Luce, Gregory et al v. Town of Campbell, Wisconsin et al
OPINION AND ORDER granting 60 Town of Campbell, Wisconsin's Motion for Summary Judgment; granting in part and reserving in part 65 Tim Kelemen's Motion for Summary Judgment; granting 70 Community Insurance Corporation's Motion for Summary Judgment; denying in part and reserving in part 75 Gregory Luce and Nicholas Newman's Motion for Summary Judgment. Signed by District Judge William M. Conley on 6/16/15. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
GREGORY LUCE and NICHOLAS
OPINION AND ORDER
TOWN OF CAMPBELL, WISCONSIN and
COMMUNITY INSURANCE CORPORATION,
TOWN OF CAMPBELL, WISCONSIN and
In this suit under 42 U.S.C. § 1983, plaintiffs Gregory Luce and Nicholas
Newman challenge a Town of Campbell ordinance prohibiting signs, banners and other
items from overpasses on Interstate 90 within the town limits. Plaintiffs contend that
this new ordinance, which was adopted in October 2013, violates their First Amendment
rights. In addition, Luce claims that defendant Tim Kelemen, then Chief of Police for
the Town of Campbell, violated his right to petition without retaliation, invaded his
privacy and committed civil identity theft. The Town’s insurer, Community Insurance
Corporation, subsequently intervened, seeking a declaratory judgment that it has no duty
to defend or cover the claims asserted against defendant Kelemen alone.
Each party has moved for summary judgment. For the reasons explained more
fully below, the court will grant the Town’s and Kelemen’s motions for summary
judgment on plaintiffs’ claims for violation of their rights to free speech and assemble
under the First Amendment (dkt. ##60, 65), finding no genuine issue of material fact
that the challenged ordinance constitutes a reasonable time, place and manner
As explained more fully below, the court will also grant intervening
defendant CIC’s motion for summary judgment (dkt. #70), finding that the claims
asserted against Kelemen alone were all premised on his posting of internet comments
about Luce and using Luce’s personal identifying information to sign him up for
unwanted websites. Because these actions plainly fall outside the scope of Kelemen’s
employment, CIC has no duty to defend or cover them.
Finally, the court is inclined to grant judgment on Luce’s remaining retaliation
claim under the First Amendment asserted against Kelemen on the grounds that Kelemen
was not acting under color of state law when he retaliated against Luce.
defendant did not directly assert this defense, however, the court will provide Luce with
an opportunity to explain why judgment should not be entered in Kelemen’s favor on
this last federal claim.1 Fed. R. Civ. P. 56(f).
If the court grants judgment to defendant Kelemen on the First Amendment retaliation
claim asserted against him, the court will likely decline supplemental jurisdiction over
plaintiff’s remaining state law claims, and dismiss those claims without prejudice,
although plaintiff is free to address why it should not do so as well. See Groce v. Eli Lilly
& Co., 193 F.3d 496, 501 (7th Cir. 1999) (explaining that it is “the well-established law
I. The Parties
Plaintiff Gregory Luce is a resident of La Crosse County, Wisconsin. For some
time, Luce has been involved with the La Crosse Tea Party -- a group of individuals who
share common political beliefs, including a desire for lower taxes and limited government.
In keeping with his religious beliefs as a practicing Catholic, Luce also actively opposes
abortion, including President Obama’s position on abortion. Particularly relevant to this
lawsuit, Luce participates in protests against abortion and President Obama’s policies on
the pedestrian overpass that spans Interstate 90 in the Town of Campbell. Plaintiff
Nicholas Newman is also a resident of La Crosse County and involved with the La Crosse
Like Luce, Newman protested with signs and banners on the pedestrian
overpass, and wishes to do so in the future.
The Town of Campbell is located in western Wisconsin near the Mississippi River,
just north of La Crosse. Defendant Tim Kelemen was the Chief of Police for the Town
when it passed Ordinance 9.12 and during all times relevant to this action. Kelemen has
since resigned from his position as Chief of Police and is no longer employed by the
Intervenor defendant Community Insurance Corporation (“CIC”) issued a public
entity liability insurance policy to the Town of Campbell covering the time relevant to
of this circuit that the usual practice is to dismiss without prejudice state supplemental
claims whenever all federal claims have been dismissed prior to trial”).
For purposes of summary judgment, the court finds the following facts to be material
and undisputed except as otherwise noted.
this lawsuit. The Town and Kelemen tendered their defense of the claims asserted in
plaintiffs’ complaint to CIC, seeking insurance coverage. CIC accepted the defense for
both defendants, but now seeks a declaratory judgment that it has no duty to defend or
cover Kelemen for any of the claims asserted against him.
II. Facts Relevant to Plaintiffs’ First Amendment Claim
A. Interstate 90 and Overpasses in the Town of Campbell
Interstate 90 passes through the Town of Campbell just east of the WisconsinMinnesota state line. There are two vehicular overpasses and one pedestrian overpass
above Interstate 90 within the town’s limits.
