Galbreath v. Oklahoma City City of et al
Filing
87
ORDER granting the City's motion for summary judgment 57 ; denying plaintiff's motion for partial summary judgment 60 ; and granting defendant Parton's motion for summary judgment 61 ...see order for specifics. Signed by Honorable Joe Heaton on 10/24/2012. (lam)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ALLEN GALBREATH,
Plaintiff,
vs.
THE CITY OF OKLAHOMA CITY and
KEVIN PARTON,
Defendants.
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NO. CIV-11-1336-HE
ORDER
Plaintiff Allen Galbreath sued the City of Oklahoma City and Oklahoma City police
officer Kevin Parton, alleging his arrest for disorderly conduct pursuant to Oklahoma City
Ordinance 30-81 violated his constitutional rights. Plaintiff claims he was arrested because
“his expressions do not conform to traditional gender stereotypes or mainstream tastes.”
Amended Complaint, p. 1. He contends the disorderly conduct ordinance is unconstitutional
and asserts claims under 42 U.S.C. § 1983 and the Oklahoma Governmental Tort Claims Act.
Plaintiff seeks damages, an injunction prohibiting the City from enforcing Ordinance
30-81 and declaratory relief. He has filed a motion seeking partial summary judgment on his
claims for equitable relief and both the City and defendant Parton have filed motions for
summary judgment.
Background
The facts, taken principally from plaintiff’s deposition testimony, are essentially
undisputed.1 On June 7, 2010, plaintiff, a former ballet dancer, went to Goodholm Park in
Oklahoma City to perform his morning physical therapy exercises, which are based on ballet
moves. He was carrying a red purse or bag that contained an air pistol2 and was wearing
“[o]versized gray pants, a fitted gray T-shirt, and a red bandana” as a headband, in addition
to black high heeled shoes.3 Doc. #57, Exhibit 1, Plaintiff’s depo., p. 49. Plaintiff also was
carrying a cane, which he estimated as being at least three feet long and more than three
inches in diameter.
Due to a medical condition, it is painful for plaintiff to stand or walk. Plaintiff
testified that he has difficulty walking and it could appear as though he were stumbling. Doc.
#61, Exhibit 3, p. 79. He was working out at the park to “get [his] body back together” so
he could resume his career as a female impersonator. Doc. #61, Exhibit 3, p. 22.4 He was
“using the high-heel shoes as a form ... of physical therapy.” Id.
Once at the park Galbreath went to the bleachers, put his bag down and then walked
1
Summary judgment is appropriate only “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). To the extent a fact dispute exists, it has been resolved in plaintiff’s favor. See
Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011) (“When applying this [Rule 56]
standard, we view the evidence and draw reasonable inferences therefrom in the light most
favorable to the nonmoving party.”) (internal quotation marks omitted), cert. denied, ___ U.S. ___
(2012).
2
Plaintiff described the bag as “a red diaper bag,” which he testified he usually used to
carry his air pistol, other personal items and high heels that he would change into at the park. Doc.
#60, Exhibit 7, p. 50.
3
Plaintiff referred to the shoes as “character shoes.” Doc. #61, Exhibit 3, p. 49.
4
Exhibit 3 to Doc. #61 was filed under seal. See Doc. #65.
2
to the tennis courts to pick up some trash. He was talking on his cell phone, laughing loudly
and singing.5 At some point he performed a choreographed dance move that involved
spinning the cane in his right hand, then his left hand, then with both hands and then spinning
it up and around, above and below his head.
Plaintiff was observed by an individual, Gayle Franklin, who was at the park with her
five grandchildren. Ms. Franklin stated she heard a man yelling and looked up and saw a
person waving a big stick around, as if “he was having a sword fight with somebody.” Doc.
#61, Exhibit 4, p. 7. She said he looked and sounded drunk and was “acting like someone
was attacking him and he was protecting himself with this big long stick.6 Id. at pp. 7, 52.
She could not understand what the person was saying, but testified she was scared by the way
“he was swinging the stick and yelling and staggering.” Id. at p. 26. She had the children
hide in the slide and called 911. She told the dispatcher that she was at the park with her five
grandchildren and there was a man in high heels with a big stick and a purse, who was
“drunk or . . .” Doc. #57, Exhibit 2.
