Alkebulan, Inc. et al v. City of Columbus et al
Filing
27
OPINION AND ORDER granting in part and denying in part 17 Motion for Summary Judgment. Signed by Magistrate Judge Norah McCann King on 9/22/2015. (pes)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALKEBULAN, INC., et al.,
Plaintiffs,
vs.
Civil Action 2:13-cv-1249
Magistrate Judge King
CITY OF COLUMBUS, et al.,
Defendants.
OPINION AND ORDER
This is a civil rights action under 42 U.S.C. § 1983 in which
plaintiffs, a corporation that sponsors the Juneteenth Festival in
Columbus, Ohio, and its chief executive officer who organizes that
event, allege that defendant Bela Bernhardt, a Lieutenant with the
Columbus Police Department, improperly cancelled portions of the 2013
event, and that the fees associated with the event were nevertheless
charged to plaintiffs.1 As a result, plaintiffs allege, they have
suffered personal loss and a deprivation of their rights under the
First Amendment as well as their rights to due process and equal
protection.
Plaintiffs also assert supplemental state law claims of
1
Plaintiffs also originally claimed that they were deemed ineligible to apply
for a permit for the 2014 Juneteenth Festival because they had not paid all
fees owed in connection with the 2013 Juneteenth Festival, and that a permit
for the 2014 Juneteenth Festival had been denied in retaliation for
plaintiffs’ complaints to city officials about the closing of the 2013
Juneteenth Festival. Complaint, ¶¶ 36-39. However, defendants offer
uncontroverted evidence that the 2014 Juneteenth Festival was held on June
20-22, 2014, in a different venue. Nicholson Affidavit, ¶ 10. Plaintiffs do
not dispute this fact, nor do they further address any claims in connection
with the 2014 Juneteenth Festival. Defendants are therefore entitled to
summary judgment on these claims and the Court will not further address these
claims.
1
breach of contract and promissory estoppel.
Named as defendants are
the City of Columbus (“the City”), the City of Columbus Division of
Police, Lieutenant Bela Bernhardt, and the City of Columbus Department
of Recreation and Parks.2 The City asserts a counterclaim for breach of
contract.
With the consent of the parties, see 28 U.S.C. § 636, this
matter is before the Court on Defendants’ Motion for Summary Judgment,
ECF 17 (“Motion for Summary Judgment”).
Plaintiff has filed a
response to the Motion for Summary Judgment, Plaintiffs Alkebulan,
Inc. et al.’s Motion Contra Defendants’ City of Columbus, Division of
Police, et al.’s Motion for Summary Judgment, ECF 23 (“Plaintiffs’
Response”), and defendants have filed a reply, Defendants’ Reply to
Plaintiffs’ Memorandum Contra Defendants’ Motion for Summary Judgment,
ECF 26 (“Reply”).
For the reasons that follow, the Motion for Summary
Judgment is GRANTED in part and DENIED in part.
I.
BACKGROUND AND EVIDENCE OFFERED BY THE PARTIES
A person or organization wishing to use a Columbus public park
for a special event must apply for a “Special Events Permit.”
Affidavit of Jason T. Nicholson, ¶ 2, attached as Exhibit A to the
Motion for Summary Judgment (“Nicholson Affidavit”).3
A Special Events
Permit applicant who collects money in a city park must, among other
requirements, “hire a minimum of 1 police officer.
Columbus Police
will determine how many officers are required for [the] event.”
City
of Columbus Special Events Application, p. 3, attached as Exhibit A-1
to the Nicholson Affidavit.
Columbus Police Department officers who
are hired and paid by a third party to provide security at events,
2
The Complaint erroneously refers to this defendant as the “City of Columbus
Department of Parks and Recreation.”
3
Mr. Nicholson is the Special Events Coordinator for the Columbus Department
of Recreation and Parks. Id. at ¶ 1.
2
including festivals, are known as “special duty officers.”
Affidavit
of Lt. Bela A. Bernhardt, ¶ 6, attached as Exhibit B to the Motion for
Summary Judgment (“Bernhardt Affidavit”); Affidavit of Sgt.
Christopher Odom, ¶ 4, attached as Exhibit D to the Motion for Summary
Judgment (“Odom Affidavit”).
A Special Events Permit applicant also
accepts responsibility “to meet all city rules and regulations[.]”
Exhibit A-1, p. 4.
Once the application for a Special Events Permit
is approved, the permit is issued.
Nicholson Affidavit, ¶ 2.
Plaintiff Mustafaa Shabazz is the founder and Chief Executive
Officer of plaintiff Alkebulan, Inc. (“Alkebulan”), a non-profit
corporation with its principal place of business in Columbus, Ohio.
Complaint, ECF 1, ¶¶ 4-5.4
Alkebulan has been the primary sponsor of,
and plaintiff Shabazz the organizer of, the Juneteenth Festival in
Columbus, Ohio for the past twenty-three years.
Id. at ¶¶ 12-13.
The
Juneteenth Festival is a cultural festival, commemorating June 19,
1865, “which is considered the date when the last slaves in America
were freed in Texas.”
Id. at ¶ 12.
Plaintiff Shabazz applied for a
Special Events Permit in order to hold the Juneteenth Festival in
Franklin Park, a large and unfenced area, on June 14, 15, and 16, 2013
(“the 2013 Juneteenth Festival”).
Nicholson Affidavit, ¶ 5; Exhibit
A-1, attached thereto (“2013 Special Events Application”); Odom
Affidavit, ¶ 7; Bernhardt Affidavit, ¶ 17.
His application was
approved and a Special Events Permit was issued to plaintiff Shabazz
4
The Complaint is not executed under penalty of perjury and therefore has no
evidentiary value on summary judgment. See id.; Bennett v. Schroeder, No.