The pedestrian overpass connects
Bainbridge Street and stretches over I-90, as illustrated below:
(Declaration of Scott Johnson, Ex. 1 (dkt. #62-1) 1.) As reflected in the picture, this
overpass is located near traffic lanes exiting and merging from Dawson Avenue, as shown
by the third lane in both directions of traffic. The two vehicular overpasses are similarly
located in areas where traffic is merging onto and/or off of Interstate 90.
A 2008 traffic study shows that between 23,100 and 29,500 vehicles travel on
Interstate 90 running through Campbell on a daily basis. During his employment with
the Town, Kelemen responded to numerous traffic accidents on this stretch of I-90, and
classified it as a significant risk area given the volume of traffic and frequency of
accidents. For their part, plaintiffs view this same traffic flow below the overpasses as a
“unique opportunity to share their message to both a local audience and an out-of-state
audience.” (Pls.’ Reply to Pls.’ PFOFs (dkt. #101) ¶ 24.) Plaintiffs also dispute the
assertion that this stretch of interstate has a “high accident rate.” (Pls.’ Resp. to
Campbell’s PFOFs (dkt. #89) ¶ 33.)
The Town of Campbell has never permitted advertisements to be displayed from
an overpass, though plaintiffs point out that there is a Days Inn sign located 101.5 feet
from the Bainbridge pedestrian overpass.3
B. Protest Activities
On August 6, August 17, September 11, and September 24, 2013, protests
occurred on the pedestrian overpass.4 Defendants submitted photographs and a video of
The Town also bars billboards in the Town of Campbell, including flashing signs or
signs with moving parts. (Campbell’s PFOFs (dkt. #64) ¶ 121.)
one of the protests. (Declaration of Justin H. Lessner, Exs. 1-5. (dkt. ##63-1 to 63-5).)
These exhibits show people standing on the overpass holding or otherwise affixing large
“IMPEACH OBAMA” signs, other small signs stating “HONK TO IMPEACH OBAMA,”
and American flags. In the video taken from the La Crosse Tea Party website, vehicles
can be heard honking their horn as they pass under the signs and other displays. (Pls.’
Resp. to Campbell’s PFOFs (dkt. #89) ¶¶ 130, 149.)
C. Justification for Sign Ordinance
As Chief of Police at that time, Kelemen personally witnessed these protests and
observed traffic slowing and braking in response to the signs, banners, and other items
displayed on the overpass. He also observed vehicles pulling over onto the shoulder of
Interstate 90 to take photographs and observe the signs. In addition, Kelemen received
several phone calls from residents and travelling motorists complaining about traffic
safety issues caused by these protests.5 In particular, individuals complained that drivers
had to slam on their brakes at or near the overpass.
At some point, Kelemen advised Scott Johnson, the Chairperson of the Town’s
Board, of the need to take action to prevent traffic accidents caused by the signs, as well
Kelemen also mentions a protest on December 7, 2013, which post-dates the enactment
of Ordinance 9.12.
Plaintiffs dispute that the Town’s Police Department received phone calls expressing
concerns for traffic safety because “[t]here is no record to support this statement.” (Pls.’
Resp. to Campbell’s PFOFs (dkt. #89) ¶¶ 74-75.) Plaintiffs, however, fail to point to any
records requirement. Moreover, there is no dispute that Kelemen reported receiving such
complaints to Johnson and other town officials.
as other items displayed during the protests on the pedestrian overpass.
believed the overpass sign ordinance was needed to protect traffic safety based on his
training, experience, and his personal observations of the overpass protests. Kelemen also
discussed traffic conditions on Interstate 90 in Campbell with several Wisconsin State
Patrol officers, who informed him that it is a dangerous area. Kelemen further researched
sign ordinances passed by other municipalities, including the City of Madison,
Wisconsin’s ordinance that was previously challenged in court.6
In addition, Kelemen learned of traffic incidents caused by similar overpass
protests in other parts of the country.
According to Plaintiffs, however, “[t]hese
incidents occurred in significantly different traffic environments than what is present in
the Town of Campbell.” (Pls.’ Resp. to Campbell’s PFOFs (dkt. #89) ¶ 89.) Still, there
is no dispute that these other traffic incidents were caused by similar overpass protests.
In evaluating the need for an overpass sign ordinance, Chairperson Johnson relied
on the history of the overpass, Kelemen’s concern about safety issues created by overpass
signs, the number of accidents that had occurred on Interstate 90 in Campbell, and
personal experiences in driving Interstate 90. Johnson personally drives Interstate 90 on
nearly a daily basis.