Officer Parton responded to the 911 call. The dispatcher stated: “Check for a morals
violation at 2701 North Robinson. At the park there’s supposed to be a single 87 black
male.” Plaintiff’s Exhibit 1. The number 87 is a code used by the Oklahoma City Police
Department to indicate that an intoxicated pedestrian has been reported. Doc. #71, Exhibit
5
Plaintiff disputes that he was singing loudly that morning, although he testified that he was
singing and that “I ... sing rather loud” and “I use the park as my studio, my rehearsal hall. So,
yeah, I – I kind of let it go.” Doc. #61, Exhibit 3, p. 80. His voice level does not matter here.
6
Ms. Franklin testified that the “stick” was six feet long. Doc. #61, Exhibit 4, p. 58,
3
1. The officer got to the park at 8:50 a.m., about five minutes after Galbreath had arrived.
Plaintiff, at that time, was talking on his cell phone.7 Officer Parton approached plaintiff
and, when he was approximately an arm’s length away, plaintiff raised his cane.8 The officer
asked plaintiff what he was doing and he replied “[m]y morning exercises” and started a
ballet move in response to Parton’s question. Doc. #61, Exhibit 3, pp. 60, 62, 161; Doc. #67,
p. 9 n.2. Officer Parton then escorted plaintiff to the police car. He searched plaintiff’s bag9
and found an air pistol that plaintiff told him he carried for protection because he was a
homosexual, cross-dressing black male. Officer Parton asked plaintiff to put his hands
behind his back so he could be pat searched for weapons. Plaintiff initially complied, but
when he began to pull away and become verbal, Officer Parton handcuffed him. The officer
ran background checks on plaintiff, but did not find any arrest warrants or any sexual
criminal history. He arrested plaintiff for violating the City’s disorderly conduct ordinance,
7
Although plaintiff admitted to laughing loudly while on the phone, there is no evidence in
the record that Office Parton heard him laughing loudly. Plaintiff’s deposition testimony, the only
evidence on this issue, is unclear as to when plaintiff was laughing. Plaintiff did not depose Officer
Parton and the defendant did not submit an affidavit in conjunction with his motion, although the
City attached the officer’s responses to plaintiff’s interrogatories to its motion. Doc. #57, Exhibit
5.
8
Plaintiff did not deny that he raised the cane. Rather, in response to defendant’s Fact
#9,(Doc. #61, pp. 5-6), plaintiff stated that he “admit[ted] to performing a deliberate and
choreographed dance move using his walking cane, but he denie[d] any characterization that he
was swinging his walking cane in a wild or unpredictable fashion, or in any manner that could be
perceived as a threat.” Doc. #67, pp. 2-3, ¶9.
9
The parties do not directly discuss, in the context of Officer Parton’s motion, when plaintiff
was arrested. Although there is some discussion elsewhere that plaintiff’s bag was searched prior
to the arrest, as plaintiff hinges the unconstitutionality of the search of his bag on the validity of his
arrest, the timing of the arrest is immaterial. See plaintiff’s response, Doc. #67, p. 12 & n.5.
4
Municipal Code § 30-81. In his report the officer stated in part:
BASED ON MY OBSERVATION OF THE AR, HIS LACK OF A
LEGITAMATE [sic] PURPOSE TO BE IN THE PARK AND THE INITIAL
CALLS FROM CITIZENS WHO WERE ALARMED BY THE AR'S
PRESENCE, IT APPEARED THAT THE AR WAS CREATING A
SUSPICIOUS SITUATION WITH UNNECASSARY RISK TO THE
PUBLIC, BEING THE CHILDREN AND WOMEN IN THE PARK. THE
FACT THAT THE CITIZEN'S CALLED THE POLICE OUT OF CONCERN
FOR THE AR'S BEHAVIOUR IS EVIDENCE OF THEIR PUBLIC ALARM.
THE AR WAS PLACED UNDER ARREST FOR DISORDERLY
CONDUCT.10
Doc. #60, Exhibit 1.
In responding to plaintiff’s interrogatories, Officer Parton stated that plaintiff, in his
presence, was loud and “was unsteady on his feet and never mentioned a physical problem
walking, leading me to suspect he may have been intoxicated.” Doc. #57, Exhibit 5, p. 4.
The officer also attested that “[a]ll the people were gathered at the playground equipment
apparently alarmed by the Plaintiff’s behavior instead of open play that would be expected
at a park (other than the two individuals playing tennis, who were in a closed location).” Id.