02-3562, 99 F.App’x 707, at *717 (6th Cir. May 27, 2004) (“[A]t the summary
judgment stage after the close of discovery, Plaintiff can no longer simply
rely on the allegations of his complaint; rather, he must present affirmative
evidence supporting his allegations in order to withstand summary judgment.”)
(internal quotation marks omitted)). The Court includes these unverified but
undisputed allegations regarding the identity of the plaintiffs and the
description of the Juneteenth Festival simply for background purposes.
3
for the 2013 Juneteenth Festival.
Nicholson Affidavit, ¶ 6; Exhibit
A-2, attached thereto (“2013 Special Events Permit”). Hours of
operation were from 1:00 p.m. to 9:00 p.m. on each of the three (3)
days of the festival. Incident Action Plan, Exhibit 4, p. 2, attached
to Plaintiffs’ Response.5
Defendant Bernhardt prepared an Incident Action Plan, which
addressed, inter alia, the security needs for the 2013 Juneteenth
Festival. Id. Plaintiff Shabazz hired Columbus Police officers for the
2013 Juneteenth Festival, including thirteen to sixteen special duty
officers who, wearing their Columbus Police Department uniforms,
worked on June 15, 2013.
Id. at 3; Odom Affidavit, ¶ 4.
Sergeant
Christopher Odom, who is African-American and who “previously worked
at numerous festivals in Columbus, including the Juneteenth Festival,”
supervised these special duty officers.
Odom Affidavit, ¶¶ 1, 3, 4,
9.
Approximately ten Gang Unit officers from the Columbus Police
Department were also present on June 15, 2013.
Id.; Affidavit of Sgt.
Chantay M. Boxill, ¶ 7, attached as Exhibit C to the Motion for
Summary Judgment (“Boxill Affidavit”).
Sergeant Boxill, who is also
African-American and who “worked every festival in Columbus since the
summer of 2005, including, but not limited to, the Asian Festival,
ComFest, the Juneteenth Festival, the Ribfest and the fair,”
supervised the Gang Unit officers.6
Boxill Affidavit, ¶¶ 1, 5-7, 14;
5
The 2013 Special Events Application identified the
festival as 6:00 a.m. to 11:00 p.m. for each of the
festival. 2013 Special Events Application, p. 2.
6
Sergeant Boxill has been in charge of the Columbus
Criminal Intelligence Unit, which includes the Gang
Boxill Affidavit, ¶ 4.
4
hours of operation for the
three (3) days of the
Police Department’s
Unit, since May 2005.
Bernhardt Affidavit, ¶ 7.7
In addition, on-duty Columbus police officers set up a “command
center” in the parking lot behind East High School, which is located
on East Broad Street across from Franklin Park.
¶ 8.
Bernhardt Affidavit,
“The purpose of the command center was to have on-duty personnel
available in case assistance was needed inside the park, and to
respond to incidents that might occur outside the park.”
Id.
Defendant Bernhardt was in charge of on-duty and special duty officers
who were working the 2013 Juneteenth Festival.
Id. at ¶¶ 1, 5.
On
June 15, 2013, defendant Bernhardt was on duty for his regular shift
and was the Incident Commander for the Juneteenth Festival.
Id. at ¶
5.
Throughout the afternoon of Saturday, June 15, 2013, many known
and suspected gang members were observed at the Juneteenth Festival,
and a number of fights occurred, Boxhill Affidavit, ¶¶ 7, 8; Odom
Affidavit, ¶ 5, resulting in “multiple uses of mace by special duty
officers, the deployment of a Taser, and four arrests.”
Bernhardt
Affidavit, ¶ 9. Because of the fights that had occurred, “all of the
Gang Unit officers changed from plain clothes into tactical gear. . .
.” Boxill Affidavit, ¶ 7.
At approximately 7:00 p.m., a fifteen year-old gang member shot
an eleven year-old boy in the leg (“the shooting”).
Boxill Affidavit, ¶ 9; Odom Affidavit, ¶ 5.
Id. at ¶ 10;
The shooting occurred
near the Adventure Center in the middle of the 2013 Juneteenth
7
In addition to these special duty officers and regular on-duty officers from
the Columbus Police Department, plaintiff Shabazz provided approximately six
private security officers. Bernhardt Affidavit, ¶ 7.
5
Festival venue; the victim was not the shooter’s intended target.
Id.
Approximately twenty uniformed police officers were within roughly 100
feet of the scene of the shooting and Sergeant Odom was approximately
twenty yards from the scene.
Bernhardt Affidavit, ¶ 11; Boxill
Affidavit, ¶ 12; Odom Affidavit, ¶ 5. Fights broke out after the
shooting, and more than 200 teenagers were removed from the park.
Boxill Affidavit, ¶ 10; Odom Affidavit, ¶¶ 5-6.
Defendant Bernhardt arrived at the scene of the shooting between
7:02 p.m. and 7:04 p.m.
Bernhardt Affidavit, ¶ 11.
He spoke with
Sergeant Boxill, who advised that the shooting was gang-related and
that there would likely be retaliation the next day at the 2013
Juneteenth Festival.
Boxill Affidavit, ¶ 11.
Asked by defendant
Bernhardt for her recommendation, Sergeant Boxill “recommended that
the festival be shut down for the remainder of Saturday evening [June
15, 2013] and all day Sunday [June 16, 2013].”
Id.
Sergeant Boxill
was of the opinion that “the public was at risk of harm if the
festival remained open.”
Id.
Specifically, she believed that “the
fact that this shooting occurred inside the festival venue (and with
numerous police officers in near proximity) increased the risk to
festival attendees and vendors if it were allowed to remain open.”
