Braun v. Abele et al

Filing 67

ORDER signed by Judge J P Stadtmueller on 11/30/15: granting 41 Defendants' Motion for Summary Judgment; DISMISSING this action on the merits; denying as moot 36 Plaintiff's Motion to Compel; and, denying as moot 61 Plaintiff's Motion to Quash. See Order. (cc: Plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT C. BRAUN,
Plaintiff,

Case No. 15-CV-252-JPS

v.
BYRON TERRY and
REYNALDO HERRERA,
Defendants.

ORDER

On February 25, 2015, the plaintiff, Robert C. Braun (“Braun”), filed
this case in state court claiming that the defendants committed several
constitutional and statutory violations during one of Braun’s same-sex
marriage protests1 on the grounds of the Milwaukee County Courthouse.
(Docket #1, Ex. 1 at 4-6). Pursuant to 28 U.S.C. § 1446(a), the defendants
removed the action to the United States District Court for the Eastern District
of Wisconsin. (Docket #1).
Since removal, Braun has filed two amended complaints (Docket #8,
#19), added three defendants (Docket #8), and dismissed one defendant
(Docket #53). Moreover, the Court granted the defendants’ motion for partial

1

Indeed, Braun is no stranger to litigation. Braun has filed numerous
lawsuits relating to protests that he has staged. (Docket #47 ¶ 39); see also Braun v.
Baldwin, 346 F.3d 761, 762 (7th Cir. 2003) (describing Braun as a “serial protester[]
and arrestee[]…dedicated to the propagation of litigation.”) (internal citations
omitted).

judgment on the pleadings on June 25, 2015 (Docket #29),2 which has left only
two remaining defendants in this case: Sheriff Deputy Byron Terry (“Deputy
Terry”) and Sheriff Deputy Reynaldo Herrera (“Deputy Herrera”).
Braun claims, under 42 U.S.C. § 1983, that Deputy Terry has: (1)
violated Braun’s freedom of speech and assembly rights under the First
Amendment;3 and (2) violated Braun’s equal protection and due process
rights under the Fourteenth Amendment.4 (See generally Docket #19). Also,
Braun claims that Deputy Herrera is liable under 42 U.S.C. § 1983 for failing
to intervene in Deputy Terry’s conduct. (Docket #19 at 4).
2

The motion was brought by Milwaukee County Executive Chris Abele
(“Abele”), Milwaukee County Sheriff David A. Clarke (“Clarke”), Milwaukee
County, and Deputy Terry, collectively “the movants.” (See Docket #15). The Court
granted the motion dismissing the following claims: (1) Religious Freedom
Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, et seq., claims against the movants;
(2) Misconduct in Public Office, Wis. Stat. Ann. § 946.12, claims against the
movants; (3) a Monell claim against Milwaukee County; and (4) Section 42 U.S.C.
§ 1983 claims—for violations of the First and Fourteenth Amendments—against
Clarke and Abele. (Docket #29 at 17).
3

Though Braun’s complaint is far from a model of clarity, he makes two
references to the “free exercise” and “practice” of his religion. (See Docket #19
¶¶ 11, 24). The Court disposed of Braun’s religious discrimination claims under
RFRA in its Order on the defendants’ motion for partial judgment on the pleadings.
(See Docket #29). To the extent Braun’s conclusory statements could be stretched to
assert an independent claim under the Free Exercise Clause, it would be meritless.
There is no evidence Deputy Terry even knew of Braun’s religion; his actions on
June 7, 2014, were instead motivated by a reasonable and, indeed, significant,
concern over safety and order at the Courthouse. (See infra Part 3.1.2); see also
Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 742-43 (7th Cir. 2015)
(reiterating the view that state action which is religiously neutral and of general
applicability is not actionable under the Free Exercise Clause.)
4

The defendants’ summary judgment briefs also argue that Deputy Terry is
not liable under RFRA or for misconduct in public office. (See Docket #42 at 17-18).
However, as these claims have previously been disposed of with respect to Deputy
Terry (see Docket #29), the Court will not re-visit these issues.

Page 2 of 23

Deputy Terry and Deputy Herrera filed a motion for summary
judgment on September 1, 2015. (Docket #41). As there are no genuine issues
of material fact for trial, and the defendants are entitled to judgment as a
matter of law, the Court will grant the defendants’ motion.
1.

BACKGROUND5
On Friday, June 6, 2014, Judge Crabb issued an order declaring

Wisconsin’s state law ban on same-sex marriages unconstitutional. (Docket
#47 ¶ 5); Wolf v. Walker, 986 F. Supp. 2d 982, 1028 (W.D. Wis. 2014). The next
day, Saturday, June 7, 2014, the Milwaukee County Courthouse (the
“Courthouse”) opened outside of its normal business hours to allow couples,
including same-sex couples, to apply for marriage licenses and get married.
(Docket #47 ¶ 6.) More than 70 couples were married at the Courthouse on
June 7, 2014. (Docket #47 ¶ 7).

