine. When Plaintiff asserted to the municipal judge that he wanted
to plead not guilty because he did not believe flashing headlamps violated §
375.100, the judge became agitated and asked Plaintiff if he had ever heard of
“obstruction of justice.”
After Plaintiff entered a plea of not guilty, he was ordered to return to
municipal court on February 21, 2013. On February 12, 2013, the prosecution of
Plaintiff was terminated in his favor when the charge was dismissed.
Discussion
“[W]hether a preliminary injunction should issue involves consideration of
(1) the threat of irreparable harm to the movant; (2) the state of balance between
this harm and the injury that granting the injunction will inflict on other parties
litigant; (3) the probability that movant will succeed on the merits; and (4) the
public interest.” Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th
Cir.1981). “When a plaintiff has shown a likely violation of his or her First
Amendment rights, the other requirements for obtaining a preliminary injunction
are generally deemed to have been satisfied.” Minnesota Citizens Concerned for
Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir.2012) (quoting Phelps–Roper v.
Troutman, 662 F.3d 485, 488 (8th Cir.2011), vacated on reh'g, 705 F.3d 845 (8th
Cir.2012)).
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Likelihood of Success on the Merits
Plaintiff argues that he is likely to succeed on the merits of his First
Amendment free speech claim.
“When “[a]n intent to convey a particularized message [is] present, and in
the surrounding circumstances the likelihood [is] great that the message would be
understood by those who viewed it,” it is protected speech. See Spence v. State of
Wash., 418 U.S. 405, 410-11 (1974).
Defendants do not present any substantial argument in opposition, other
than the facts Defendants have discontinued the police action that actually affected
Plaintiff, and have enacted official policy which insures that the police action that
affected Plaintiff will not take place in the future. However, this policy and its
affects on Plaintiff fail to ensure Plaintiff’s ability to exercise his First Amendment
right of free speech because of the chance that Defendants can use other statutory
provisions to quash Plaintiff’s ability to communicate his message. As Plaintiff
points out, for example, Defendant’s officers have authority to enforce Mo. Rev.
Stat. § 307.100, which is nearly identical to § 375.100.
At the preliminary injunction hearing, Defendant suggested that flashing
headlamps might be illegal interference with a police investigation; however, the
expressive conduct at issue sends a message to bring one’s driving in
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conformity with the law—whether it be by slowing down, turning on one’s own
headlamps at dusk or in the rain, or proceeding with caution. Missouri (but not
Ellisville) makes it “the crime of hindering prosecution if for the purpose of
preventing the apprehension, prosecution, conviction or punishment of another for
conduct constituting a crime he … [w]arns such person of impending discovery or
apprehension, except this does not apply to a warning given in connection with an
effort to bring another into compliance with the law[.]” Mo. Rev. Stat. § 575.030
Even assuming, arguendo, that Plaintiff or another driver is communicating a
message that one should slow down because a speed trap is ahead and discovery
or apprehension is impending, that conduct is not illegal. Section 375.100 was
clearly inapplicable to the expressive conduct at issue from the beginning, so
assurance that Plaintiff will not face detention, arrest, or prosecution under §
375.100 only does not eliminate the reasonable chilling effect.
The chilling effect of Ellisville’s policy and custom of having its police
officers pull over, detain, and cite individuals who are perceived as having
communicated to oncoming traffic by flashing their headlamps and then
prosecuting and imposing fines upon those individuals remains, regardless of the
limited special order. As the other preliminary injunction factors are presumed
when a likelihood of success on a First Amendment claim is shown, the Court will

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issue a preliminary injunction.
Remaining Dataphase Factors
Because Plaintiff is likely to succeed on the merits of his free speech claim,
the remaining Dataphase factors are generally deemed to be satisfied. Swanson,
692 F.3d at 870. Nonetheless, the Court concludes that the remaining Dataphase
factors weigh in favor of a preliminary injunction. The “loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality). The equities and
public interest are likewise in favor of an injunction. Defendant will suffer no
harm, as there appears to be no immediate or imminent danger to public safety
health or welfare through Plaintiff’s flashing his headlamps.
Pursuant to Rule 65(c), the court “may issue a preliminary injunction ... only
if the movant gives security in an amount that the court considers proper to pay the
costs and damages sustained by any party found to be wrongfully enjoined or
restrained .” Fed.R.Civ.P. 65(c). Defendant was unable to articulate any harm
that might occur if the Court were to issue a temporary injunction. The Court finds
that a bond of a nominal amount would provide adequate security.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Preliminary
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Injunction, [Doc. No. 5], is granted, and that Plaintiffs shall be required to pay a
bond of $100.00 in support thereof. A separate judgement shall issue in
accordance with this memorandum.
Dated this 3rd day of February, 2014.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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