Moreover, Johnson received traffic safety training through his
employer, Waste Management, which included information on the risks of distracted
driving. While plaintiffs dispute whether Johnson’s training experience qualifies him as
See Ovadal v. City of Madison, 469 F.3d 625 (7th Cir. 2006). Plaintiffs dispute that
Ordinance 9.12 and the ordinance adopted by the City of Madison are similar because
“each addresses different overpasses and traffic patterns.” (Pls.’ Resp. to Campbell’s
PFOFs (dkt. #89) ¶¶ 85-86.) It is undisputed, however, that both Ordinance 9.12 and
the City of Madison’s ordinance prohibit individuals from displaying signs on overpasses.
an “expert in traffic safety,” (Pls.’ Resp. to Campbell’s PFOFs (dkt. #89) ¶¶ 31, 90), it is
not disputed that Johnson had training in traffic safety, nor that he relied on that and
other personal experience in evaluating the necessity for an overpass sign ordinance.
D. Ordinance 9.12
On September 10, 2013, a proposed ordinance was read into the record at a Town
of Campbell Board of Supervisors’ meeting and opened for public comment. After the
Board introduced the proposed ordinance, members of the public were allowed to speak
at the September 10th meeting. Among others, Luce spoke against enactment of the
overpass sign ordinance.
After the meeting, each member of the Town’s Board
individually spoke with the Town’s attorney regarding the overpass sign ordinance.
Then, on October 8, 2013, the Town’s Board again discussed the proposed ordinance.
At that meeting, the Town’s Board voted 4 to 1 to approve the Ordinance.
The Ordinance provides in pertinent part:
No person shall display, place, erect, post, maintain, install,
affix, or carry any sign, flags, banners, pennants, streamers,
balloons or any other similar item:
(1) on any portion of a vehicular or pedestrian bridge or
overpass that passes over a freeway or expressway as defined
in WIS. STAT. § 346.57, or a controlled access highway as
defined in WIS. STAT. § 990.01, when such highway has a
speed limit of more than 40 miles per hour, whether the
highway is under the jurisdiction of the federal, state or local
government, provided that such sign is visible from such
freeway, expressway or controlled access highway.
(2) within one hundred (100) feet of any portion of a
vehicular or pedestrian bridge or overpass that passes over a
freeway or expressway as defined in WIS. STAT. § 346.57, or
a controlled access highway as defined in W IS. STAT. §
990.01, when such highway has speed limit of more than 40
miles per hour, whether the highway is under the jurisdiction
of the federal, state or local government, provided that such
sign is visible from such freeway, expressway or controlled
(Campbell’s PFOFs (dkt. #64) ¶ 113.) As written, Ordinance 9.12 currently only applies
to Interstate 90, as the only highway in Campbell that has a speed limit over 40 miles per
E. Impact of Ordinance on Plaintiffs’ Protest Activities
On October 24, 2013, Luce and other protestors assembled at one of the
overpasses on Interstate 90 in Campbell with t-shirts that collectively spelled out
“IMPEACH” on the front and “OBAMA” on the back. Officer Zachary Fronk responded
to the overpass and advised the group that their t-shirts violated Ordinance 9.12. When
asked why t-shirts posed a problem, Fronk responded that the shirts collectively formed a
sign. Rather than receive a citation, Luce and the others left the protest area.
demonstrators videotaped this encounter with Campbell police.
(Declaration of Erin
Kuenzig (“Kuenzig Decl.”), Ex. 2 (dkt. #78-2).)
On October 27, 2013, plaintiff Newman became the first individual to receive a
citation for violating Ordinance 9.12. On the overpass that day, Newman unfurled a
United States flag, making it visible to traffic below. Kelemen then issued Newman a
citation for displaying the flag on the overpass. The encounter between Newman and
Kelemen also was videotaped by Newman and uploaded to YouTube. (Kuenzig Decl.,
Ex. 9 (dkt. #78-9).)
On November 3, 2013, Luce was planning to demonstrate his anti-abortion views
at a potential site within 100 feet of a Campbell Overpass, which could be seen by those
driving on Interstate 90. Ultimately, he did not protest at this site because of the threat
of enforcement of Ordinance 9.12.
Officers Casper and Kelemen responded to another overpass protest on December
7, 2013. This time, Casper and Kelemen issued a total of four citations, though they
found “numerous people violating the overpass sign ordinance with multiple signs,
banners, flags, pennants and balloons being displayed from the overpass.” (Pls.’ Resp. to
Campbell’s PFOFs (dkt. #89) ¶ 136.) Luce was among the protestors on the overpass on
December 7, and he received a citation.
III. Facts Relevant to Luce’s Claims against Kelemen
Beginning on or about January 12, 2014, plaintiff Luce received approximately
fifteen phone calls from individuals regarding profiles and accounts created in his name
on various dating websites for gay men, gay pornography websites, and the federal
government’s healthcare website, among others.7 (Pls.’ PFOF (dkt. #76) ¶ 123.) Luce
contacted the La Crosse Police Department, fearing that he was a victim of identity theft.