5

The facts are taken from the defendants’ proposed findings of fact, unless
otherwise indicated. (See Docket #47). This is in large part because Braun did not
file proposed findings of fact as required by Civil Local Rule 56.2(b). Moreover,
Braun did not verify his complaint, which means that the factual allegations in the
second amended complaint cannot be considered evidence. See Ford v. Wilson, 90
F.3d 245, 246-47 (7th Cir. 1996) (“Rule 56(e) of the Federal Rules of Civil Procedure
provides that when a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or
denials of the…party's pleading.”). Instead, Braun merely filed a brief opposing the
defendants’ motion. (Docket #58). Likewise, he filed an “objection” seven weeks
after the defendants filed their motion and a “supplement” another week
thereafter. Needless to say, the “objection” and “supplement” were filed far beyond
the 30-day response time allowed under Civil Local Rule 56.2(b). Nonetheless, even
taking the facts outlined in these documents in the light most favorable to Braun,
the undisputed facts show that the defendants are entitled to judgment as a matter
of law.

Page 3 of 23

The Courthouse is located at 901 North 9th Street, Milwaukee,
Wisconsin, 53233. (Docket #47 ¶ 8). The public may enter and exit the
building on the south side of the building facing Wells Street (the “Wells
Street Entrance”). (Docket #47 ¶ 9) Outside of the Courthouse, in front of
the Wells Street Entrance, are concrete steps leading down to a water
fountain, a large concrete walking space around the water fountain,
concrete walkways leading to 10th Street and Wells Street, and a large
grassy area. This area outside the Courthouse is a County Park known
as Alfred C. Clas Park (“Clas Park”). See MILWAUKEE COUNTY PARKS,
http://county.milwaukee.gov/ImageLibrary/Groups/cntyParks/maps/Clas.
pdf (last visited Nov. 17, 2015) [hereinafter MILWAUKEE COUNTY PARKS].
On June 7, 2014, couples applied for marriage licenses and were
married both inside and outside of the Courthouse around the Wells Street
Entrance. (Docket #47 ¶ 11). For crowd control purposes and public safety
reasons, only those individuals with official business were allowed inside the
building. (Docket #47 ¶ 12).
Braun has opposed the legality of same-sex marriages for religious
reasons. (Docket #47 ¶ 14). So, when Braun learned that the Courthouse
would be open on Saturday, June 7, 2014, and that same-sex marriage
licenses would be issued, he decided to protest. (Docket #47 ¶¶ 13-14). That
morning, Braun, his wife, and a friend, Colin Hudson, met in front of the
Wells Street Entrance. (Docket #47 ¶ 15). The group held up homemade signs
reading “shame” and “no same-sex,” in a grassy area approximately 20 feet
east of the water fountain in front of the Wells Street Entrance. (Docket #47
¶ 16-17).

Page 4 of 23

Supporters of same-sex couples were also present and displaying
signs near Braun. (Docket #47 ¶ 18). At one point, some of these same-sex
marriage supporters started to form a line and advance toward Braun,
Braun’s wife, and Colin Hudson. (Docket #47 ¶ 18). Braun admits that he
believed that the supporters of the same-sex marriage couples were trying to
intimidate him and that he felt threatened. (Docket #47 ¶ 18; Docket #58 at 2).
Deputy Terry was assigned to the Courthouse on June 7, 2014, and
was outside the building in front of the Wells Street Entrance at
approximately 10:00 a.m. patrolling the area. (Docket #47 ¶ 19). Deputy Terry
witnessed same-sex marriage supporters approaching Braun and told those
protesters to move away from Braun. (Docket #47 ¶ 19). Deputy Terry also
ordered Braun to move away from the grassy area and over to the water
fountain approximately 20 feet to the west. (Docket #47 ¶ 20). Deputy Terry
states that he required Braun to move because Braun’s protest had begun to
interfere with the performance of weddings outside of the Courthouse.
(Docket #47 ¶ 21). Thereafter, Braun remained near the water fountain,
where he protested for approximately one and a half hours. (Docket #47
¶ 22). During this time, however, Braun claims same-sex marriage protesters
were allowed to protest “wherever they wanted.” (Docket #58 at 2-3).
During his protest, Braun attempted to enter the Courthouse at least
once, but was turned back by Deputy Terry because Deputy Terry did not
believe that Braun had any official business in the building.6 (Docket #47
¶ 24). Deputy Terry told Braun that he would be issued a county citation if
he refused to obey multiple requests that Braun not interfere with same-sex

6

Braun admits that he had no legitimate business in the Courthouse on
June 7, 2014. (Docket #47 ¶ 25).