Id. at ¶ 12.
Defendant Bernhardt also spoke with Sergeant Odom following the
shooting.
Bernhardt Affidavit, ¶ 15; Odom Affidavit, ¶ 6.
Sergeant
Odom likewise recommended that the 2013 Juneteenth Festival be closed
for the remainder of July 15, 2013 and for the following day as well.
Odom Affidavit, ¶ 6.
Sergeant Odom based his recommendation on the
violence that he had observed leading up to the shooting as well as on
6
statements of attendees heard by him before and after the shooting.
Id.
Sergeant Odom concluded “that there would likely be retaliation
from a rival gang the following day.
Gangs were also using
diversionary tactics such as fights in different locations to disperse
police.”
Id.
Sergeant Odom also believed that the violence that he
had witnessed, coupled with the fact that the police could not control
who was coming into the large and unfenced Franklin Park venue, posed
a risk to attendees if the 2013 Juneteenth Festival were to open on
Sunday, June 16, 2013.
Id.
Based on his training and experience as well as on the
recommendations of Sergeants Boxill and Odom, defendant Bernhardt
“believed that there was a high likelihood of gang retaliation” at the
2013 Juneteenth Festival on Sunday, June 16, 2013, placing the safety
of attendees and citizens near Franklin Park at risk.
Affidavit, ¶ 16.
Bernhardt
He also believed that “it would be impossible to
provide adequate security for the remainder of the festival[.]”
Id.
According to defendant Bernhardt, “it would not matter how many police
officers were present if attendees were engaging in such brazen acts”
like the shooter’s firing of a gun in near proximity to multiple
police officers.
Id.
Based on these concerns for the risk to public
safety, defendant Bernhardt decided to close the Juneteenth Festival
on Sunday, June 16, 2013.
Id. at ¶ 18.
Plaintiffs acknowledge that, in addition to the special duty
officers and “because of past history, and the ‘festival’ being held
in the crossroads of gang activity,” the City added 11 police
personnel to the security detail. Plaintiffs’ Response, p. 2.
Moreover, plaintiffs do not dispute “[t]he facts surrounding the
7
‘incidents’ of fights and disturbances during the Juneteenth Festival
which took place on Saturday, June 15, 2013. . . .” Id. However,
plaintiffs have a “different perception of the ‘actual violence’ and
severity of the violence . . . between what was observed by the
Defendants and what actually occurred at the venue.” Id. at p. 3.
Plaintiffs take the position that defendants “overestimated” the
danger to the public and characterize the closure of the 2013
Juneteenth Festival on Saturday as “an overreaction” to the shooting.
Id. at pp. 6-7, 9. Moreover, they argue that the closure of the event
on Sunday “was based solely on conjecture and speculation.” Id. at 9.
In support of their position, plaintiffs present the affidavits of a
number of attendees at the 2013 Juneteenth Festival. For example, in
the hour or two prior to the shooting, Eddie B. Sands, Jr., one of the
performers at the Amphitheater, observed that “[t]he main stage had
gospel music playing and a ‘family atmosphere’ existed.”
See
Affidavit of Eddie B. Sands, Jr., ¶ 4, attached as Exhibit 5 to
Plaintiffs’ Response (“Sands Affidavit”).
Another observer confirms
this “family atmosphere” near and around the Amphitheater and
Adventure Center prior to the shooting.
See Affidavit of Michele
Renee Hagans, ¶¶ 2-3 (averring that she worked with the Health &
Natural Hair Expo exhibit inside the Adventure Center; that she took
breaks to view the crowd in front of the Adventure Center; and that
crowds inside the Adventure Center were “mostly” “families”), attached
as Exhibit 7 to Plaintiffs’ Response (“Hagans Affidavit”).8
8
Although
Plaintiffs also proffer the Affidavit of Phillip R. Coldwell, which is
attached to Plaintiffs’ Response (“Coldwell Affidavit”). However, because
8
many youths engaged in horseplay, including around the Adventure
Center, their behavior was not intimidating or threatening to
volunteers.
Id. at ¶¶ 5-6; Affidavit of Ayran Johnson, ¶¶ 3, 5,
attached as Exhibit 8 to Plaintiffs’ Response (“Johnson Affidavit”).
See also Sands Affidavit, ¶¶ 3-4 (averring that, from his vantage as a
performer on the Amphitheater stage, the crowd was “made up of adults
and young adults and children in equal measure” and that “there were
more adults than teenagers gathered” and that the crowd was “very warm
and welcome to my performance”).
Around the Amphitheater, there were
no fights, no signs of panic, and no gang colors on display.
Affidavit, ¶¶ 3-4.
Sands
At the time of and following the shooting, Mr.
Sands observed that the crowd did not panic and that his audience
remained in their seats.
Id. at ¶¶ 5, 7.
Another volunteer present
when the shooting occurred observed no panic or hysteria following the
shooting.
Johnson Affidavit, ¶¶ 3-4.
Plaintiff Shabazz denies that
any police officer advised him that a concern for gang retaliation and
public safety necessitated the closing of the 2013 Juneteenth Festival
for the remainder of Saturday and all day Sunday.
See sworn statement
of Mustafaa Shabazz executed on April 8, 2015, pp. 1-2 (“Plaintiff
Shabazz’s Declaration”).
Some of plaintiffs’ affiants also offer their opinion that
defendant Bernhardt’s decision to end the 2013 Juneteenth Festival was
racist. See, e.g., Sands Affidavit, ¶ 9 (averring “considerations of
the Coldwell Affidavit is unsigned and undated, see id. at PAGEID#:213, the
Court will not consider its assertions. See, e.g., Fox v. Mich. State Police
Dep’t, No. 04-2078, 173 Fed. Appx. 372, at 375 (6th Cir. 2006) (affirming
decision to disregard documents that “were neither sworn nor certified, were
not properly authenticated and were therefore inadmissible in evidence”).