Kelemen eventually admitted to officers from the La Crosse Police Department
and the Monroe Police Department that he had signed Luce up for online memberships
and solicitations on three different occasions in early 2014 -- January 12, January 16, and
Examples of some of these unwanted websites are: Match.com, Menschatlive.com,
Gaybeardating.com, ABC’s The Bachelor, Simplygaydvd.com, Simplygaydvd.com,
Cybersocket.com, Dirty Deeds Newsletter, Gaygourney.com, Xhamster.com,
Imagefap.com, Justwatchporn.com. (CIC’s PFOFs (dkt. #72) ¶ 37.)
March 5.8 In short, Kelemen admits that his actions were motivated by revenge against
Luce for the upsetting emails and phone calls the Campbell Police Department had
received regarding Ordinance 9.12, citing Luce’s videotaping of their interactions and
posting of the same videos on YouTube. As Kelemen stated to officers, “It’s just like, you
know, you want to mess with us, because we were getting messed with, we’ll mess with
you.” (Pls.’ Reply to Def. Kelemen’s Resp. to Pls.’ PFOF (dkt. #103) ¶ 139.)9
In signing up Luce for internet solicitations, memberships, and dating websites,
Kelemen used a computer owned by the Town of Campbell. Creating these accounts
required Kelemen to input Luce’s name, email address, and phone number. According to
Kelemen, he obtained all of this information, through publicly-available websites,
including the Tea Party website, La Crosse County Land Records and the Wisconsin
Circuit Court Access. “Kelemen did not use any confidential or law enforcement means
to obtain Luce’s email addresses.” (Kelemen’s PFOFs (dkt. #68) ¶ 23 (citing Affidavit of
Timothy Kelemen (“Kelemen Aff.”) (dkt. #67) ¶ 15).) On the other hand, Kelemen was
on duty during at least some of the occasions when he acquired and used Luce’s personal
information to sign him up for unwanted websites.
The first two dates precede the filing of this lawsuit; the last date, however, does not.
Kelemen acknowledges that he became aware of this lawsuit by mid-February. The proof
of service represents that Kelemen was served on February 4, 2014, a full month before
his last admitted malicious impersonation of Luce online. (Dkt. #17.)
Not that it justifies or otherwise diminishes Kelemen’s outrageous response to these
emails and calls, Kelemen represents that the calls inundated the police department to
the point that it impacted call forwarding to the 24-hour emergency dispatch center.
(Kelemen’s PFOFs (dkt. #106) ¶ 20.) The police department also received an email
stating that Officer Nathan Casper should be shot in the head or face because he issued
citations for the violation of the Ordinance. (City’s PFOFs (dkt. #64) ¶ 159.)
Kelemen also posted several comments under the name “Bill O’Reilly” on the La
Crosse Tribune’s website, mentioning Luce by name in each post. On January 14, 2014,
Kelemen posted Luce’s home address and stated that Luce had not paid his property
taxes. On January 23, Kelemen also posted a comment that Luce may have been “Tea
Partying” too much. (Pls.’ Reply to Def. Kelemen’s Resp. to Pls.’ PFOF (dkt. #103) ¶
Kelemen again posted on January 23, stating that “Greggie disrespected the
(Id. at ¶ 155.)
Finally, on January 24, Kelemen posted a comment
stating that Luce’s car would be repossessed because Luce’s payments “bounced.” (Id. at
After the Monroe County Sheriff’s department concluded its investigation,
Kelemen was charged with Unlawful Use of a Computerized Communication System in
violation of Wis. Stat. § 947.0125(2)(e), to which he pled no contest and entered into a
After Kelemen’s conduct came to light, he was placed on
administrative leave and eventually resigned.
IV. Additional Facts Relevant to Intervenor CIC’s Declaratory Judgment Claim
A. Insurance Policy
CIC issued a policy of insurance to the Town of Campbell, covering bodily injury
and property damage, personal injury, and errors and omissions. (Affidavit of David G.
Bisek (“Bisek Aff.”), Ex. A (dkt. #36-1) p.14.) The policy defines “insured” in relevant
Your past or present employees or elected or appointed
officials while acting within the scope of their employment or
authority, and authorized volunteers while acting for you or
on your behalf, including all commissions, agencies boards,
districts, authorities or similar entities when you retain the
right to control the details of the work of these individuals or
entities . . . .
(Id. at p.15.)
Coverage under the personal injury and errors or omissions policy excludes
coverage for “intentional or knowing violation of a penal statute.” (Id. at p.5 (listing
exclusions under “personal injury” coverage; id. at p.6 (listing exclusion of “willful
violation of penal code” under “errors and omissions coverage”).)
B. Scope of Kelemen’s Employment
Kelemen described his duties as police chief to include responsibilities involving
writing the budget for the police department, maintaining the budget throughout the
year, supervising four officers, and upholding the laws and ordinances of the States of
Wisconsin and any municipal ordinances that were on file within his jurisdiction.
