Morris, Lincoln v. Huebsch, Mike et al

Filing 43

OPINION AND ORDER granting 19 Motion for Summary Judgment; granting 35 Motion to Supplement. On or before March 17, 2017, plaintiff should file a brief explaining why, in light of the court's finding that the permitting requirement for musi cal instruments is a constitutional restriction on time, place and manner of speech, the court should not enter judgment in defendants' favor on plaintiff's official capacity claims. Signed by District Judge William M. Conley on 3/3/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LINCOLN S. MORRIS,
Plaintiff,

OPINION AND ORDER

v.
12-cv-319-wmc
MIKE HUEBSCH, DAVID ERWIN,
EDWIN BARDON, TODD THOMAS,
DANIEL ESSINGTON and JEFF CALHOUN,
Defendants.

Plaintiff Lincoln S. Morris brings this civil action for violation of his First and
Fourth Amendment rights by certain Wisconsin State Capitol Police Officers, who
allegedly arrested him for playing his spiritual Chippewa drum in the capitol. Previously,
the court granted in substantial part defendants’ motion for judgment on the pleadings
(see 2/28/14 Op. & Order (dkt. #17)), leaving as the sole issue whether qualified
immunity applies to Morris’s remaining First Amendment damages claim. The parties
have since conducted targeted discovery on that question, and defendants subsequently
filed a motion for summary judgment. (Dkt. #19.) In addition to filing his opposition,
Morris cross-moves for grant summary judgment in his favor, arguing that defendants
violated his clearly established First Amendment rights. (Dkt. #27.)
For the reasons explained below, the court finds that defendants are entitled to
qualified immunity, and so their motion to dispose of the individual capacity claims will
be granted. Moreover, in light of the court’s findings, any claims against defendants in
their official capacity also appear to be without merit.

Nevertheless, the court will

provide plaintiff with an opportunity to explain why this last portion of his lawsuit
should not be dismissed as well.

UNDISPUTED FACTS1
I. The Parties
Plaintiff Lincoln S. Morris is a member of the Red Cliff Band of Lake Superior
Chippewa Indians (“Red Cliff Band”). He lives on the Red Cliff Reservation, a beautiful
cape extending into the lake near what is now the Apostle Islands National Lakeshore in
Northern Wisconsin, where he observes Native American spiritual practices, including
drumming and singing.
Defendant Mike Huebsch was the Secretary of the Wisconsin Department of
Administration (“DOA”) during all times relevant to Morris’s complaint.2 Defendant
Charles A. Tubbs, Sr. was the Chief of Police of the State Capitol Police Department, a
DOA division, during the relevant time period. Defendants Edwin Bardon and Todd
Thomas are a Detective and Sergeant, respectively, with the State Capitol Police.
Defendants Daniel Essington and Jeff Calhoun are both State Capitol Police officers.

Neither party filed proposed findings of fact in this case as typically required by the court’s local
procedure on summary judgment, perhaps because this case has followed an odd procedural path.
Magistrate Judge Crocker stayed the case at the preliminary pretrial conference pending a decision
on defendants’ Rule 12(c) motion. After ruling on that motion, the court opened the case for
limited discovery on the qualified immunity issue but set no further schedule. It appears,
therefore, that the parties did not receive our preliminary pretrial conference order with our
procedures for summary judgment until September of 2016. Since there appears no dispute as to
the material facts based on the parties’ statements of facts in support of their cross-motions for
summary judgment, the court synthesizes those undisputed facts above.
1

The current Secretary of the DOA is Scott A. Neitzel. If this case continues with claims against
defendants in their official capacity, Neitzel will be substituted for Huebsch.
2

2

II. Wisconsin State Capitol Rules Regarding Instruments
Since 1991, individuals have not been permitted to play any musical instruments
in the Wisconsin State Capitol without a permit. The “no musical instrument rule”
encompasses all musical instruments, as well as items that could be used “like
instruments to create music.” The rule is not based on the type of music being played,
nor does it take into account the race, ethnicity or religious beliefs of the musician.
Well before the 2012 incident that is the subject of the current dispute, Officer
Calhoun understood that there was this “historical” prohibition on playing musical
instruments in the Capitol without a permit.