9
race and color had some role in the decision” to close the 2013
Juneteenth Festival); Shabazz Declaration, ¶ 5 (averring that
defendant Bernhardt’s actions were “discriminatory, racist, unequal
and unfair”); Hagans Affidavit, ¶ 7 (“I believe, know, and think that
the Festival was shut down because it was an African American event”);
Johnson Affidavit, ¶ 8 (“I believe that race was a factor in the
premature termination of the Juneteenth Festival.”)).
Some of these affiants also express their opinion that the law
enforcement officers working the 2013 Juneteenth Festival were
disengaged or were ineffective prior to the shooting.
See Hagans
Affidavit, ¶ 4 (“[P]olice did nothing to control the crowds to keep
the younger crowds from congregating behind the main stage.”), ¶ 6
(detailing an incident where nearby police officers failed to speak to
or otherwise engage a group of teens engaged in horseplay); Johnson
Affidavit, ¶ 5 (“[T]he police were outnumbered in the park.
In my
opinion, some officers appeared to be disengaged from their roles
and/or duties at the festival.”).
II.
STANDARD
The standard for summary judgment is well established.
This
standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part:
The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
In making this determination, the evidence
must be viewed in the light most favorable to the non-moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
Summary judgment
will not lie if the dispute about a material fact is genuine, “that
10
is, if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.”
477 U.S. 242 (1986).
Anderson v. Liberty Lobby, Inc.,
However, summary judgment is appropriate if the
opposing party fails to make a showing sufficient to establish the
existence of an element essential to that party’s case and on which
that party will bear the burden of proof at trial.
Catrett, 477 U.S. 317, 322 (1986).
Celotex Corp. v.
The mere existence of a scintilla
of evidence in support of the opposing party’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the opposing party.
Anderson, 477 U.S. at 251.
The party moving for summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of material fact.
323.
Catrett, 477 U.S. at
Once the moving party has met its initial burden, the burden
then shifts to the nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.”
Anderson, 477 U.S.
at 250 (quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party
must present evidence that creates a genuine issue of material fact
making it necessary to resolve the difference at trial”).
“Once the
burden of production has so shifted, the party opposing summary
judgment cannot rest on the pleadings or merely reassert the previous
allegations.
It is not sufficient to ‘simply show that there is some
metaphysical doubt as to the material facts.’”
Glover v. Speedway
Super Am. LLC, 284 F. Supp.2d 858, 862 (S.D. Ohio 2003)(citing
11
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).
Instead, the non-moving party must support the assertion
that a fact is genuinely disputed.
Fed. R. Civ. P. 56(c)(1).
In ruling on a motion for summary judgment “[a] district court is
not ... obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party’s claim.”
Glover, 284 F. Supp.2d at 862 (citing InteRoyal Corp. v. Sponseller,
889 F.2d 108, 111 (6th Cir. 1989)).
Instead, a “court is entitled to
rely, in determining whether a genuine issue of material fact exists
on a particular issue, only upon those portions of the verified
pleadings, depositions, answers to interrogatories and admissions on
file, together with any affidavits submitted, specifically called to
its attention by the parties.”
Id.
See also Fed. R. Civ. P.
56(c)(3).
III. CLAIMS AGAINST COLUMBUS DIVISION OF POLICE AND COLUMBUS
DEPARTMENT OF RECREATION AND PARKS
The parties agree that the claims against the Columbus Division
of Police and Columbus Department of Recreation and Parks should be
dismissed.
Motion for Summary Judgment, pp. 6-7; Plaintiffs’
Response, p. 5; Reply, p. 1.
IV.
FIRST AMENDMENT CLAIMS
Plaintiffs allege that their rights under the First Amendment
were violated when the 2013 Juneteenth Festival was closed. Complaint,
¶¶ 31-37.
Plaintiffs specifically allege that the “closure of the
Juneteenth Festival was undertaken for the express purpose of
preventing a group of primarily African-American individuals from
peaceably assembling[.]”
Id. at ¶ 37.
12
The First Amendment to the United States Constitution provides,
in relevant part, that “Congress shall make no law . . . abridging the
freedom of speech, . . . or the right of the people peaceably to
assemble[.]”
U.S. Const. amend. I.
The freedoms guaranteed by the
First Amendment are, of course, protected by the Fourteenth Amendment
from invasion by state and local governments. Edwards v. South
Carolina, 372 U.S. 229, 235 (1963)(and cases cited therein). Courts
considering free speech claims9 under the First Amendment employ a
three-step analysis.
See, e.g., Saieg v. City of Dearborn, 641 F.3d
727, 734 (6th Cir. 2011) (citing Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., 473 U.S. 788, 797 (1985)).
“The first step is to
determine whether the plaintiff’s conduct is protected speech.”
Id.
“The second step is to identify the nature of the forum, because the
extent to which the Government may limit access depends on whether the
forum is public or nonpublic.”
omitted).
Id. (internal quotation marks
Finally, the third step of the analysis examines “‘whether
the justifications for exclusion from the relevant forum satisfy the
requisite standard.’”
Saieg, 641 F.3d at 735 (quoting Cornelius, 473
U.S. at 797).