Plaintiff was charged with disorderly conduct and taken to jail. The City subsequently
dismissed the charge.
Prior to his arrest on June 7, plaintiff had regularly visited the park and had, at times,
worn women’s high heeled shoes but had not been arrested. Plaintiff testified that during the
first six months of 2010, he went there two to three times a week and wore high heels while
10
Although Officer Parton referred in his report to multiple calls, there is only evidence of
one call.
5
performing physical therapy exercises for leg and hip pain. He stated that June 7 was the
first time he had ever walked to the park in high heels. He said “I usually have my high heels
in my bag; and when I get to the park, I’ll put my high heels on and then take them off and
put them back in the bag.” Doc. #60, Exhibit 7, p. 50. He has also visited the park since his
arrest, three to four times a week, but has not worn high heels from fear of being arrested.
Plaintiff asserts that, while he would wear women’s heels to the park for therapeutic
reasons, “doing so also permitted him to express himself and his association with the female
gender and female identity.” Doc. #60, p. 4, ¶ 15. However, he testified that he “was using
the high-heel shoes as a form – form of physical therapy; and I didn’t, in my mind, think of
that as dressing like a woman.” Doc. #60, Exhibit 7, p. 22.
Analysis
Plaintiff’s Motion for Partial Summary Judgment
In addition to damages, plaintiff seeks an injunction prohibiting the City from
enforcing Ordinance 30-81 and declaratory relief. He has filed a motion seeking partial
summary judgment on his claims for declaratory relief, which the court concludes should be
denied.
Plaintiff makes four requests for declaratory relief in his amended complaint. He
seeks declarations that (1) Oklahoma City Ordinance 30-81 is unconstitutionally void for
vagueness on its face and as applied by Officer Parton, in violation of the due process clause;
(2) Oklahoma City Ordinance 30-81 is unconstitutionally overbroad on its face and as
applied by Officer Parton, in violation of his First Amendment right to freedom of
6
expression; (3) defendant Parton’s conduct violated his Fourth Amendment right to be free
from unreasonable searches and seizures; and (4) defendant Parton’s conduct violated his
First Amendment right to freedom of expression. He also seeks an injunction prohibiting the
City from enforcing the ordinance. The City argues that plaintiff lacks standing to seek
declaratory relief, that he was not cross dressing on the day he was arrested and that
Ordinance 30-81 is constitutional.
“[S]tanding is a jurisdictional issue.” PeTA v. Rasmussen, 298 F.3d 1198, 1202 (10th
Cir.2002). Plaintiff has the burden of establishing he has standing to seek prospective
declaratory or injunctive relief. Dias v. City & County of Denver, 567 F.3d 1169, 1176 (10th
Cir. 2009). While “standing for retrospective relief may be based on past injuries, ... claims
for prospective relief require a continuing injury.” PeTA, 298 F.3d at 1202. “To have
standing, [plaintiff] must show a real and immediate threat that [he] will be prosecuted under
[Ordinance 30-81] in the future.” Faustin v. City & County of Denver, 268 F.3d 942, 948
(10th Cir.2001). This he fails to do, as he has “not alleged a credible threat of future
prosecution under the Ordinance” for cross dressing. Dias, 567 F.3d at 1176.
In a sworn affidavit, Assistant Municipal Counselor Laura Yates states that “it is not
a violation of the City’s ordinances for an individual to wear clothing that is typically
associated with the opposite gender” and the Municipal Counselor’s Office “cannot
prosecute individuals for merely wearing clothing that is typically associated with the
7
opposite gender as such conduct would not violate any City ordinance.”11 Doc. #57, Exhibit
17. In light of this assurance,12 “it is not likely [plaintiff] will again be charged under
[Ordinance 30-81].”13 Faustin, 268 F.3d at 948. Plaintiff’s requests for prospective
declaratory and injunctive relief regarding the constitutionality of the ordinance will
therefore be denied.14 See D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004) (“We have
held that assurances from prosecutors that they do not intend to bring charges are sufficient
to defeat standing, even when the individual plaintiff had actually been charged or directly
threatened with prosecution for the same conduct in the past.”); PeTA, 298 F.3d at 1202-03.15
11
The court recognizes that the affidavit was filed after plaintiff brought his lawsuit, but
nonetheless concludes plaintiff lacks standing under Tenth Circuit precedent. See Mink v. Suthers,