In fact, he had warned many other

individuals of the permitting requirement during his time with the Capital Police, and all
of those individuals had voluntarily stopped playing after receiving a warning or had had
their instruments seized.
During the events involving Morris, however, the court assumes there were no
signs posted anywhere in the Capitol stating that musical instruments in general, or
drums in particular, were prohibited in the Capitol. Moreover, no other person has ever
been issued a citation for violating the rule against unpermitted musical instruments.
III. Morris’ Citation
On January 26, 2012, Morris traveled to the Capitol as one of about fifty
members of the Lake Superior Chippewa Indian Tribes, including the Red Cliff Band and
the Bad River Band. The Red Cliff Band had become concerned about a proposed openpit taconite iron mine in the Penokee Hills near Mellen, Wisconsin, which is
approximately 40 miles from its reservation. Their purpose in traveling to the Capitol
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was to protest the passage of iron mining legislation denominated “AB 426,” which they
believed would significantly weaken Wisconsin’s existing metallic mining laws to allow
rapid approval of the proposed mine. Morris and others hoped to convince members of
the Wisconsin State Assembly to vote against AB 426 by lobbying, expressing their
opposition and engaging in respectful and nonviolent protest within the Capitol.
Morris brought with him a spiritual Chippewa drum, which he made on December
31, 2011. To the Chippewa people, drumming is a sacred form of musical expression
that communicates feelings and spiritual energy, which cannot be expressed with the
voice alone. Around noon, a five-person, Bad River Band spiritual drum group played a
spiritual drum song and Chippewa prayer on the ground floor level of the Capitol
rotunda. Even though the song was performed without permission, the Capitol Police
advised the group that they could complete their one song without being ticketed and
could then move to an Assembly room to perform a ceremony.
At the time the Bad River Band was performing, Morris was on the first floor of
the rotunda, preparing to play his own drum. When the Bad River Band finished, Morris
began to play his own drum softly. Officer Calhoun saw Morris playing his drum on the
first floor area of the rotunda and approached him.
Calhoun and Morris then had a conversation, the substance of which is in dispute.
Calhoun avers that he specifically told Morris to stop drumming because individuals need
a permit to play a musical instrument in the Capitol. In contrast, Morris not only avers
that Calhoun did not tell him that, but also failed to explain that: (1) Morris could not
drum anywhere in the Capitol; (2) he could not have the drum inside; (3) he needed a
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permit to drum; or (4) he could drum within the Capitol provided he had a permit.
Instead, Morris indicates that Calhoun and he had a very brief conversation, during
which Morris agreed to stop drumming on the first floor. Nevertheless, he was led to
believe that he could drum on the ground floor, where the Bad River Band had been
doing just that, albeit briefly. Morris also indicates that Calhoun was wearing earplugs
and did not seem to hear him well.
About fifteen minutes later, Morris went down to the ground floor of the rotunda.
As fate would have it, he was welcomed by a group of about fifteen “Noontime Solidarity
Singers,” who were at the time regularly gathering to sing and chant against the policies
of Governor Scott Walker. They invited Morris to drum his prayer in opposition to AB
426, and Morris began playing his drum for a second time, at a volume lower than the
Solidarity Singers’ vocal performance.

Consequently, within a few minutes, Officer

Calhoun approached Morris again, this time accompanied by Officer Essington and other
armed State Capitol Police Officers. While neither Calhoun nor Essington knew that
Morris was Native American, the Capitol police knew generally that Native Americans
were present that day. (See Glenn M. Stoddard Decl. Ex. E (dkt. #29-5) (incident report
regarding Bad River Band drumming).)
At that time, Officer Calhoun told Morris to stop playing his drum, and Morris
was asked to leave the Capitol, which he did. As he was leaving, however, Morris tried to
speak with defendants, saying that he:

(1) had misunderstood Calhoun’s earlier

instructions; and (2) believed he had a constitutional right to play his drum inside the
Rotunda.