In the case presently before the Court, defendants concede for
purposes of summary judgment that plaintiffs were engaged in protected
9
Like the constitutional right to freedom of speech, the constitutional right
to freedom of assembly is limited by the government’s right to impose proper
considerations of time, place, and manner. Cox v. Louisiana, 379 U.S. 536,
558 (1965); Cox v. State of New Hampshire, 312 U.S. 569, 576 (1941). The
Court will therefore not separately analyze plaintiffs’ claims based on the
constitutional guarantees of freedom of assembly. See International Soc. for
Krishna Consciousness, Inc. v. Evans, 440 F.Supp. 414, 421 (S.D. Ohio 1977).
13
speech.
Motion for Summary Judgment, p. 8.
Defendants contend that
the venue, Franklin Park, is a public forum upon which the government
may impose restrictions.
Id.
Plaintiffs do not specifically address
the character of the forum, but concede that some restrictions may be
imposed in the forum.
Plaintiffs’ Response, pp. 6-7.
The forum in this case is the City’s Franklin Park, a traditional
public forum.
See, e.g., Putnam Pit, Inc. v. City of Cookeville, 221
F.3d 834, 842 (6th Cir. 2000) (“Traditional public fora, such as
streets, sidewalks, and parks, are places which by long tradition or
by government fiat have been devoted to assembly and debate.”)
(internal citations omitted).
The type of restriction at issue,
whether content-based or content-neutral, determines the level of
scrutiny applied in a traditional public forum.
See, e.g., Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). A
content-based restriction may be enforced only if it is shown to be
“necessary to serve a compelling state interest . . . that is narrowly
drawn to achieve that end.”
Id. at 45.
On the other hand, content-
neutral “time, place, and manner” restrictions are enforceable if they
“are narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication.”
Id.
See also Saieg, 641 F.3d at 734 (“If a rule is ‘content-neutral,
[then] the appropriate test is intermediate scrutiny,’ even when the
rule governs speech in a traditional public forum.”) (quoting PhelpsRoper v. Strickland, 539 F.3d 356, 361-62 (6th Cir. 2008)).
Content-neutrality
14
“Government regulations of speech are content neutral if they are
‘justified without reference to the content or viewpoint of the
regulated speech.’”
Id. at 735 (quoting Christian Legal Soc’y Chapter
of the Univ. of Cal. v. Martinez, 561 U.S. 661, 696 (2010)).
See also
Hill v. Colorado, 530 U.S. 703, 719 (2000) (“The principal inquiry in
determining content neutrality, in speech cases generally and in time,
place, or manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the
message it conveys.”) (quoting Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989)) (internal quotation marks and emphasis omitted).
In this case, a City ordinance authorizes “any law enforcement
officer [to] close or restrict to public use and evacuate a park,
facility or area when necessitated by reason of and in the interest of
the public health, safety, welfare, maintenance or any other reasons
deemed necessary for the public interest.”
Columbus, Ohio Code of
Ordinances ch. 919, § 919.05(B) (eff. 7/18/11) (“the ordinance”).
Neither party argues that the ordinance regulates the use of parks
based on the type of speech at issue. The ordinance does not seek to
exclude or limit the use of its parks based on the content of
messages or on the substance of viewpoints.
Similarly, the City’s
interest in, inter alia, public safety does not refer to the content
of speech.
See, e.g., Ward, 491 U.S. at 791 (“A regulation that
serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or
messages but not others.”).
The Court therefore concludes that the
ordinance is content neutral on its face.
15
Narrowly tailored to serve a significant government interest
“To be narrowly tailored, a restriction on speech must not
‘burden substantially more speech than is necessary to further the
government’s legitimate interests.’”
Bays v. City of Fairborn, 668
F.3d 814, 821 (6th Cir. 2012)(quoting Ward, 491 U.S. at 799).
Although
a restriction “‘may satisfy the tailoring requirement even though it
is not the least restrictive or least intrusive means of serving the
[City’s] goal,’ it must not be ‘substantially broader than
necessary.’”
Id. (quoting Hill, 530 U.S. at 726 and Ward, 491 U.S. at
800) (internal citations omitted).
See also Thomas v. Chicago Park
Dist., 534 U.S. 316, 323 (2002) (“Even content-neutral time, place,
and manner restrictions can be applied in such a manner as to stifle
free expression.”).
In the case presently before the Court, plaintiffs do not argue
that the ordinance is itself unconstitutional.
Indeed, plaintiffs
agree that the ordinance “allows the police to close the park
[Franklin Park] in the interest of public safety.”
Response, p. 6.
Plaintiffs’
Clearly, cities and states have a significant
interest in public safety.
See, e.g., Saieg, 641 F.3d at 736 (stating
that, “[i]n appropriate contexts,” threats to public safety, inter
alia, “can be [a] substantial” interest); American-Arab AntiDiscrimination Comm. v. City of Dearborn, 418 F.3d 600, 612 (6th Cir.
2005) (recognizing a city’s significant interest in, inter alia,
public safety).
However, “[t]he defendants must do more . . . than ‘assert []
interests [that] are important in the abstract.’”
16
Saieg, 641 F.3d at
736-37 (quoting Turner Broad Sys., Inc. v. F.C.C., 512 U.S. 622, 664
(1994)).
The interest or interests must be “real” as opposed to
“conjectural.”
Id. at 737.
“‘Mere speculation about danger’ is not
an adequate basis on which to justify a restriction of speech.”
Id.
at 739 (quoting Bay Area Peace Navy v. United States, 914 F.2d 1224,
1228 (9th Cir. 1990)).
Plaintiffs do not disagree that violence occurred in the festival
venue on the evening of Saturday, June 15, 2013; they argue that the
decision to close the festival for the remainder of Saturday was “an
overreaction to one event that disrupted an otherwise peaceful
festival” and that the decision to close the festival for the entire
next day was “based upon pure conjecture that because an isolated
instance of violence occurred on Saturday then it would automatically
roll over to Sunday.” Plaintiffs’ Response, p. 9.