482 F.3d 1244, 1254-55 (10th Cir. 2007); D.L.S., 374 F.3d at 974-75.
12
Plaintiff argues, without citation of authority, that the City attorney’s statement that he will
not be prosecuted for cross dressing is insufficient to defeat standing. His argument is not
persuasive in light of Tenth Circuit precedent to the contrary. See Mink, 482 F.3d at 1255
(“Finally, although the ‘No File’ letter conceivably might not bind other district attorneys, we have
held the possibility of future enforcement need not be reduced to zero to defeat standing. It is not
necessary for defendants [ ] to refute and eliminate all possible risk that the statute might be
enforced to demonstrate a lack of a case or controversy.”) (internal quotation marks omitted).
13
The court assumes, for purposes of this motion only, that plaintiff was arrested for cross
dressing.
14
The court also concludes plaintiff’s claim for prospective relief is moot. See Mink, 482
F.3d at 1256-57.
15
Plaintiff did not claim that he has “standing under the more lenient standing requirements
applicable to cases raising facial challenges on First Amendment overbreadth grounds.” D.L.S.,
374 F.3d at 975-96. Such a claim would have failed, nonetheless, as plaintiff did not “show that the
statute censors or chills third parties whose speech is more likely to be protected by the First
Amendment than the plaintiff's own speech.” Id.
8
Plaintiff does, though, have “standing to sue for damages based on [his] prosecution
. . . and to seek declaratory relief with respect to [his] prosecution.” Faustin, 268 F.3d at 948.
See Dias, 567 F.3d at 1176 (“[S]tanding for retrospective relief can be based on past
injuries.”). In other words, he can ask the court to determine whether past constitutional
violations occurred. See Faustin, 268 F.3d at 948; F.E.R. v. Valdez, 58 F.3d 1530, 1533
(10th Cir. 1995) (“The Patients' claim for a declaratory judgment is similar to their claim for
damages. In each, the Patients ask the court to determine whether a past constitutional
violation occurred.”). However, plaintiff has not demonstrated that he is entitled to summary
judgment on his claims premised on his arrest. He merely has shown that he has standing
to pursue them.
Plaintiff’s motion for partial summary judgment will be denied. Plaintiff has not
shown he is entitled to declaratory judgment on his claims alleging violations of First,
Fourth, and Fourteenth amendment rights as a result of his arrest.16 His claims for
prospective declaratory and injunctive relief will be dismissed with prejudice for lack of
standing.
Defendant Parton’s Motion for Summary Judgment
Plaintiff seeks a declaration that defendant Parton violated his First and Fourth
16
The court “consider[s] declaratory relief retrospective to the extent that it is intertwined
with a claim for monetary damages that requires [it] to declare whether a past constitutional
violation occurred. In such a situation, however, declaratory relief is superfluous in light of the
damages claim.” PeTA, 298 F.3d at 1202 n.2 (internal quotation marks omitted).
9
Amendment rights and compensatory damages for those alleged violations. Defendant
Parton has filed a motion for summary judgment on all plaintiff’s claims against him, which
the court concludes should be granted.
Plaintiff claims Office Parton violated his Fourth Amendment rights when he arrested
him for disorderly conduct. He contends the officer lacked probable cause to believe he was
violating Municipal Ordinance 30-81. Plaintiff argues that Office Parton unconstitutionally
searched his purse because the search was not incident to a valid arrest. Defendant Parton
claims he is entitled to qualified immunity on plaintiff’s Fourth Amendment claims because
he had probable cause to arrest plaintiff for disorderly conduct and the search of plaintiff’s
bag was proper as either a limited protective search for weapons or as a search incident to
arrest. He contends he is entitled to qualified immunity on plaintiff’s First Amendment
claim, as his actions “did not violate any recognized First Amendment right.” Defendant’s
motion, p. 3.
When a defendant moves for summary judgment on the basis of qualified immunity,
“‘the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional
right and (2) the constitutional right was clearly established.’” Koch v. City of Del City, 660
F.3d 1228, 1238 (10th Cir. 2011) (quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th
Cir.2009)), cert. denied, ___ U.S. ___ (2012). “‘If, and only if, the plaintiff meets this
two-part test does a defendant then bear the traditional burden of the movant for summary
judgment—showing that there are no genuine issues of material fact and that he or she is
entitled to judgment as a matter of law.” Id. (quoting Clark v. Edmunds, 513 F.3d 1219,
10
1222 (10th Cir.2008)).