Page 5 of 23

couples and their supporters. (Docket #47 ¶ 25). Braun claims he had a
conversation with Joseph Czarneczki7 who told him that “he has a right to
enter the courthouse anytime he wants” and “cannot be restricted.” (Docket
#58 at 2).
Deputy Herrera was posted inside the Courthouse on June 7, 2014.
(Docket #47 ¶ 27.) Shortly after 10:00 a.m., Deputy Herrera responded to a
request by radio from Deputy Terry to assist him outside in front of the Wells
Street Entrance because of the number of people in the area. (Docket #47
¶ 27.) Deputy Herrera came out of the Courthouse shortly after receiving the
radio call and saw Deputy Terry interacting with Braun from a distance of
approximately 20 feet away. (Docket #47 ¶ 28.) Deputy Terry then terminated
his interaction with the three individuals; Deputy Herrera claims that he did
not hear any exchange between Deputy Terry and Braun.8 (Docket #47 ¶ 28.)
Braun departed the Courthouse approximately an hour and a half
later. (Docket #47 ¶ 32). Braun was not arrested or issued a county citation
while at the Courthouse. (Docket #47 ¶ 33). Several local television stations
covered his protest of same-sex marriage. (Docket #47 ¶ 37).
2.

LEGAL STANDARD
When a party files a motion for summary judgment, it is their

“contention that the material facts are undisputed and the movant is entitled
to judgment as a matter of law.” Hotel 71 Mezz Lender LLC v. Nat. Ret. Fund,
778 F.3d 593, 601 (7th Cir. 2015) (citing Fed. R. Civ. P. 56(a)).“Material facts”
7

Joseph Czarneczki is the Milwaukee County Clerk. See MILW AUKEE COUNTY
CLERK : JOSEPH J. CZARNECZKI, http://county.milwaukee.gov/CountyClerk (last
visited Nov. 17, 2015).
8

Braun disputes this and claims that Deputy Herrera heard the conversation.
(Docket #58 at 3).

Page 6 of 23

are those facts which “might affect the outcome of the suit,” and “summary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is,
if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, to have a genuine dispute about a material fact, a party opposing
summary judgment “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 474 U.S. 574, 586 (1986); namely, the party in opposition
“must set forth specific facts showing that there is a genuine issue for trial.”
Fed. R. Civ. P. 56(e).
“Where…the movant is seeking summary judgment on a claim as to
which it bears the burden of proof, it must lay out the elements of the claim,
cite the facts it believes satisfies these elements, and demonstrate why the
record is so one-sided as to rule out the prospect of a finding in favor of the
non-movant on the claims.” Hotel 71 Mezz, 778 F.3d at 601. In analyzing
whether summary judgment should be granted, a court must draw all
reasonable inferences from the materials before it in favor of the non-moving
party. Id. When a court denies a motion for summary judgment it “reflects
the court’s judgment that one or more material facts are disputed or that the
facts relied on by the motion do not entitle the movant to judgment as a
matter of law.” Id. at 602.
3.

ANALYSIS
“To state a claim under § 1983, the [plaintiff] must demonstrate that

the defendant deprived him of a right secured by the Constitution and that
in doing so the defendant acted under color of state law.” White v. City of
Markham, 310 F.3d 989, 997 (7th Cir. 2002); see also 42 U.S.C. § 1983. As Braun
Page 7 of 23

claims that Deputy Terry is liable for both First and Fourteenth Amendment
violations, and Deputy Herrera is liable for failing to intervene in the same,
each claim will be discussed in turn.
3.1

First Amendment Claims

Braun claims that Deputy Terry violated his First Amendment speech
and assembly rights by: (1) limiting the area in which Braun was allowed to
protest based on the content of Braun’s message; and (2) failing to allow
Braun inside the Courthouse on June 7, 2014. (See generally Docket #19, #58).
First, the defendants argue that the Courthouse and the area surrounding the
building are a “nonpublic” fora and, as such, the reasonable, viewpointneutral restrictions imposed by Deputy Terry did not violate the First
Amendment. (See Docket #42 at 5-7). Alternatively, even if a higher level of
scrutiny applies to Deputy Terry’s actions, the defendants argue that the
restrictions placed on Braun on June 7, 2014, were content neutral, narrowly
tailored to serve a significant government interest, and left open ample
alternative channels of communication.9 (See Docket #42 at 10-12). Thus,
according to the defendants, under either analysis, Deputy Terry’s actions
did not give rise to a cognizable First Amendment claim.

9

Though Braun does not specifically argue this point, his brief appears to
assert that the Courthouse grounds are a public forum. (See Docket #58 at 2) (“[T]he
area that Terry restricted…was actually part of the concrete sidewalk leading to the
Courthouse.”). Though this argument is unclear, the Court must nonetheless
determine the type of forum that Braun protested in for purposes of the First
Amendment analysis. See Milwaukee Deputy Sheriffs' Ass'n v. Clarke, 588 F.3d 523,
530 (7th Cir. 2009).