The Town’s Employee Policy and Procedure Manual provides in pertinent part
that the Town “expects its employees to conduct business in accordance with the letter,
spirit and intent of all relevant laws and should refrain from any illegal, dishonest or
unethical conduct.” (Affidavit of Michelle M. Ford (“Ford Aff.”), Ex. A (dkt. #73-1)
Moreover, the manual provides that “[e]mployees of the town shall use . . .
equipment [and] property . . . to transact or perform the business of the town exclusively
and for no other purpose.” (Id.) Specific to computers, the manual further provides that
“the town prohibits the use of computers and email in ways that are disruptive, offensive
to others, or harmful to moral.” (Id. at p.9.) The Town’s Ethics Ordinance No. 8-98
further provides that “covered personnel must act impartially and responsibly, in
obedience of all applicable laws, rules and regulations, in a manner that will promote
public confidence and within their scope of authority.” (Id. at p.7.)
At his deposition, Kelemen admitted the obvious -- that in signing Luce up for
websites he was not enforcing any laws or otherwise engaging in legitimate law
enforcement activity. (CIC’s PFOFs (dkt. #72) ¶¶ 41-42 (citing 12/19/14 Deposition of
Timothy R. Kelemen (“12/19/14 Kelemen Depo.”) 202-03).)
Summary judgment is appropriate if the moving party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the
court views all facts and draws all inferences in the light most favorable to the nonmoving
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
preclude summary judgment only if the “facts might affect the outcome of the suit under
the governing law.” Id. at 248.
The party moving for summary judgment bears the initial burden of showing that
there is no genuine issue of material fact and that it is entitled to relief. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). For any issue on which the nonmoving party will
bear the burden of proof at trial, the nonmoving party must then “go beyond the
pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.’”
Id. at 324 (quoting Fed. R. Civ. P. 56(e)). In that situation, it is not enough for the
nonmoving party to “simply show some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Nor may the
nonmoving party “merely rely on conclusory pleadings” to withstand the motion. Colan
v. Cutler-Hammer, Inc., 812 F.2d 357, 361 (7th Cir. 1987). Instead, the nonmoving party
must produce “evidence . . . such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248. If he fails to do so, “[t]he moving party is
‘entitled to a judgment as a matter of law.’” Celotex, 477 U.S. at 323 (quoting Fed. R.
Civ. P. 56(c)).
I. Plaintiffs’ First Amendment Claims
Plaintiffs contend, and defendants do not dispute, that their protests and other
activities on the overpass constitute expressive activity. See, e.g., United States v. Grace,
461 U.S. 171, 176 (1983) (“There is no doubt that as a general matter peaceful picketing
and leafletting are expressive activities involving ‘speech’ protected by the First
Amendment.”). There is also no dispute that the overpass is a traditional public forum.
Ovadal v. City of Madison, Wis., 416 F.3d 531, 536 (7th Cir. 2005) (holding that a
pedestrian overpass constitutes a traditional public forum). Accordingly, plaintiffs’ First
Amendment claims turn on whether Ordinance 9.12 is a constitutional time, place and
Plaintiffs’ right to assemble claim similarly turns on whether the ordinance is a
permissible time, place and manner restriction. See Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 577-78, (1980) (recognizing the right to assemble in public places,
including “streets, sidewalks, and parks,” is “[s]ubject to the traditional time, place, and
A municipality may enforce regulations of the time, place, and manner of
expression which (1) are content-neutral, (2) are narrowly tailored to serve a significant
government interest, and (3) leave open ample alternative channels of communication.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989).
The Town bears the burden of
establishing that the time, place and manner restrictions set forth in Ordinance 9.12
meet these three requirements. See United States v. Playboy Entm’t Grp., Inc., 529 U.S.
803, 816 (2000). The court will consider each requirement in turn.11
A. Content Neutral
Plaintiffs acknowledge that Ordinance 9.12 is content-neutral; and for good
reason, the ordinance “makes no reference to the content of speech” and “is wholly
indifferent to any specific message or viewpoint.” Weinberg v. City of Chi., 310 F.3d 1029,
1038 (7th Cir. 2002); see also Ovadal, 416 F.3d at 537 (“If the city had a policy that
prohibited not just Ovadal’s, but all protests and all signs on all Beltline overpasses, this
could certainly be a legitimate place and manner restriction because it would be clearly
Defendant Kelemen adopts the arguments made by the Town, although plaintiffs fail
to explain how Kelemen should be liable for the Town’s enactment of the ordinance.
While it is undisputed that Kelemen proposed the ordinance, plaintiffs fail to develop
any argument or cite to any case law in support of their presumed theory that an
individual without the authority to enact legislation nonetheless should be liable for that
enactment. To the extent that plaintiffs’ claim is premised on some theory that the
Town Board was under Kelemen’s control under a “cat’s paw” theory, the Seventh
Circuit has questioned the application of this theory in the § 1983 context. See Waters v.