Fourth Amendment – False Arrest
In the Tenth Circuit “it is clearly established that an officer may not arrest an
individual without a warrant unless there is probable cause.” Stearns v. Clarkson, 615 F.3d
1278, 1282 (10th Cir. 2010). “‘Probable cause exists where the facts and circumstances
within the arresting officer's knowledge and of which they had reasonably trustworthy
information are sufficient in themselves to warrant a person of reasonable caution to have the
belief that an offense has been or is being committed by the person to be arrested.’” Koch,
660 F.3d at 1239 (quoting United States v. Alonso, 790 F.2d 1489, 1496 (10th Cir.1986)).
The substantive standard “requir[es] more than a bare suspicion but not proof beyond a
reasonable doubt or even a preponderance.” Kerns. v. Bader, 663 F.3d 1173, 1188 (10th
Cir. 2011), petition for cert. filed, (U.S. May 29, 2012) (No. 11-10715). As this is an
objective standard, “‘[t]he subjective belief of an individual officer as to whether there was
probable cause for making an arrest is not dispositive.’” Koch, 660 F.3d at 1239 (quoting
United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir.2004)).
When considering an unlawful arrest “[i]n the qualified immunity/summary judgment
context ... not only must the plaintiff demonstrate that the officer arrested [him] without
probable cause (that is, that he violated a constitutional right), but also that it would have
been clear to a reasonable officer that probable cause was lacking under the circumstances
(that is, that the right was clearly established in the specific situation).” Koch, 660 F.3d at
1241. “This inquiry ‘must be undertaken in light of the specific context of the case, not as
11
a broad general proposition.’” Mecham. v. Frazier, 500 F.3d 1200, 1205-06 (10th Cir. 2007)
(quoting Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007)). If a reasonable officer
could have believed that probable cause existed to make a warrantless arrest, the arresting
officer is entitled to qualified immunity. Koch, 660 F.3d at 1241. “Under this framework,
sometimes referred to as ‘arguable probable cause,’ ‘[e]ven law enforcement officials who
reasonably but mistakenly conclude that probable cause is present are entitled to immunity.’”
Id. (quoting Cortez v. McCauley, 478 F.3d 1108, 1120 & n. 15 (10th Cir.2007) (en banc)).
Officer Parton was dispatched to the park to investigate a possible “morals violation.”
He did not speak with the person who placed the call once he arrived at the park or anyone
else, and was not told what Ms. Franklin said when she called.17 However, he either knew
or could reasonably assume he was dispatched because of a 911 call. He thus was aware,
when he arrived at the park, that someone had been alarmed enough by plaintiff’s presence
to contact the police.18
When he got to the park Officer Parton observed an individual who matched the
17
The City asserts in its reply brief that the officer “had access to electronic communications
supplied by the dispatcher via the Mobile Data Terminal in his patrol car,” which would have
informed him that “‘ cp is grandma at the park w/5 grand children .. there is a 87 bm w/large stick
in high heels w/ a large stick..’” Doc.#71, p. 4. However, there is no evidence in the record that the
officer looked at the terminal prior to arresting plaintiff.
18
Plaintiff relies on the officer’s lack of investigation to support his claim that his Fourth
Amendment rights were violated. However, if the officer had spoken with Ms. Franklin, that would
only have substantiated his conclusion that, with no obvious explanation for plaintiff’s wobbly walk,
loud laughter, singing and cane twirling, his presence at the park was causing public alarm. Based
on his own observations, the officer had sufficient information to conclude that probable cause
existed to arrest plaintiff for violating the city ordinance.
12
description he was given,19 who was dressed unusually, was unsteady on his feet and was
carrying, if not swinging or twirling, a sizeable cane or stick. As Officer Parton drew near
him, plaintiff raised his arm and cane.20 When asked what he was doing, plaintiff performed
a ballet move and responded that he was doing his exercises. While that movement may
have been a ballet or choreographed dance move,21 it was not unreasonable for the officer to
fail to recognize it as such. Ballet exercises may have been routine for plaintiff, but they are
unusual in a park setting. Moreover, plaintiff’s abbreviated response to the officer, that he
was exercising, did not explain why he was twirling a cane around in the middle of a park.