Page 8 of 23

The First Amendment guarantees both the freedom of speech and the
freedom of assembly. See U.S. Const. amend. I. Courts “evaluate free speech
and free assembly claims under the same analysis.” Stagman v. Ryan, 176 F.3d
986, 999 (7th Cir. 1999).
“There is no doubt that as a general matter peaceful picketing and
leafletting are expressive activities involving ‘speech’ protected by the First
Amendment.” United States v. Grace, 461 U.S. 171, 176 (1983). However, “First
Amendment rights are not absolute.”Braun v. Baldwin, 346 F.3d 761, 763 (7th
Cir. 2003). “Nothing in the Constitution requires the Government freely to
grant access to all who wish to exercise their right to free speech on every
type of Government property without regard to the nature of the property
or to the disruption that might be caused by the speaker’s activities.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800 (1985).
As such, courts employ a “forum analysis” to determine the proper level of
scrutiny to apply when evaluating time, place, and manner restraints on
speech. Clarke, 588 F.3d at 530.
The conduct that Braun complains of occurred both inside and outside
the Courthouse. (See generally Docket #19). First, the interactions between
Braun and Deputy Terry took place on the grassy area and near the water
fountain, both of which are outside of the Courthouse and within Clas Park.
(Docket #47 ¶¶ 10, 16); see also MILWAUKEE COUNTY PARKS , supra Part 1.
Second, Braun complains about his inability to enter the Courthouse. (Docket
#47 ¶ 24). Thus, to analyze Braun’s First Amendment claim, the Court must
determine whether the interior of the Courthouse and Clas Park are public,
designated public, or nonpublic fora. Clarke, 588 F.3d at 530.

Page 9 of 23

3.1.1. Clas Park is a Public Forum and The Courthouse is a
Nonpublic Forum
There are three categories of “fora” for the purposes of a First
Amendment free speech claim:
The first category of property is the traditional public forum;
this is an area, like a sidewalk or a public park, that has
traditionally been used for expressive activity. A second
category of public property is the designated public forum.
These are areas that the government has dedicated to use by
the public as places for expressive activity. They may be
opened generally for all expressive activity. Or, they may be
designated for more limited purposes such as use by certain
groups, or discussion of certain subjects. The final category of
property, of course, is the nonpublic forum.
Air Line Pilots Ass'n, Int'l v. Dep't of Aviation of City of Chicago, 45 F.3d 1144,
1151 (7th Cir. 1995) (internal citations omitted).
“The relevant forum is defined by focusing on ‘the access sought by
the speaker.’” Id. (internal citations omitted). On the one hand, “[a]
traditional public forum, such as a street or a park, is property that by long
tradition or by government fiat…has been devoted to assembly and debate.”
DeBoer v. Vill. of Oak Park, 267 F.3d 558, 565 (7th Cir. 2001) (internal citations
omitted). “‘[P]ublic places’ historically associated with the free exercise of
expressive activities, such as streets, sidewalks, and parks, are considered,
without more, to be ‘public forums.’” Grace, 461 U.S. at 177.
“A designated public forum, in contrast, is a forum created by the
government, not through inaction or by permitting limited discourse, but
only by intentionally opening a nontraditional public forum for public
discourse.” DeBoer, 267 F.3d at 566 (internal citations omitted). In
determining whether a space is a designated public forum, the Court must

Page 10 of 23

consider: (1) whether the government “intended to designate a place not
traditionally open to assembly and debate as a public forum,” id. (internal
citations omitted); and (2) the nature of the property and its compatibility
with expressive activity, Air Line Pilots Ass’n, Intern., 45 F.3d at 1152.
“Other government properties are either nonpublic fora or not fora at
all.” Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677 (1998). “In
distinguishing between designated and nonpublic forums…the more
selective the government is in restricting access to its property, the more
likely that property will be considered a nonpublic forum.” Id. at 565.
Here, the Seventh Circuit has established that the interior of a
Courthouse is a nonpublic forum. See Sefick v. Gardner, 164 F.3d 370, 372 (7th
Cir. 1998) (holding that the courthouse lobby was a nonpublic forum); see also
Braun, 346 F.3d at 762 (“Newspapers and the streets outside are open to
scathing criticism of what happens within the courthouse. But the halls of
justice may be kept hushed.”). This is because:
the function of a courthouse and its courtrooms is principally
to facilitate the smooth operation of a government's judicial
functions.…[T]he presiding judge is charged with the
responsibility of maintaining proper order and decorum. In
carrying out this responsibility, the judge must ensure that the
courthouse is a place in which rational reflection and
disinterested judgment will not be disrupted....
Huminski v. Corsones, 396 F.3d 53, 91 (2d Cir. 2005) (internal citations
omitted); see also Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (9th
Cir. 2002) (holding that judicial and municipal complexes are nonpublic
forums); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (“A
courthouse—and, especially, a courtroom—is a nonpublic forum.”); United
States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (holding that a courthouse
Page 11 of 23