Officer Calhoun told him that his actions were considered “playing” an
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instrument, and that he would need to leave the Capitol building with his drum or risk a
citation for disorderly conduct. Morris then left the building, agreeing not to take his
drum back inside, although he claims to have received permission from Officer Calhoun
to go back inside to pick up his things and store his drum.
Despite his compliance, Calhoun thereafter stopped Morris and issued him a
citation for disorderly conduct for playing a musical instrument in the Capitol under
Wis. Admin. Code § ADM 2.14(2)(k). Morris denies asking to be arrested or to be given
a citation for his actions.

The Dane County District Attorney later dismissed the

citation.

OPINION
The sole question before the court at this point is whether defendants are entitled
to qualified immunity -- that is, whether they violated Morris’ clearly-established First
Amendment rights by arresting and citing him for playing his drum in the Capitol.
Under the doctrine of qualified immunity, “government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
see also Estate of Escobedo v. Martin, 702 F.3d 388, 404 (7th Cir. 2012). While qualified
immunity is nominally an affirmative defense, once a defendant has raised it, the plaintiff
has the burden of defeating it.

Purvis v. Oest, 614 F.3d 713, 717 (7th Cir. 2010).

Specifically, a plaintiff must show that: (1) the facts alleged demonstrate a constitutional

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violation; and (2) the constitutional right was clearly established. Estate of Escobedo, 702
F.3d at 404 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

“Courts have

discretion to decide the order in which to engage these two prongs.” Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014).
“A constitutional right is clearly established when ‘it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.’” Estate
of Escobedo, 702 F.3d at 404 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). In
contrast, “[i]f officers of reasonable competence could disagree on the issue [of whether
or not an action was constitutional], immunity should be recognized.”

Id. (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). Thus, qualified immunity protects “all but
the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at
341. A plaintiff may show that a right was clearly established either by “show[ing], on
some level, that a violation of this right has been found in factually similar cases, or that
the violation was so clear that a government official would have known that his actions
violated the plaintiff’s rights even in the absence of a factually similar case.” Lee v. Young,
533 F.3d 505, 512 (7th Cir. 2008).
Whether a right was “clearly established” at the time of the purported misconduct
is a question of law. Lewis v. Downey, 581 F.3d 467, 478 (7th Cir. 2009). The inquiry
“must be undertaken in light of the specific context of the case, not as a broad general
proposition,” Saucier, 533 U.S. at 201, but courts resolving the question on summary
judgment must exercise care to draw inferences in favor of the nonmovant and to avoid

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“defin[ing] a case’s ‘context’ in a manner that imports genuinely disputed factual
propositions.” Tolan, 134 S. Ct. at 1866.
I.

Content Neutrality
With those principles of qualified immunity as backdrop, the court turns to the

First Amendment claim itself.

There is no real dispute that musical expression is

protected by the First Amendment. Ward v. Rock Against Racism, 491 U.S. 781, 790
(1989). The Capitol itself “may be thought of as either a traditional or a designated
public forum,” although even this was the subject of some debate in 2012. Kissick v.
Huebsch, 956 F. Supp. 2d 981, 999 (W.D. Wis. 2013). As a public forum, content-based
discrimination against speech is subject to strict scrutiny. Id.; see also Police Dep’t of City of
Chi. v. Mosley, 408 U.S. 92, 96 (1972) (“Once a forum is opened up to assembly or
speaking by some groups, government may not prohibit others from assembling or
speaking on the basis of what they intend to say.”). However, content-neutral restrictions
on time, place or manner of engaging in protected speech are permissible as long as they
are narrowly tailored to serve a significant governmental interest and leave open ample
alternative channels for communication of the information. Ward, 491 U.S. at 791.
Morris argues that the rule prohibiting musical instruments is, in fact, contentbased, requiring the court to perform a strict scrutiny analysis, because it is based upon
the type of music being played, restricting instrumental music while permitting vocal
music.

However, this argument misapprehends the meaning of a content-based

restriction.