. . . [N]o more than three shots were fired at the festival
and only one (1) shot hit a victim. The [police] report
demonstrates the victim was not the intended victim of the
shooting by the shooter, . . . There is no evidence in the
report that the intended victim . . . was shot even though
. . . the intended target [] was never hit by [the
shooter’s] gunshots. Furthermore, the shooter was
apprehended within minutes of the shooting, discarded his
gun, and attempted to blend into the crowd at the pavilion.
Nothing in the report indicates scattered gunshots,
hostages being taken, or the general public being in
danger. The violence the Defendants’ spoke to was an
isolated incident that involved two (2) juveniles and a
juvenile that was mistakenly shot. The shooting was brought
under control quickly and despite police assessments of
continued violence there is no record of this occurring.
Plaintiffs’ Response, p. 7.
This Court disagrees with plaintiffs’ contention that the
decision to close the remainder of the 2013 Juneteenth Festival was an
overreaction based on mere conjecture and speculation as to the danger
17
posed to the public. First, the evidence of disturbances throughout
the day and prior to the shooting - including the use of mace and a
Taser, a number of arrests, and police officers needing to change from
plain clothes to tactical gear - is uncontroverted by plaintiffs.10
Furthermore, the observations of lay persons untrained in gang
activity and crowd control, and based on very narrow vantages of
observation, shed little light on and offer even less insight into the
significance of the events that indisputably occurred throughout
Franklin Park on Saturday. It is uncontroverted that defendant
Bernhardt’s decision to shut down the remainder of the 2013 Juneteenth
Festival was based not only on his own observations and experience,
but also on the recommendations of Sergeants Boxill and Odom, AfricanAmerican police officers of long service and training, who concluded
that to permit the festival to continue would pose a risk of harm to
the attendees and vendors. Defendant Bernhardt explained that the
interest of public safety required the closure of the festival even on
Sunday:
[I]t was the opinion of the gang unit . . . that this was
more . . . likely than not a gang-related shooting; and in
gang-related shootings, there is a high probability of a
retaliatory attack.
With the knowledge of having the same event where the same
group of individuals would be allowed to congregate, we
would be giving them the opportunity to have that
availability for retaliation.
Deposition of Bela A. Bernhardt, pp. 26-27, ECF 22 (“Bernhardt
Deposition”).
10
The Progress of Investigation, Exhibit 3 attached to Plaintiffs’ Response,
relates only to the investigation of the shooting, and cannot be read as
evidence that no other incidence of violence occurred at the 2013 Juneteenth
Festival.
18
Based on the uncontroverted evidence presented, this Court
concludes that the decision to close the 2013 Juneteenth Festival was
“narrowly tailored,” and was not “‘substantially broader than
necessary’” to further the City’s legitimate interest in assuring the
safety of the public. See Bays, 668 F.3d at 821 (quoting Hill, 530
U.S. at 726 and Ward, 491 U.S. at 800).
Alternative channels of communication
Having determined that the decision to close the remainder of the
2013 Juneteenth Festival was narrowly tailored and not substantially
broader than necessary to serve the City’s legitimate interest in
protecting the public, the Court must also consider whether that
decision provided alternative channels of communication to plaintiffs.
See Ward, 491 U.S. 791. Under the facts of this case, consideration of
the “narrowly tailored” element of the First Amendment analysis is
closely intertwined with the “alternative channels of communication”
element of the analysis. Plaintiffs seem to suggest that, in order to
satisfy this element, defendants were obligated to keep the festival
open. See Plaintiffs’ Response, p. 9. Defendant Bernhardt testified
that he considered – but rejected – the possible reopening of the
festival on Sunday. First, it was unclear whether plaintiffs could
hire additional special-duty officers on such short notice. Bernhardt
Deposition, p. 36. Moreover, the unsecured venue selected by
plaintiffs, which permitted unrestricted access to the festival,
rendered security particularly difficult. Id. pp. 36-37. Sergeant Odon
advised defendant Bernhardt following the shooting that the venue
19
could not be secured. Id. p. 36. Even increasing the number of police
personnel could not assure the safety of attendees:
[W]hen an incident is able to be done in the presence of 20
uniformed officers, that brazen of an act, I don’t know
what number you would have to give me to tell me enough
officers would be there.
Id. In short, having concluded that the closing of the remainder of
the 2013 Juneteenth Festival was narrowly tailored to further the
City’s legitimate interest in assuring the safety of the public, and
was not substantially broader than necessary to serve that interest,
the Court also concludes that keeping the festival open was not a
viable alternative channel of communication.
However, it cannot be overlooked that the 2013 Juneteenth
Festival was intended to run for three (3) days and in fact lasted
almost two full days. Under the particular facts of this case, this
Court is persuaded that the decision to close the remainder of the
2013 Juneteenth Festival did not impermissibly foreclose plaintiffs’
channels of communication.
V.
FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS CLAIM
The Complaint asserts a claim of denial of procedural due process
in violation of the Fourteenth Amendment to the United States
Constitution and specifically invokes “a vested property interest in
operating all three days of the Juneteenth event.”
Complaint, ¶ 45.11
Defendants challenge plaintiffs’ claim to a constitutionally protected
property interest arising from the issuance of the special events
11
The Complaint also refers in passing to the Fifth Amendment but does not
otherwise invoke this amendment. See id. Accordingly, the Court presumes
that plaintiffs intend to assert their claims against these non-federal
defendants under only the Fourteenth Amendment.
20
permit and contend that, in any event, plaintiffs have not shown that
the City failed to provide adequate post-deprivation remedies.
Motion
for Summary Judgment, pp. 10-12.