was a nonpublic forum, but an unenclosed courthouse plaza was a
designated public forum).
On the other hand, public parks, such as Clas Park, “are public places
that have traditionally been open for all manner of constitutionally protected
speech.” Milestone v. City of Monroe, Wis., 665 F.3d 774, 783 n.3 (7th Cir. 2011).
“‘[S]treets, sidewalks, parks and other similar public places are so historically
associated with the exercise of First Amendment rights that access to them
for the purpose of exercising such rights cannot constitutionally be denied
broadly and absolutely.’” Marcavage v. City of Chicago, 659 F.3d 626, 630 (7th
Cir. 2011) (citing Carey v. Brown, 447 U.S. 455, 460 (1980)); see also Forbes, 523
U.S. at 673 (“In the case of streets and parks, the open access and viewpoint
neutrality commanded by the [public forum] doctrine is ‘compatible with the
intended purpose of the property.’”) (internal citations omitted).
The defendants, while acknowledging the fact that the area in which
Braun protested is known as “Clas Park,” nonetheless argue that Braun’s
protest venues are better categorized as nonpublic or designated public fora.
(Docket #47 ¶ 10). Relying on the Supreme Court’s dicta in Grace, the
defendants argue that Braun protested on the “grounds” of the Milwaukee
County Courthouse. (See Docket #42 at 6-7). However, nothing in Grace
suggests that the Supreme Court’s grounds constitute, or are located within,
a public park. Indeed, the Court in Grace reaffirmed its view that “the right
to conduct expressive activities in such areas as…parks…is reinforced by
their traditional use for purposes of assembly.” Grace, 461 U.S. at 184.

Page 12 of 23

In sum, the undisputed facts show that Deputy Terry and Braun’s
interactions took place on the grassy lawn and near the water fountain, both
of which are outside the Courthouse and within Clas Park.10 See MILWAUKEE
COUNTY PARKS, supra Part 1. Thus, because Clas Park is a public park in
Milwaukee County, the Court must apply heightened scrutiny to Deputy
Terry’s actions. However, the interior of the Courthouse is a nonpublic
forum, and Braun’s speech activity relative to the Courthouse must be
analyzed accordingly.
3.1.2

Deputy Terry Did Not Violate Braun’s Freedom of
Speech and Assembly Rights

“The standard of scrutiny to which a court subjects restrictions on
speech depends on the type of property involved.” Air Line Pilots Ass'n, Int'l,
45 F.3d at 1151 (internal citations omitted). In the context of speech
regulations in a public forum, “the time, place, and manner of a speaker’s
activities can be regulated without violating the First Amendment so long as
the restrictions are (1) content-neutral, (2) narrowly tailored to serve a
significant government interest, and (3) leave open ample alternative
channels for communication.” Marcavage, 659 F.3d at 630 (citing Perry Educ.
Ass'n, 460 U.S. at 45). On the other hand, “restrictions on speech [in a

10

Of course, forum designation is a highly fact-driven inquiry. Air Line Pilots
Ass'n, Int'l, 45 F.3d at 1152. One fact not addressed by the defendants, but
significant nonetheless, is the fact that marriages on June 7, 2014, were taking place
both inside and outside the Courthouse. (See Docket #47 ¶ 11) (explaining that
couples were married outside the Wells Street Entrance). While this fact might
suggest that Clas Park became a de facto nonpublic forum in light of the
circumstances, this indeed would be a distinction without a difference. The
outcome of this case would not change, as even under strict scrutiny, Deputy
Terry’s actions pass constitutional muster (see Part 3.1.2), and as such summary
judgment is appropriate. See Hotel 71 Mezz, 778 F.3d at 602.

Page 13 of 23

nonpublic fourm] need only be reasonable and may not discriminate on the
basis of viewpoint.” Air Line Pilots Ass'n, Int'l, 45 F.3d at 1151.
Deputy Terry’s order that Braun re-locate from the lawn and protest
near the water fountain was content neutral. Importantly, the impetus for
Deputy Terry’s order was the fact that an altercation between Braun and
same sex marriage protesters nearly erupted on the grass. (Docket #47 ¶ 18).
Specifically, same-sex marriage supporters “started to form a line and
advance toward Braun.” (Docket #47 ¶ 18). Indeed Braun admits that he
“feared for [his] immediate safety” when the same-sex marriage supporters
“got within a foot of” him. (Docket #58 at 2). Braun actually supported
Deputy Terry’s actions in protecting Braun from this potential quarrel.
(Docket #47 ¶ 19). Under these facts, the first prong of the strict scrutiny test
is satisfied because Deputy Terry’s order that Braun re-locate and protest
near the water fountain did not discriminate based on the content of Braun’s
message; rather, it drew an appropriate line between the feuding protesters.
In addition, Deputy Terry’s order served compelling government
interests of safety and security. The circumstances of June 7, 2014, were,
simply put, extraordinary. The Courthouse, in extremely rare form, opened
its doors, literally, to the performance of marriage ceremonies for same-sex
couples. (Docket #47 ¶¶ 6-7). At least 70 couples arrived at the footsteps of
the Courthouse asking that County officials preside over their unions.
(Docket #47 ¶ 7). The combination of protesters, media, supporters, couples
and their loved ones, converging on the same space at the same time had the
real potential to devolve into frenzy. This Court has no doubt that
maintaining order and safety at the Courthouse by splitting up rival, and
potentially hostile, protestors served a compelling government interest.