As the Supreme Court recognized in Ward, “[t]he principal inquiry in

determining content neutrality, in speech cases generally and in time, place, or manner
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cases in particular, is whether the government has adopted a regulation of speech because
of disagreement with the message it conveys.” Ward, 491 U.S. at 791 (emphasis added).
A facially-neutral law “does not become content based simply because it may
disproportionately affect speech on certain topics.” McCullen v. Coakley, 134 S. Ct. 2518,
2531 (2014). “On the contrary, ‘[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.’” Id. (alteration in original) (quoting Ward, 491
U.S. at 791).
Here, the rule against playing musical instruments without a permit may affect
speakers using instruments, rather than those using their voices, but that alone does not
render it a content-based restriction. Critical to that determination is the purpose behind
the rule, which was still unclear at the time the court decided the previous motion for
judgment on the pleadings. (See 2/28/14 Op. & Order (dkt. #17) 11 (“it is at least
possible to infer . . . that the restriction may have been created on the day that plaintiff
arrived in the Capitol, as an ad-hoc response to the Native American protests then taking
place”). Defendants have since come forward with uncontroverted evidence that the rule
has been in place since at least 1991 and that its purpose is to control the level and
quality of sound in the Capitol. This purpose has nothing to do with the content of the
message being conveyed. Cf. Ward, 491 U.S. at 792 (desire to control noise levels at
bandshell events and avoid undue intrusion into residential areas had nothing to do with
content of the music itself).

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The record also indicates that officers, including some of the defendants in this
case, had warned multiple other individuals of the requirement that they obtain a permit
to play musical instruments in the Capitol. The rule was not, therefore, created as an ad
hoc means of stifling Native American drum prayer -- a possibility that might have
justified the application of strict scrutiny. (See 2/28/14 Op. & Order (dkt. #17) 10-11.)
Morris’s citation to City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410
(1993), does not support a different result. In Discovery Network, the Supreme Court held
that Cincinnati’s ban on newsracks distributing commercial publications was not contentneutral because “the very basis for the regulation [was] the difference in content between
ordinary newspapers and commercial speech.” Id. at 429. While the city’s interest in
safety and esthetics might have justified a limit on the overall number of newsracks, there
was no neutral justification for the selective ban the City enacted, which prohibited only
newsracks containing commercial publications.

See id. at 429-30.

“[W]hether any

particular newsrack [fell] within the ban [was] determined by the content of the
publication resting inside that newsrack.” Id. at 429. In contrast, here, the operation of
the rule does not depend on the content of the music to be played; it depends on
whether the speaker is using an instrument or not. This restricts the manner of expressing
ideas, but not the content of the expression; that is, it “control[s] the surrounding
circumstances of speech without obstructing discussion of a particular viewpoint or
subject matter.”

Schultz v. City of Cumberland, 228 F.3d 831, 841 (7th Cir. 2000).

Accordingly, the rule is content-neutral on its face.

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Morris also briefly argues that even if the rule is facially neutral, defendants applied
it based on the content of his speech. Specifically, while he does not dispute that Capitol
police had warned other individuals of the permitting requirement, he argues that he is
the only one ever to receive a citation, which he argues permits an inference that he was
cited based on the significance of his drumming.

However, the court finds such an

inference would be unreasonable -- at least on this record. Morris was not cited the first
time he drummed; rather, according to his own version of the facts, he agreed to stop
drumming on the first floor and was left to go about his day. Although he claims Office
Calhoun failed to inform that he needed a permit to drum at all, it was only after he
began playing his drum again, on the ground floor, that he received a citation.

In

contrast, it is undisputed that in other cases involving the no-instrument rule, the
individual voluntarily stopped playing or the instrument was seized. In fact, the other
members of the Bad River Band – who, according to the record, performed the same type
of drum prayer with essentially the same message -- were not cited, because they stopped
playing after the first warning.

Since plaintiff is unable to offer a single example of

someone being let go without citation for a second violation, much less a policy of doing
so, he cannot meet his burden in an as-applied challenge based on the assertion that he
alone was singled out since he alone appears the only one to violate the rule twice.3 Since
it would be unreasonable to infer a content-based application of the rule to Morris on
this record, the court concludes the rule itself is content-neutral and will apply
Technically, one might argue that the police treated him differently, by giving him a citation,
rather than confiscating his drum, but under the qualified immunity standard, the court is hard
pressed to articulate a clearly established constitutional right to confiscation but not citation, at
least absent any evidence that the officers here were acting with an ulterior motive.
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intermediate scrutiny in determining whether the enforcement of the no-instrument rule
violated Morris’ clearly-established constitutional rights.
II.