The officer also had to consider that he was confronting this behavior in a city park that
included a playground. He noted that people apparently were alarmed by plaintiff’s behavior
because, with the exception of the tennis players, everyone was gathered at the playground
equipment. In the process of determining whether to arrest plaintiff, the officer had to
consider where the behavior was occurring and who, in this case children, might encounter
it.
Officer Parton arrested plaintiff for violating Oklahoma City’s disorderly conduct
ordinance, Municipal Code § 30-81, which provides in part:
19
The plaintiff does not dispute that he was the only person in the park who matched the
description the dispatcher gave Officer Parton.
20
The court does not find the failure to “detail in the narrative any conduct that caused
public alarm” to be proof that such conduct did not occur. Plaintiff’s response, Doc. #67, p. 14.
Plaintiff has admitted to the conduct on which the court relies in determining the existence of
probable cause.
21
See plaintiff’s response, Doc. #67, p. 2, ¶9.
13
A person is guilty of disorderly conduct, a Class “a” offense, when such person:
(b) causes public alarm without justification.
The parties have not cited any Oklahoma cases discussing, much less resolving, any question
as to the scope of the city ordinance and none were found by the court. As defendant Parton
acknowledges, the disorderly conduct cases he relies on are factually distinct. E.g., Aragon
v. City of Albuquerque, 423 Fed.Appx. 790 (10th Cir. 2011) (unpublished). However, none
of the cases plaintiff cites persuade the court that probable cause was lacking in this case.
E.g., Stearns v. Clarkson, 615 F.3d 1278 (10th Cir. 2010); Fogarty v. Gallegos, 523 F.3d
1147 (10th Cir. 2008).
The question is whether, under “the totality of the circumstances,” Koch, 660 F.3d
1239, the officer had probable cause to believe the statutory elements of public alarm and
lack of justification were present. The court concludes “the facts and circumstances within
[Officer Parton’s] knowledge and of which [he] had reasonably trustworthy information
[were] sufficient in themselves to warrant a person of reasonable caution to have the belief
that an offense ... [was] being committed by the person ... arrested. Id. (internal quotation
marks omitted). See Kerns, 663 F.3d at 1188 (the relevant question, when determining
whether probable cause existed, is “whether a substantial probability existed that the suspect
committed the crime, requiring something more than a bare suspicion.”) (internal quotation
marks and citation omitted).
Even if probable cause was assumed not to exist for Officer Parton to arrest plaintiff
for disorderly conduct, the court would nonetheless conclude that it would not have been
14
“‘clear to a reasonable officer that his conduct was unlawful’ under the circumstances
presented.” Fogarty, 523 F.3d at 1155 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
See Reher v. Vivo, 656 F.3d 772, 776 (7th Cir. 2011) (“[G]iven the lack of case law on point,
a reasonable officer would not necessarily have known whether Reher's alleged videotaping
of the children was suspicious enough to cross the line between ‘mere videotaping’ and
videotaping plus whatever else is necessary to give rise to disorderly conduct in Illinois.”);
see generally Fogarty, 523 F.3d at 1161 (Because it cannot find qualified immunity with each
new fact pattern, the Tenth Circuit “uses a sliding scale to determine when law is clearly
established. Under this approach, [t]he more obviously egregious the conduct in light of
prevailing constitutional principles, the less specificity is required from prior case law to
clearly establish the violation.”) (internal citation and quotation marks omitted). This is not
a situation where “‘existing precedent [has] placed the statutory or constitutional question
beyond debate.’” Kerns, 663 F.3d at 1183 (quoting Ashcroft v. al–Kidd, ___ U.S. ___.
___(2011). “And the burden of identifying clearly established law rests with the plaintiff.”
Hernandez v. Story, 459 Fed.Appx. 697, 700 (10th Cir. 2012) (unpublished) (citing Herring
v. Keenan, 218 F.3d 1171, 1175-76 (10th Cir. 2000)).
With the benefit of hindsight, it is of course possible that the encounter with plaintiff
might have been handled in some different or better fashion. Nonetheless, the court
concludes plaintiff has not carried “the heavy burden of showing both that (1) the
defendant-officer in question violated one of his constitutional rights, and (2) the infringed
right at issue was clearly established at the time of the allegedly unlawful activity such that
15
‘every reasonable official would have understood that what he [was] doing’ violated the
law.” Kerns, 663 F.3d at 1180 (quoting Ashcroft, ___ U.S. at ___). Defendant Parton is
entitled to summary judgment on plaintiff’s Fourth Amendment arrest claim.