Page 14 of 23

See Cutter v. Wilkinson, 544 U.S. 709, 717 (2005) (“[S]afety and security…are
undisputedly compelling state interests); see also Weinberg v. City of Chicago,
310 F.3d 1029, 1038 (7th Cir. 2002) (“There is no doubt the City has a
legitimate interest in protecting its citizens and ensuring that its streets and
sidewalks are safe for everyone.”). In addition, as it became the law of the
State that same-sex couples should equally enjoy the civil right of marriage
(Docket #47 ¶ 5), government staff, including law enforcement officers like
Deputy Terry, had an obligation to ensure that couples seeking to be
married—both inside and outside of the Courthouse—could indeed do so
without the threat of violence or disruption. Controlling the agitated crowd
while these proceedings occurred protected the safety of all those individuals
at or near the Courthouse—including Braun himself. (See Docket #47 ¶ 18).
Deputy Terry’s decision to move Braun’s protest to the water fountain
was also narrowly tailored. See id. at 1040 (“A regulation is narrowly tailored
if it ‘promotes a substantial government interest that would be achieved less
effectively absent the regulation.’”) (internal citations omitted). Deputy
Terry’s reason behind selecting the water fountain was that the dispute
between Braun and the same-sex marriage supporters had just occurred on
the grass alongside the fountain. (Docket #47 ¶¶ 16, 18-19). The fountain, in
fact, was only about 20 feet away from where Braun was originally standing.
(Docket #47 ¶ 20). Thus, Braun’s re-location was not only de minimus in
nature, but also proportionate to the circumstances that precipitated the
move. If Deputy Terry had not ordered Braun to move, a clash among the
protesters may have unfolded, thereby disrupting the marriages occurring
near the Wells Street Entrance. Luckily, it did not. Because the state’s interest
in security and order “would [have] be[en] achieved less effectively absent”
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Braun’s re-location to the fountain, Deputy Terry’s order was narrowly
tailored. Id.
Lastly, the Court finds that Braun’s protest near the concrete area of
the fountain left open ample alternative channels for Braun to communicate
his message. Marcavage, 659 F.3d at 630. The water fountain where Braun
protested occupies a central and prominent place in Clas Park. (Docket #47
¶ 10). It stands immediately in front of the Wells Street Entrance. (Docket #47
¶¶ 10, 32). The prominence of this position was reflected in the fact that
Braun was broadcast on the evening news. (Docket #47 ¶ 22). Moreover,
Deputy Terry did not impose any other conditions upon Braun’s protest
other than the general area where Braun could stand. (Docket #47 ¶ 34).
Braun had ample opportunity to display his message in a central position
outside the Courthouse, and Braun’s signs were never confiscated or
destroyed. (Docket #47 ¶ 34). Likewise, Braun was permitted to peacefully
pass out pamphlets that reflected his message. (Docket #47 ¶ 34). There is no
evidence to suggest that Braun’s distribution of these pamphlets was affected
by his re-location to the fountain. (Docket #47 ¶ 34). Thus, Braun had ample

Page 16 of 23

opportunity to covey his messages, in multiple forms, despite the
requirement that he stand near the fountain.11
In sum, Deputy Terry’s order that Braun protest near the fountain did
not violate Braun’s First Amendment rights because the order was contentneutral, narrowly tailored to ensure safety and order at the Courthouse, and
left open ample alternatives for Braun to communicate his message.
On the other hand, as the interior of the Courthouse is a nonpublic
forum, Deputy Terry’s decision to deny Braun access thereto need only be
“viewpoint neutral and reasonable in light of the purpose served by the
forum.” Davenport v. Washington Educ. Ass'n, 551 U.S. 177, 189 (2007). This
was indeed the case. In light of the unusual circumstances on June 7, 2014,
government officials only permitted those individuals with official business
into the Courthouse that day. (Docket #47 ¶ 12). Indeed, the Courthouse was
operating outside of its normal business hours to accommodate couples
seeking to be married on the heels of Judge Crabb’s ruling. (Docket #47 ¶ 12).
Thus, Braun’s inability to enter the Courthouse was in no way related to his