Intermediate Scrutiny
As noted above, to survive intermediate scrutiny, a regulation must be “narrowly

tailored to serve a significant governmental interest,” Ward, 491 U.S. at 791 (quoting
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984), and they must “leave
open ample alternative channels for communication of the information,” id. (quoting
Clark, 468 U.S. at 293). While there is no real dispute that the government has “a
substantial interest in protecting its citizens from unwelcome noise,” id. at 796 (quoting
City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 806 (1984)), Morris argues that
the regulation is neither narrowly tailored, nor does it leave open ample alternative
channels, making its enforcement a clear violation of his First Amendment rights.
A restriction is considered narrowly tailored so long as it “promotes a substantial
government interest that would be achieved less effectively absent the regulation.” Ward,
491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). “So long
as the means chosen are not substantially broader than necessary to achieve the
government’s interest, . . . the regulation will not be invalid simply because a court
concludes that the government’s interest could be adequately served by some less-speechrestrictive alternative.” Id. at 800. In this regard, the Supreme Court has noted that
courts owe a measure of deference to the lawmaker’s judgment. See Hill v. Colorado, 530
U.S. 703, 727 (2000). Even so, “the government still ‘may not regulate expression in

12

such a manner that a substantial portion of the burden on speech does not serve to
advance its goals.’” McCullen, 134 S. Ct. at 2535 (quoting Ward, 491 U.S. at 799)).
As for the “ample alternative channels” requirement, “[a]n adequate alternative
does not have to be the speaker’s first choice.” Weinberg v. City of Chi., 310 F.3d 1029,
1041 (7th Cir. 2002). Nor need it be a channel that “provides the same audience or
impact for the speech.” Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000). Instead,
an alternative “must be more than merely theoretically available. It must be realistic as
well.”

Id. (citing Linmark Assocs., Inc. v. Twp. of Willingboro, 431 U.S. 85 (1977)).

“Furthermore, an adequate alternative cannot totally foreclose a speaker’s ability to reach
one audience even if it allows the speaker to reach other groups.” Id. at 907 (citing Bery
v. City of N.Y., 97 F.3d 689, 698 (2d Cir. 1996)).
The rule requiring a permit to play an instrument does not clearly violate these
principles. As a general matter, musical instruments can reach volumes far exceeding the
limits of the human voice; in fact, drumming in the Capital has, in the past, proven to be
so loud that officers were concerned they would not be heard if they needed to order an
evacuation.

(Daniel Blackdeer Decl. (dkt. #22) ¶ 4.)

By requiring a permit for

instruments, and banning them otherwise, the Capitol police ensure that they are aware
of, and can plan for, the use of instruments. Cf. Kissick, 956 F. Supp. 2d at 1004 (state
has a significant interest in requiring an advance permit for every event reasonably
expected to attract large crowds, since they can be disruptive “solely by dint of their
size”; permitting scheme “allows police to anticipate a disturbance without waiting for an
actual violation of a noise ordinance”).
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Morris argues that the no-instrument rule is not tailored to restricting excessive
noise, pointing out that it includes all musical instruments “regardless of the volume of
sound or noise emitted, and regardless of the time of day at issue.” (Pl.’s Br. Opp’n (dkt.
#29) 31.)

He argues that defendants instead could enforce reasonable noise-level

restrictions on the use of instruments, which would permit some musical expression while
ensuring that they could manage the volume of noise inside the Capitol. But a regulation
is not invalid just because some less-restrictive alternative means might also serve to help
Capitol police manage the noise in the Capitol. See Ward, 491 U.S. at 800.
Furthermore, the rule in this case appears to leave open ample alternative channels
for Morris and others to express themselves. Speakers are free to use their voices within
the Capitol; to request a permit to play an instrument; or to play an instrument outside
the Capitol. Admittedly, none of these alternatives may be perfect, since Morris has
credibly averred that the use of the drum is a sacred form of musical prayer to the
Chippewa people, permitting the expression of “feelings, emotion, and spiritual energy
that cannot be expressed with the human voice alone.” (Lincoln Morris Aff. (dkt. #28)
¶ 37.) Requesting a permit does impose something of a burden on the speaker. Kissick,
956 F. Supp. 2d at 1005. And playing outdoors could render it more difficult (although
not impossible) to reach particular audiences, such as elected public officials who work
within the Capitol building.4