Fourth Amendment – Search
Plaintiff allotted little of his brief to his Fourth Amendment challenge to the search
of his bag, other than to state that “the validity of a search incident to arrest is predicated on
the validity of the arrest.” Plaintiff’s response, Doc. #67, p. 12. As the court has concluded
defendant Parton is entitled to qualified immunity with respect to plaintiff’s arrest, he also
is immune from damages for the search incident to the arrest. Summary judgment will be
entered in the officer’s favor on plaintiff’s Fourth Amendment search claim.
First Amendment
Plaintiff did not respond to defendant’s motion insofar as it addressed his First
Amendment claim. He therefore confessed the motion as to that claim. See LCvR. 7.1(g).22
Defendant City of Oklahoma City’s Motion for Summary Judgment
The court has concluded plaintiff’s claims seeking prospective declaratory and
injunctive relief should be dismissed for lack of standing and that summary judgment should
be entered in defendant Parton’s favor on plaintiff’s First and Fourth Amendment claims.
Because the court has found in favor of Officer Parton on plaintiff’s claims that he was
22
Plaintiff testified that he “was using the high-heel shoes as a form – form of physical
therapy; and I didn’t, in my mind, think of that as dressing like a woman,” Doc. #60, Exhibit 7, p.
22. In the absence of evidence he was communicating something by his dress, there is no reason
to assume plaintiff’s conduct fell within the protective scope of the First Amendment.
16
arrested without probable cause and in violation of his First Amendment rights and that his
purse was illegally searched, plaintiff cannot recover from the City for those alleged
constitutional violations.23 See Trigalet v. City of Tulsa, 239 F.3d 1150, 1155 (10th Cir.
2001) (municipality cannot “be held liable for the actions of its employees if those actions
do not constitute a violation of a plaintiff’s constitutional rights.”). The City has moved for
summary judgment on the remaining claims: plaintiff’s § 1983 claims against the City for
declaratory relief and damages based on the vagueness and overbreadth of Oklahoma City
Ordinance 30-81 and his state law claim asserted under the Governmental Tort Claims Act
based on Officer Parton’s alleged negligence.
Section 1983 claims
Plaintiff contends Oklahoma City Ordinance 30-81 is void for vagueness on its face
in violati4on of the Fourteenth Amendment. In his response he abandons his challenge to
the ordinance on the ground it is overbroad. Doc. #68, p. 6. Plaintiff argues that the
ordinance contains no scienter element and fails to provide adequate notice to “men of
ordinary intelligence” of the conduct that is proscribed. Id. at p. 8. He also argues that the
ordinance lacks objective standards and consequently vests too much discretion in the
officials charged with enforcing it.
Plaintiff does not specify whether he is claiming that the ordinance is
23
The court recognizes that a finding of qualified immunity in favor of Officer Parton based
on lack of clearly established law does not shelter the City itself from liability. However, the
conclusion that the officer had probable cause for plaintiff’s arrest does support that result. The
court also notes the absence of any other evidence demonstrating a basis for municipal liability as
to plaintiff’s First or Fourth Amendment claims.
17
unconstitutionally vague on its face or as applied.
However, “facial challenges are
appropriate in two circumstances: (1) when a statute threatens to chill constitutionally
protected conduct (particularly conduct protected by the First Amendment);or (2) when a
plaintiff seeks pre-enforcement review of a statute because it is incapable of valid
application.” Dias v. City & County of Denver, 567 F.3d 1169, 1179 (10th Cir. 2009).
Plaintiff’s claim does not fall in either category. By failing to press his First Amendment
claim in response to Defendant Parton’s motion, plaintiff cannot now assert the ordinance
threatens to chill conduct protected by the First Amendment.24 As he contends he was
wrongfully arrested under the statute he also is not seeking pre-enforcement review. The
court will therefore treat his claim as an “as applied” challenge to the ordinance.
“‘[T]he void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.’” United States v. Hunter, 663 F.3d 1136, 1141 (10th Cir. 2011) (quoting
United States v. Graham, 305 F.3d 1094, 1105 (10th Cir. 2002)). When considering a
vagueness challenge to a penal statute, a court must “begin with ‘the presumption that the
statute comports with the requirements of federal due process and must be upheld unless
satisfied beyond all reasonable doubt that the legislature went beyond the confines of the
Constitution.’” Id. (quoting United States v. Welch, 327 F.3d 1081, 1094 (10th Cir.2003)).