11

The Court notes that Braun’s complaint, which is not verified, alleges that
he was “told that protest signs were not allowed” and that Braun was told that he
could not “distribute any of the fliers [he] had brought with” him. (Docket #19
¶ 19). However, Braun does not allege he was deprived of the opportunity to hold
signs and pass out fliers in his: (1) brief opposing summary judgment (Docket #58);
(2) his objection to summary judgment (Docket #64); or (3) his supplement to his
opposition of summary judgment (Docket #66). The defendants affirmatively allege
that Braun’s signs and pamphlets were never confiscated (Docket #47 ¶ 34), and
even provided a picture of Braun holding up a sign at the water fountain outside
the Courthouse (Docket #47 ¶ 22-23). Braun, in fact, confirmed that the photo
provided by the defendants indeed is an accurate representation of him protesting
on June 7, 2014. (Docket #47 ¶ 23). Under Federal Rule of Civil Procedure 56(e),
Braun’s unsupported allegations in his second amended complaint are not
sufficient to raise a material issue of fact for summary judgment.

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viewpoint, but rather was a result of the Courthouse’s blanket policy to
refuse access to anyone without “official business” to conduct inside. (Docket
#47 ¶ 12). Moreover, this access restriction was reasonable in light of the
purpose of the Courthouse’s opening: to issue marriage licenses.
Government officials who imposed this limitation, and the persons
responsible for enforcing it, like Deputy Terry, reasonably concluded that the
volume of people present for this occasion warranted the limited access rule.
Indeed the restriction was a sensible effort to “facilitate the smooth
operation” of the Courthouse’s purpose on that day, i.e., the issuance of
marriage licenses. Huminski, 396 F.3d at 91.
In sum, neither of Deputy Terry’s actions, i.e., moving Braun to the
fountain and denying him access to the Courthouse, violated Braun’s free
speech and free assembly rights under the First Amendment.
3.2

Fourteenth Amendment Claims

Braun claims that Deputy Terry’s orders on June 7, 2014, violated
Braun’s equal protection and due process12 rights by treating him differently
from same-sex marriage supporters and inhibiting his ability to protest.
(Docket #19). Both claims fail.
On the one hand, “[t]he Equal Protection Clause of the Fourteenth
Amendment prohibits state action that discriminates on the basis of
membership in a protected class or irrationally targets an individual for

12

Braun’s due process claim is difficult to understand. (Docket #19). On the
one hand, Braun’s complaint alleges a violation of “procedural due process.”
(Docket #19 ¶ 15). On the other hand, his complaint further details Braun’s
understanding of the rights guaranteed under“substantive due process.” (Docket
#19 ¶ 17). As the gist of Braun’s complaint alleges substantive violations of the First
and Fourteenth Amendments, and do not discuss anything related to “procedure,”
the Court will interpret Braun’s claim to relate to substantive due process.

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discriminatory treatment as a so-called ‘class of one.’” Reget v. City of La
Crosse, 595 F.3d 691, 695 (7th Cir. 2010) (citing Engquist v. Or. Dep't of Agric.,
553 U.S. 591 (2008)). On the other hand, the Fourteenth Amendment’s due
process clause prohibits state officials from infringing on a person’s “life,
liberty or property without due process of law.” U.S. Const. am. XIV.
Substantive due process under the Fourteenth Amendment protects
“fundamental liberty interest[s]” and against “arbitrary and unreasonable
[government action], having no substantial relation to the public health,
safety, morals, or general welfare.” Greater Chicago Combine & Ctr., Inc. v. City
of Chicago, 431 F.3d 1065, 1071 (7th Cir. 2005) (internal citations omitted).
In the context of both equal protection and substantive due process
claims, the Court must ask whether the act in question impacts a
fundamental right or targets a suspect class. See Heller v. Doe, 509 U.S. 312,
319 (1993). When no suspect class or fundamental right is involved, courts
employ a rational basis test to determine whether the state action is
constitutional. Id. The Court must uphold state action under this test so long
as it “bears a rational relation to some legitimate end.” Romer v. Evans, 517
U.S. 620, 631 (1996). When a suspect class or fundamental right is involved,
state action must survive strict scrutiny. See Srail v. Vill. of Lisle, Ill., 588 F.3d
940, 943 (7th Cir. 2009).
First, while freedom of speech is a fundamental liberty interest under
the Fourteenth Amendment, Reed v. Vill. of Shorewood, 704 F.2d 943, 949 (7th
Cir. 1983), the Court has already concluded that Deputy Terry’s actions
survived strict scrutiny under the First Amendment. (See supra Part 3.1.2).
“Where a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior,
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that Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims.” Albright v. Oliver, 510
U.S. 266, 273 (1994) (internal citations omitted). Thus, Braun’s claim that
Deputy Terry violated Braun’s substantive due process rights by limiting his
speech is precluded. See, e.g., Koutnik v. Brown, 456 F.3d 777, 781 (7th Cir.
2006) (approving the district court’s application of Albright to bar a § 1981
plaintiff from claiming both a First Amendment violation and substantive
due process claim); Eby–Brown Co., LLC v. Wisconsin Dep't of Agric., 295 F.3d
749, 754 (7th Cir. 2002) (refusing to analyze complaints of unequal treatment
as substantive due process claims, as opposed to equal protection claims,
under Albright); see also Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005)
(“[C]onstitutional claims must be addressed under the most applicable
provision.”).
Second, Braun’s equal protection claim is substantively meritless.
Nowhere in his complaint nor briefs does Braun set forth evidence that
Deputy Terry’s actions targeted a protected status. Rather, Braun argues that
Deputy Terry discriminated against him as “pro-man/woman marriage
demonstrator.” (Docket #19 ¶ 23).
The Court has not found any case law to suggest that a “proman/woman marriage demonstrator” is a protected class. Moreover, that
argument sounds more in the First Amendment context than in equal
protection, and Braun’s First Amendment claim has already been rejected.
(See supra Part 3.1.2). Thus, Deputy Terry’s actions need only survive rational
basis review. See Srail, 588 F.3d at 943. “Rational basis review requires the
plaintiff to prove that: (1) the state actor intentionally treated plaintiffs
differently from others similarly situated; (2) this difference in treatment was
Page 20 of 23