City of Chi., 580 F.3d 575, 586 (7th Cir. 2009).
“A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it had an incidental effect on some speakers or
messages but not others.” Ward, 491 U.S. at 791; see also DiMa Corp. v. Town of Hallie,
185 F.3d 823, 829 (7th Cir. 1999) (“[I]n analyzing whether Hallie’s ordinance violates
the First Amendment, we do not ask whether the motives of the Board can be justified as
content-neutral time, place, and manner restrictions, but rather whether the ordinance
itself can be so justified.”). Here, Ordinance 9.12 is content-neutral.13
B. Narrowly Tailored to Serve a Significant Government Interest
Plaintiffs do not dispute that traffic safety constitutes a significant government
interest, nor could they do so now at this late date. See Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 507-08 (1981) (describing “traffic safety” as a “substantial
Plaintiffs assert that Ordinance 9.12 has only been enforced against Tea Party
members seeking to express their views on overpasses. (Pls.’ Reply to Def. Kelemen’s
Resp. to Pls.’ PFOF (dkt. #103) ¶ 113.) However, plaintiffs fail to submit any evidence
that other individuals or groups have violated the Ordinance, much less done so without
consequence. Without this evidence, an as applied challenge lacks merit. To the extent
plaintiffs are hinting at a claim premised on the Town’s adoption of the Ordinance based
on an improper motive, the court must reject this argument “rather easily” as well. DiMa
Corp. v. Town of Hallie, 185 F.3d 823, 828 (7th Cir. 1999). At least in the First
Amendment context, the court will “not strike down an otherwise constitutional statute
on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U.S.
367, 383 (1968). As such, “[t]he actual motives of those who enacted the ordinance are
irrelevant to [the court’s] First Amendment analysis.” DiMa Corp., 185 F.3d at 828.
Not only is there no claim by plaintiffs that then-Chief Kelemen manipulated the
Town Board into his “cat’s paw” for some sanctionable reason, but there is no evidence.
First, as set forth above, the board members relied on their own, separately gathered
evidence and observations. Second, even Kelemen’s desire to lash out came later, and
was essentially content neutral.
Thus, this second requirement is met if Ordinance 9.12 is
narrowly tailored to further that interest.
“A regulation is narrowly tailored if it ‘promotes a substantial government interest
that would be achieved less effectively absent the regulation.’” Weinberg, 310 F.3d at
1040 (quoting Ward, 491 U.S. at 799).
“To satisfy the narrowly tailored test, an
ordinance need not be the least restrictive method for achieving the government’s goal.”
While the Town cannot “blindly invoke safety and congestion concerns without
more,” Weinberg, 310 F.3d at 1038, the burden to put forth evidence supporting a speech
restriction is “not overwhelming,” DiMa Corp., 185 F.3d at 829. Accordingly, “[t]he First
Amendment does not require a city, before enacting such an ordinance, to conduct new
studies or produce evidence independent of that already generated by other cities, so long
as whatever evidence the city relies upon is reasonably believed to be relevant to the
problem that the city addresses.” Id. (quoting City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 51-52 (1986)).
Plaintiffs assert that the Town’s claim of traffic safety concerns is “merely
Turner Broad., 512 U.S. at 665 (“When the Government defends a
regulation on speech as a means to . . . prevent anticipated harms, . . . [i]t must
demonstrate that the recited harms are real, not merely conjectural.”).
plaintiffs argue that the Town “provides only speculation and personal opinion to
support” Ordinance 9.12, which is insufficient to justify the necessity for it. (Pls.’ Opp’n
to Campbell’s Mot. (dkt. #88) 5.) Plaintiffs also cite testimony from their expert, Dr.
Paul Dorothy, who investigated traffic flow and the overpasses in Campbell.
plaintiffs claim this evidence proves that the Town’s representatives wrongly concluded
that protests on the overpasses created traffic concerns, whether the Town was right or
wrong in its conclusion is not the proper question.
The Town “may rely upon any evidence that is ‘reasonably believed to be relevant’
for demonstrating a connection between speech and a substantial, independent
government interest.” City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39
(2002) (quoting City of Renton, 475 U.S. at 51-52) (emphasis added). Indeed, the Town
may justify Ordinance 9.12 “based solely on history, consensus, and simple common
sense.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001).