Plaintiffs’ Response does not address the procedural due process
claim asserted in the Complaint.
See generally Plaintiffs’ Response.
Where plaintiffs rest on the allegations in the unverified Complaint
and have failed to come forward with evidence or specific facts
showing a genuine issue of material fact, summary judgment is
appropriate.
See, e.g., Anderson, 477 U.S. at 250 (“[W] hen a properly
supported motion for summary judgment is made, the adverse party ‘must
set forth specific facts showing that there is a genuine issue for
trial.’”) (quoting former Fed. R. Civ. P. 56(e)); Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989) (“In other words,
the movant could challenge the opposing party to ‘put up or shut up’
on a critical issue.
After being afforded sufficient time for
discovery . . . if the respondent did not ‘put up,’ summary judgment
was proper.”).
In the absence of any apparent intent on plaintiffs’ part to
pursue this claim, the Court concludes that plaintiffs have abandoned
their procedural due process claim.
VI.
FOURTEENTH AMENDMENT EQUAL PROTECTION CLAIM
Plaintiffs allege that defendants violated their rights under the
Equal Protection Clause when defendants shut down the 2013 Juneteenth
Festival. Complaint, ¶ 50.
The Equal Protection Clause of the
Fourteenth Amendment provides that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.”
21
U.S.
Const., amend. XIV, Sec. 1.
In order to prevail on an equal
protection claim, “a plaintiff must adequately plead that the
government treated the plaintiff disparately as compared to similarly
situated persons and that such disparate treatment either burdens a
fundamental right, targets a suspect class, or has no rational basis.”
Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379
(6th Cir. 2011).
Suspect classifications subject to heightened
scrutiny include classifications based on race.
Doe v. Mich. Dep’t of
State Police, 490 F.3d 491, 503 (6th Cir. 2007).
The three officers who participated in the decision to close the
festival, two of whom are themselves African-American, expressly deny
that the closure of the 2013 Juneteenth Festival was based on
considerations of race. Bernhardt Affidavit, ¶¶ 1-2, 14-18, 20-21;
Boxill Affidavit, ¶¶ 1-5, 10-14; Odom Affidavit, ¶¶ 1-3, 6-9. Rather,
the decision reflected their considered opinions that it would be
impossible to provide adequate security, no matter the number of
police officers present, throughout the remainder of the 2013
Juneteenth Festival.
Bernhardt Affidavit, ¶ 16; Odom Affidavit, ¶ 7.
Cf. Boxill Affidavit, ¶¶ 11-12.
In response, plaintiffs offer the affidavits of certain
participants in the 2013 Juneteenth Festival, who aver that the
decision to close the festival was motivated by race. Sands Affidavit,
¶ 9; Shabazz Declaration, ¶ 5; Hagans Affidavit, ¶ 7; Johnson
Affidavit, ¶ 8. In the view of this Court, these affidavits – which
are wholly conclusory and unsupported by any factual assertion or
22
corroboration - are insufficient to establish a claim of race
discrimination.
However, plaintiffs also characterize defendants’ decision as
based on race “because in similar situations non-African-American
cultural events were not closed.”
Plaintiffs’ Response, pp. 9-11. The
Court construes this allegation as asserting an equal protection claim
based on selective enforcement of the ordinance authorizing the
closure of city parks because of, inter alia, threats to public
safety. “In order to make out an equal protection claim on the basis
of selective enforcement, a plaintiff must demonstrate that someone
similarly situated but for the illegitimate classification used by the
government actor was treated differently.”
Boone v. Spurgess, 385
F.3d 923, 932 (6th Cir. 2004).
In support of this claim, plaintiffs point to the 2012 Asian
Festival, which was also held at Franklin Park. See Exhibit 9,
attached to Plaintiffs’ Response. Apparently, “500-1000 gang
members/trouble makers . . . had made their way into the park and were
fighting.” Id. at PAGEID#: 252. The 2012 Asian Festival was shut down
for the evening and the “troublemakers” were escorted out of the park.
Id. “[S]everal shots rang out” as the crowd “made it north of the
park.” Id. “Two handguns were recovered at the scene and 3 persons
were tak[en] into custody.” Id. Apart from an injury suffered by a
police officer during a foot chase, “[t]here were no other injuries
inside the park with any other festival participants.” Id. The
festival resumed the following day. Id. At the time, police personnel
attached significance to the fact that “[w]e were very lucky to not
23
have this gunfire occur inside the park during the festivities.” Id.
at PAGEID#: 253.
Of course, this was not the case with the 2013 Juneteenth
Festival, which involved not only a shooting within the venue but also
serious injury to a bystander. This incident, defendant Bernhardt
avers, “was a much more serious matter and caused much greater
security concerns for the safety of the public.” Bernhardt Affidavit,
¶ 21. Because of this distinction, defendants contend that the 2013
Juneteenth Festival cannot properly be compared to the 2012 Asian
Festival. This Court agrees and concludes that defendants are entitled
to summary on this claim.
VII. QUALIFIED IMMUNITY
Defendant Bernhardt claims the protections of the doctrine of
qualified immunity in defense against plaintiffs’ constitutional
claims.
Motion for Summary Judgment, pp. 14-16; Reply, p. 8.
This
defense provides that “‘governmental officials performing
discretionary tasks generally are shielded from liability from civil
damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would
have known.’”
Meyers v. City of Cincinnati, 979 F.2d 1154, 1156 (6th
Cir. 1992) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
There are two elements in a qualified immunity analysis: whether “the
facts alleged show the officer’s conduct violated a constitutional
right,” and whether that right was “clearly established.” Saucier v.
Katz, 533 U.S. 194, 201-02 (2001).