caused by the plaintiffs’ membership in the class to which they belong; and
(3) this different treatment was not rationally related to a legitimate state
interest.” Id.
Deputy Terry’s actions survive the rational basis test. While Deputy
Terry intentionally moved Braun away from the same-sex marriage
supporters, he had a sensible reason to do so. As discussed at length above,
Braun and the same-sex marriage supporters had nearly gotten into a
physical altercation prior to Deputy Terry’s order that Braun protest near the
water fountain. (Docket #47 ¶¶ 18-20). Moreover, Braun’s protests were
interfering with official marriage proceedings. (Docket #47 ¶ 21). Thus,
Deputy Terry’s requirement that Braun stand near the fountain was a
prudent decision to maintain security and order at the Courthouse.
To the extent Braun makes a “class of one” equal protection claim, he
also fails. To make this type of equal protection claim, Braun must show that:
“(1) [he] has intentionally been treated differently from other[s] similarly
situated…; and (2) there is no rational basis for the difference in treatment or
the cause of the differential treatment is a ‘totally illegitimate
animus’….”Woodruff v. Mason, 542 F.3d 545, 554 (7th Cir. 2008) (internal
citations omitted). As Braun has failed to put forth any evidence suggesting
his treatment was either irrational or based on “totally illegitimate animus,”
any class of one argument is without merit. Id.
Braun’s claim for violation of the Equal Protection Clause and the Due
Process Clause of the Fourteenth Amendment must fail; as such, the
defendants are entitled to judgment as a matter of law.

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3.3

Deputy Herrera Is Not Liable

Braun’s claims against Deputy Herrera cannot stand. Without any
underlying constitutional violation by Deputy Terry, Braun’s claims against
Deputy Herrera for “failing to intervene” must also fail. See, e.g., Hart v.
Mannina, 798 F.3d 578, 596 (7th Cir. 2015), reh'g denied (Oct. 16, 2015)
(“Because the district court properly dismissed Hart’s claims against
Detective Mannina and the other police officers who participated directly in
the investigation leading to Hart’s arrest, Hart’s claims against several
supervisory defendants and against the City of Indianapolis also fail.”).
4.

CONCLUSION
Because the Court finds that the defendants are entitled to summary

judgment as a matter of law on both the First and Fourteenth Amendment
claims, the Court need not address the defendants’ remaining arguments.13
See Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 597 (7th Cir. 1997)
(finding that when a court determines in a § 1983 case that no constitutional
violation occurred, it is unnecessary to consider whether defendants are
entitled to qualified immunity).
Lastly, the Court notes that Braun has filed two discovery-related
motions in this case. (See Docket #36, #61). Each of these motions will be
denied as moot in light of the Court’s grant of summary judgment to the
defendants.
Accordingly,

13

As discussed above, the defendants argued in their brief that Deputy
Terry cannot be liable under RFRA and for misconduct under Wis. Stat. Ann.
§ 946.12. (Docket #42). However, as the Court dismissed these claims against
Deputy Terry in its Order granting partial judgment on the pleadings (Docket #29),
their arguments as to these claims are moot.

Page 22 of 23

IT IS ORDERED that the defendants’ Motion for Summary Judgment
(Docket #41) be and the same is hereby GRANTED, as more fully described
in detail above, and that this action be and the same is hereby DISMISSED
on the merits;
IT IS FURTHER ORDERED that the plaintiff’s Motion to Compel
(Docket #36) be and the same is hereby DENIED as moot; and
IT IS ORDERED that the plaintiff’s Motion to Quash (Docket #61) be
and the same is hereby DENIED as moot.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of November, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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