But again, a restriction is not unconstitutional merely

This court has previously rejected Morris’s argument that it is not feasible to play outdoors due
to cold weather. See Kissick, 956 F. Supp. 2d at 1006 (“Events smaller than 100 persons need not
permit to proceed on the lawn just outside the Capitol, and in that way participants may reach
out to all who enter and exit the building. Although winter and other inclement weather makes
this a decidedly less attractive option for much of the year, this is not a case in which a speaker’s
4

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because it fails to provide a “perfect substitute[] for those channels denied to plaintiff[]
by the regulation at hand.” Marcavage v. City of N.Y., 689 F.3d 98, 107 (2d Cir. 2012).
Morris is free to play outdoors to reach public officials as they enter the building, or to
convey his message via his voice (even if it cannot communicate the same level of feeling
that the drum can communicate), or to seek a permit. These certainly appear to be
“feasible alternatives” to unpermitted drumming within the Capitol; at the very least, the
rule does not clearly foreclose alternative channels of speech, which again is the standard
for qualified immunity.5
Morris also cites a number of cases involving noise-related ordinances that he
contends support his position. First, he points to Deegan v. City of Ithaca, 444 F.3d 135
(2d Cir. 2006). At issue in that case were ordinances that prohibited “unreasonable”
noise, which the City interpreted to prohibit any noise that could be heard 25 feet away.
Id. at 140. The court noted that under this interpretation, “the decibel level of speech
that would comply with the 25 foot rule was often lower than the decibel level generated
by the foot steps of a person in high heeled boots, conversation among several people, the
opening and closing of a door, the sounds of a small child playing on the playground, or
the ring of a cell phone.” Id. at 143. Because the regulation prohibited “most normal

‘ability to communicate effectively is threatened.’”) (internal citation omitted).
Morris argues that the defendants have not produced evidence of the standards they use in
granting musical instrument permits. Even assuming this is defendants’ burden, they have
produced a declaration from Susan C. Barcia, the Executive Staff Assistant to the Chief of Police
for the Division of Capitol Police of the Wisconsin Department of Administration. (Dkt. #32.)
Barcia indicates that the vast majority of permit applications have been approved, including at
least 278 permits for musical performances in the Capitol over the last five years. (Id. at ¶ 15.)
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human activity,” the court held it undoubtedly restricted far more speech than was
required to eliminate excessive noise, rendering it unconstitutional as applied. Id.
Unlike Deegan, however, this case does not involve a blanket cap on sound that
exceeds a certain volume. It does not even involve a blanket cap on music. Rather, the
rule at issue imposes a permitting requirement only on musical instruments, which
defendants report are capable of producing sound at volumes that overwhelm human
voices. Regardless, it does not flatly prohibit “most normal human activity,” like the
regulation in Deegan, and so that case is not helpful to Morris -- at least not insofar as
establishing a clear violation of his constitutional rights.
Morris next cites United States v. Doe, 968 F.2d 86 (D.C. Cir. 1992), which
involved an ordinance prohibiting the operation of all motorized equipment or machinery
(including all audio devices) that emitted noise in excess of 60 decibels at 50 feet, as
applied to Lafayette Park.