24
See supra note 24.
18
To be upheld, “[a]ll that is required is that the language conveys sufficiently definite warning
as to the proscribed conduct when measured by common understanding and practices....” Id.
(internal quotation marks omitted). 25
Municipal Code § 30-81provides in part:
A person is guilty of disorderly conduct, a Class “a” offense, when such person:
(b) causes public alarm without justification.
The statue has two requirements: the person must engage in conduct that causes apprehension
by the public and there must not be an apparent explanation or justification for the behavior.
The court concludes the statute defines the offense with sufficient definiteness that it
does not violate plaintiff’s due process rights.26 Ordinary people can understand what conduct
is prohibited and the offense sets forth minimal guidelines to govern law enforcement and
prevent arbitrary enforcement.27 See Colten v. Kentucky,407 U.S. 104, 110-111 (1972).
As applied to plaintiff’s arrest, the ordinance cannot be said to be unconstitutionally
25
When considering whether a challenged statute provides fair notice, courts often
“consider[] factors such as the enactment's purpose, the harm it attempts to prevent, whether
there is a scienter requirement, and the interpretations of individuals charged with
enforcement.” Jordan v. Pugh, 425 F.3d 820, 825 (10th Cir. 2005). The court does not find
those factors to be particularly helpful here.
26
The issue is presented in a different posture than usual, as the charge against plaintiff was
dropped. See e.g., United States v. Walker, 137 F.3d 1217, 1219 (10th Cir. 1998) (“Where, as here,
a vagueness challenge does not implicate First Amendment values, the challenge cannot be aimed
at the statute on its face but must be limited to the application of the statute to the particular conduct
charged. Accordingly, the challenge must be based only on the facts as they emerge at trial.”)
(internal citation and quotation marks omitted).
27
Plaintiff gives one example of protected behavior that might be subject to prosecution
under the statute – funeral protests. However, the City explains why funeral protestors could not
be arrested for violating Municipal Ordinance 30-81.
19
vague. See Hunter, 663 F.3d at 1141-42; United States v. Walker, 137 F.3d 1217, 1219 (10th
Cir. 1998). For no apparent reason, plaintiff was behaving in a public place in an alarming
or disconcerting manner. When given the opportunity to explain, plaintiff replied “my
morning exercises” and proceeded immediately with conduct which a reasonable person
might have viewed as threatening, or at least as something other than an ordinary “morning
exercise.” While plaintiff’s arrest, under the circumstances as we now know them to be, was
perhaps unfortunate, it did not violate his due process rights.
Negligence claim under the Governmental Tort Claims Act
Plaintiff does not address the City’s motion insofar as it seeks summary judgment on
his negligence claim. He has therefore confessed it. LCvR. 7.1(g). Further, the court has
concluded Officer Parton had probable cause to arrest plaintiff and that, based on that
conclusion, the search of plaintiff’s bag was valid. Therefore, plaintiff’s negligence claim,
based on the same conduct, would have failed if he had pursued it.
Conclusion
Plaintiff has not shown he is entitled to declaratory judgment on his claims alleging
violations of First, Fourth, and Fourteenth amendment rights as a result of his arrest.
Accordingly, plaintiff’s motion for partial summary judgment [Doc. #60] is DENIED and
his claims for prospective declaratory and injunctive relief are dismissed with prejudice for
lack of standing.
With respect to defendant Parton’s motion, the court concludes the officer had
probable cause to arrest plaintiff and would be entitled in any event to qualified immunity
20
as to plaintiff’s Fourth Amendment arrest claim, and that the search of plaintiff’s bag was
proper as a search incident to arrest. It also concludes plaintiff confessed his First
Amendment claim. Accordingly, defendant Parton’s motion for summary judgment [Doc.
#61] is GRANTED.
The court further concludes that Oklahoma City Ordinance 30-81 is not
unconstitutionally vague as applied, that the absence of an underlying constitutional violation
precludes plaintiff’s claims against the City based on Officer Parton’s conduct and that
plaintiff confessed his negligence claim asserted against the City under the Governmental
Tort Claims Act. Accordingly, the court GRANTS the City’s motion for summary judgment
[Doc. #57].
21
IT IS SO ORDERED.
Dated this 24th day of October, 2012.
22
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