A court may address either element
first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Because the
24
Court has concluded that defendant Bernhardt is entitled to summary
judgment on plaintiffs’ constitutional claims, the Court need not
further consider the issue of qualified immunity.
VIII. MUNICIPAL LIABILITY
Plaintiffs assert claims against the City under a theory of
municipal liability.
Complaint, ¶¶ 52-56.
A governmental entity
cannot be held liable under § 1983 on the theory of respondeat
superior simply because its employees allegedly engaged in
unconstitutional conduct.
658, 691 (1978).
Monell v. Dep’t of Soc. Servs., 436 U.S.
“Instead, it is 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 that the government as an entity is responsible
under § 1983.”
Id. at 694.
Because the Court has concluded that
defendants are entitled to summary judgment on plaintiffs’
constitutional claims, the Court need not further consider the issue
of municipal liability.
IX.
BREACH OF CONTRACT CLAIM
Plaintiffs assert a claim of breach of contract based on the 2013
Special Events Permit, the decision to shut down the 2013 Juneteenth
Festival, and the alleged failure to provide adequate security for
that event.
Complaint, ¶¶ 61-65.
The parties do not disagree that
Ohio law governs plaintiffs’ breach of contract claim.
See also
Bamerilease Capital Corp. v. Nearburg, 958 F.2d 150, 152 (6th Cir.
1992) (stating that Ohio’s choice of law rules require that contracts
be interpreted according to the “law of the place of the contract’s
25
making”).
In order to establish a breach of contract under Ohio law,
“a plaintiff must show that a contract existed, the plaintiff
performed, the defendant breached, and the plaintiff suffered
damages.”
Pavlovich v. Nat’l City Bank, 435 F.3d 560, 565 (6th Cir.
2006) (citing Wauseon Plaza Ltd. P’ship v. Wauseon Hardware Co., 156
Ohio App. 3d 575, 807 N.E.2d 953, 957 (Ohio Ct. App. 2004)).
In moving for summary judgment on this claim, defendants deny
that the 2013 Special Events Permit constituted a contract.
for Summary Judgment, p. 17.
Motion
This argument is disingenuous in light
of the City’s counterclaim for breach of contract based on the same
2013 Special Events Permit.
See Answer and Counterclaim, pp. 8-11
(citing Exhibit A (2013 Special Events Permit), attached thereto).12
See Rayess v. Educ. Comm. for Foreign Med. Graduates, 134 Ohio St. 3d
509, 513 (Ohio 2012) (“‘Essential elements of a contract include an
offer, acceptance, contractual capacity, consideration (the bargained
for legal benefit and/or detriment), a manifestation of mutual assent
and legality of object and of consideration.’”) (quoting Kostelnik v.
Helper, 96 Ohio St.3d 1, 3 (Ohio 2002)). Defendants also argue that,
even assuming the existence of a contract, there was no breach of that
contract because the City’s obligation (i.e., providing security
adequate to protect public safety) became “impossible” in the
aftermath of the shooting.
Motion for Summary Judgment, pp. 17-18;
Reply, pp. 8-9.
This Court concludes that there exists a genuine issue of
material fact on this claim. Although defendants argue that, once the
12
The City did not move for summary judgment on its counterclaim, which
remains pending.
26
shooting occurred, securing the venue became impossible, the Motion
for Summary Judgment does not address plaintiffs’ claim that
defendants acted in breach of the parties’ contract by failing to
“provide a security plan that determined the number of police officers
needed.” Complaint, ¶ 63.
Accordingly, summary judgment in favor of
defendants on plaintiffs’ breach of contract claim is unwarranted.13
X.
PROMISSORY ESTOPPEL CLAIM
Plaintiffs also assert a claim for promissory estoppel based on
the 2013 Special Events Permit, the decision to shut down the 2013
Juneteenth Festival, and the alleged failure to provide adequate
security for that event.
Complaint, ¶¶ 57-60.
However, “Ohio law is
clear that a plaintiff may not recover under the theory of unjust
enrichment or quasi-contract when an express contract covers the same
subject.”
Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 799 (6th Cir.
2009) (quoting Lehmkuhl v. ECR Corp., No. 06 CA 039, 2008-Ohio-6295,
at ¶ 55 (Ohio Ct. App. Dec. 2, 2008)).
See also Olympic Holding Co.,
L.L.C. v. Ace Ltd., 122 Ohio St. 3d 89, 96 (Ohio 2009) (“The doctrine
of promissory estoppel comes into play where the requisites of
contract are not met, yet the promise should be enforced to avoid
injustice.”) (internal quotation marks and citations omitted); Hughes
v. Oberholtzer, 162 Ohio St. 330, 335 (Ohio 1954) (“ It is generally
agreed that there cannot be an express agreement and an implied
contract for the same thing existing at the same time.”).
Because the
2013 Special Events Permit, which underlies plaintiffs’ breach of
13
The Complaint asserts the breach of contract claim against “[d]efendants.”
Complaint, ¶ 62. Although the Court has reservations as to whether such a
claim is properly asserted against defendant Barnhardt, defendants do not
present an argument on that basis.
27
contract claim, covers the same subject, plaintiffs may not also
recover on a theory of promissory estoppel. Defendants are therefore
entitled to summary judgment on this claim.
WHEREUPON, Defendants’ Motion for Summary Judgment, ECF 17, is
GRANTED in part and DENIED in part.
Specifically, as it relates to
all claims except plaintiffs’ breach of contract claim against the
defendant City and defendant Barnhardt, the motion is GRANTED. As to
those claims, Defendants’ Motion for Summary Judgment, ECF 17, is
DENIED.
The counterclaim asserted by the City of Columbus also remains
pending.
September 22, 2015
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
28
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