The Town has presented evidence that it relied on shared experiences driving on
Interstate 90, conversations with Wisconsin State Patrol officers, reports of complaints
from drivers who were on the Interstate during plaintiffs’ protests, and traffic incidents
caused by similar overpass protests in other parts of the country. Moreover, the Town
had information from a prior study that estimated between 23,100 and 29,500 vehicles
drive daily on Interstate 90 through Campbell, where the speed limit is 65 miles per
Whether or not this is a high volume of traffic compared to other sections of
Interstate 90, the Town’s representatives were entitled to rely on their personal
experience and common sense to determine that protesting on overpasses above the
Interstate was potentially distracting to drivers. The decision to enact Ordinance 9.12 is
further supported by the evidence of cars braking near the overpass during protests,
horns honking at protestors, complaints of drivers, the presence of on and off ramps at or
near the overpasses, and evidence of drivers pulling over to the side of the Interstate to
photograph the protests.14 At minimum, this evidence demonstrates that the Town has
done more than “blindly invoke safety . . . concerns without more.” Weinberg, 310 F.3d
Whatever plaintiff’s expert Dr. Dorothy’s after-the-fact testimony may be on the
safety risks, it is “irrelevant to the question of whether there is some evidence that does
support the [Town’s] conclusions.”
Dima Corp., 185 F.3d at 831.
“contradictory evidence would be highly probative if [the court’s] task were to discover
the objective truth about the effect of [plaintiffs’ protests on traffic in Campbell].” Id.
As already explained, however, the court’s inquiry under the First Amendment is “far
Plaintiffs also argue that Ordinance 9.12 is not narrowly tailored because it
prohibits speech within 100 feet of overpasses. To support their argument, plaintiffs
point to a Days Inn sign that is 101.5 feet from the pedestrian overpass.
plaintiffs again call upon their expert, Dr. Dorothy, who determined that the 100 foot
restriction was “arbitrary and capricious” due to a lack of “engineering justification” for
the distance. (Pls.’ Opp’n to Campbell’s Mot. (dkt. #88) 12.)
While it is somewhat concerning that the Town and its board members cannot
articulate a basis for imposing a 100-foot restriction, as opposed to, say, a 30-foot
restriction. In general, however, some distance needed to be adopted to realize the traffic
Indeed, plaintiffs’ video recordings of the protests showing passing cars honking their
horns in reaction bolster the Town’s concern that drivers were being distracted at the
time of the Ordinance’s passage.
safety goals underlying Ordinance 9.12. The fact that this distance treated the protesters
as it did Days Inn is both content neutral and imminently reasonable.15
Moreover, under the standard of review governing this case, the Ordinance “need
not be the least restrictive” means of serving the Town’s interests. Ward, 491 U.S. at
798-99 (“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 lessspeech-restrictive alternative.”).
The Town sought to limit traffic safety concerns
associated with protesting above fast-moving traffic. There is a “reasonable fit” between
the Town’s goal and the 100-foot limitation. See Lorillard, 533 U.S. at 554 (holding that
restrictions on speech withstand scrutiny where there is a “reasonable fit” between the
regulation and stated goals).
C. Ample Alternative Means of Communication
Finally, plaintiffs contend that the Ordinance leaves them “with no reasonable
alternative means to reach their intended audience.” (Pls.’ Resp. Br. (dkt. #88) 15.) The
court credits plaintiffs’ contention that the pedestrian overpass provides access to a hightraffic area of individuals travelling through Campbell, but just as the content-neutral
regulation of speech need not be the least restrictive possible, “an adequate alternative
does not have to be the speaker’s first or best choice, or one that provides the same
Of course, the Days Inn sign is likely elevated and, therefore, more visible from the
highway. At the same time, a simple hotel sign is likely less distracting than a protest.
audience or impact for the speech.”16 Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir.
2000). Rather, the regulation will stand unless an entire medium of public expression
across a particular community has been foreclosed. See Hill, 530 U.S. at 726.
Here, Ordinance 9.12 does not ban plaintiffs’ protests or speech. It only prevents
them from protesting on or within 100 feet of overpasses with items visible to high speed
drivers below. For example, plaintiffs may “go door-to-door to proselytize their views
[and] may distribute literature in this manner . . . or through the mails.” Frisby v. Schultz,
487 U.S. 474, 484 (1988). Additionally, they may contact their intended audience by
telephone, speak at public meetings, place messages on cars, or use local media.
Perhaps an even more intriguing alternative channel to plaintiffs is the continued use of
YouTube to broadcast their speech to Internet users around the world. (Kuenzig Decl.,
Exs. 2, 9 (dkt. ##78-2, 78-9).)17 In short, Ordinance 9.12 “permits the more general
dissemination of [plaintiffs’] message” in Campbell. Id.
In addition to using other modes of communication, plaintiffs can also display
signs and banners in public parks, near other roadways, and other property outside of the
100-feet area surrounding Interstate 90, including one would suppose at the end of the
on and off ramps, where traffic would have slowed. While these options may be less
Curiously, at his deposition, Luce disclaimed that he was attempting to attract the
attention of motorists when he displayed signs from the overpass. (Campbell’s PFOFs
(dkt. #64) ¶ 61 (citing Deposition of Gregory Luce (“Luce Depo.”) (dkt. #50) 44.)