The government asserted that it had an interest in

maintaining “tranquility,” which the court rejected in light of the character of the park at
issue:
Facing Pennsylvania Avenue and located directly across the
street from the White House, it is exposed to every form of
urban commotion-passing traffic, bustling tourists, blaring
radios, performing street musicians, visiting schoolchildren.
By no reasonable measure does Lafayette Park display the
characteristics of a setting in which the government may lay
claim to a legitimate interest in maintaining tranquility.
Id. at 89. While the government did have an interest in preventing “excessive” noise, the
court held that there was no evidence showing that the 60-decibel limit was a reasonable
choice “to promote the government’s interest in maintaining an appropriate level of
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sound volume in a traditional public forum park during a permitted demonstration.” Id.
at 91.
Like Deegan, Doe placed a blanket noise level regulation on a public forum,
precluding all music and speech making use of audio devices above a certain decibel level.
Again, the present case is distinguishable. Musical instruments are permitted, so long as
the speaker receives clearance from the Capitol police ahead of time; and a speaker may
still make use of his voice to communicate within the building itself. Furthermore, while
the Capitol is certainly either a designated or traditional public forum, there are concerns
with sound management inside a government building, where others are attempting to
work, that simply do not exist in an outdoor park.

Said another way, there is a

meaningful difference between flatly banning all forms of sound above an arbitrary
decibel limit, and requiring advance permission for musical instruments inside a
government building.
Finally, Morris cites Casey v. City of Newport, R.I., 308 F.3d 106 (1st Cir. 2002),
which involved a ban on sound amplification in the context of both singing and musical
instruments. That case is not particularly helpful, because the court merely concluded
that the lower court had not properly applied the narrow tailoring test articulated in
Ward. Despite the potential problems with the ordinance in that case, however, the First
Circuit held that there was “no basis in law for ordering the entry of judgment for
appellants.” Id. at 120. The court, therefore, remanded for the proper narrow-tailoring
analysis, instructing the court below to consider whether merely enforcing the alreadyexisting noise ordinance would adequately further the government’s interest in noise
17

reduction, given that there was nothing in the record addressing that question. See id. at
116, 120.6
Thus, none of the cases Morris points to make clear that the rule in this case
violates his First Amendment rights. Furthermore, the court’s own application of the
requirements of intermediate scrutiny demonstrates that the permitting requirement for
musical instruments is a constitutional restriction on time, place and manner of speech.
Regardless, on the record before this court, the officers did not violate Morris’s clearlyestablished First Amendment rights by prohibiting him from playing his drum without a
permit inside the Capitol building, and so they are entitled to summary judgment on the
claims against them in their individual capacities.
The court’s finding that the permitting requirement for musical instruments is a
constitutional restriction on time, place and manner of speech would also appear to
foreclose any claims for declaratory or injunctive relief against defendants in their official
capacity. Defendants, however, did not seek judgment on that basis with respect to
those claims. As such, pursuant to Federal Rule of Civil Procedure 56(e), the court will

In addition to the cases cited in plaintiff’s briefs, plaintiff filed a motion to supplement (dkt.
#35) and a notice of supplemental authority (dkt. #37), while the motion for qualified immunity
was pending. The court has reviewed these cases, but none apply to the permitting requirement
for musical instruments at issue in this case. In Crute, the Court of Appeals considered
administrative regulations imposing a civil forfeiture on individuals who participate in an
unpermitted “event” -- the same regulation this court considered in Kissick. (Pl.’s Mot., Ex. 1
(dkt. #35-1).) The court also reviewed the United States Supreme Court’s decision in Reed v.
Town of Gilbert, but found that the challenged signage regulation at issue in that case was
distinguishable from the musical instrument permitting requirement here. (Pl.’s Not. of Suppl.
Authority (dkt. #37-1). Both sides also provided supplemental authority on qualified immunity,
but neither case alters the well-established legal standards or the court’s analysis. (Defs.’ Not. of
Suppl. Authority (dkt. #36-1); Pl.’s Not. of Suppl. Authority (dkt. #37-2).)
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provide plaintiff with the opportunity to explain why judgment should not entered in
defendants’ favor on all official capacity claims.

ORDER
IT IS ORDERED that:
1) Defendants’ motion for partial summary judgment on qualified immunity
(dkt. #19) is GRANTED.
2) Plaintiff’s motion to supplement (dkt. #35) is GRANTED.
3) On or before March 17, 2017, plaintiff should file a brief explaining why,
in light of the court’s finding that the permitting requirement for musical
instruments is a constitutional restriction on time, place and manner of
speech, the court should not enter judgment in defendants’ favor on
plaintiff’s official capacity claims.
Entered this 3rd day of March, 2017.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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