See also “Town of Campbell WI Police Write Citations For Displaying US Flag,”
available at https://www.youtube.com/watch?v=DPmSgMTXiqo; “Town of Campbell WI
desirable for plaintiffs because of their more limited access to an audience, “[s]o long as
the amount of speech left open is ample, it is not fatal that the regulation diminishes the
total quantity of speech.” City of Watseka v. Ill. Public Action Council, 796 F.2d 1547,
1553 (7th Cir. 1986).
For all of these reasons, the court finds as a matter of law that Ordinance 9.12 is a
constitutional time, place, and manner regulation of speech. Therefore, the court will
grant the Town’s and Kelemen’s respective motions for summary judgment on plaintiffs’
first and second causes of action, and in turn deny plaintiffs’ motion on those same
II. Luce’s Claims against Kelemen
Luce asserts three claims against Kelemen, all relating to his admitted posting of
comments about Luce on the internet and using Luce’s personal identifying information
on the internet to enroll him in various web-sites. (Am. Compl. (dkt. #28) ¶ 89 (First
Amendment retaliation claim); ¶¶ 94-95 (Wis. Stat. § 995.50(2)(a) claim); ¶ 103 (Wis.
Stat. §§ 932.201, 895.446 claim).) Luce’s First Amendment retaliation claim is pursued
under 42 U.S.C. § 1983, while the other two state law claims are before the court on
pendent jurisdiction. To state a claim under § 1983, a plaintiff must establish that the
defendant acted under color of state law, among other requirements. Cruz v. Safford, 579
F.3d 840, 843 (7th Cir. 2009).
The parties failed to address this threshold issue, though the parties’ discussion of
whether Luce was required to abide by the notice requirement in Wis. Stat. § 893.80
before bringing certain claim against government bodies or officials highlights a closely
related issue of whether Kelemen was acting under color of state law at all. Whether an
individual acts under color of state law turns on another question: whether “the official
was exercising state or local authority, or acting only as a private individual.” 1A Martin
A. Schwartz, Section 1983 Litigation: Claims and Defenses § 5/05[A] (4th ed. 2014).
Importantly, one can abuse his or her authority, but still act under color of state
law: “Misuse of power, possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’
state law.” Monroe v. Pape, 365 U.S. 167, 184 (1961); see also West v. Atkins, 487 U.S. 42,
49-50 (1988) (“It is firmly established that a defendant in a § 1983 suit acts under color
of state law when he abuses the position given to him by the State”); Honaker v. Smith,
256 F.3d 477, 484-85 (7th Cir. 2001) (explaining that action is taken under color of
state law “when it involves a misuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law”).
Even so, a misuse of power necessarily involves use of power possessed by virtue of
state law, and the facts before this court on summary judgment demonstrate that
Kelemen was not using his power as the police chief in allegedly taking retaliatory actions
against Luce in response to his vigorous opposition of Ordinance 9.12. Cases in which
courts have found that the § 1983 defendant acted under color of state law involve
(1) the defendant’s express or implied invocation of state authority; or (2)
instances where the defendant could not have acted in violation of the plaintiff’s
constitutional rights but for his state authority. Neither of these two instances is at play
First, Kelemen’s acts of enrolling Luce in the above-described websites and posting
comments about him online were done anonymously. There is no evidence Kelemen
used or displayed his police power or otherwise invoked his authority in carrying out
these actions. In Latuszkin v. City of Chicago, 250 F.3d 502, 503, 505-06 (7th Cir. 2001),
the Seventh Circuit affirmed a dismissal of a § 1983 lawsuit against an off-duty police
officer driving under the influence of alcohol, who struck and killed the plaintiff’s wife.
The court explained that in determining whether the officer acted under color of state
law “[t]he important consideration . . . is the nature of the specific acts performed.” Id.
at 505-06. In that case, the defendant officer “was not engaged in police activity,” had
not “displayed any police power,” nor had he “possessed any indicia of his office at the
time of the accident.” Id. at 506. Instead, the officer was “engaged in entirely private
behavior at the time of the accident.” Id. So, too, here. Kelemen in no way displayed
his police power -- either expressly or implicitly -- in engaging in the alleged retaliatory
acts. To the contrary, Kelemen attempted to hide his identity as the police chief.
Second, there is no evidence Kelemen used his authority, either to gain the
necessary personal information to sign Luce up for websites or to comment on online
forums. Instead, the evidence shows that Kelemen accessed Luce’s personal information
from publicly available websites, or at least plaintiff has failed to raise a genuine issue of
material fact even suggesting otherwise.
Importantly, this is not a case where the
defendant was only able to violate the plaintiff’s rights because of his state authority.
See, e.g., Wudtke v. Duvel, 128 F.3d 1057, 1064 (7th Cir. 1997) (finding school
superintendent who sexually assaulted teacher and threatened to disapprove her renewal
of her teacher’s license if she did not engage in sexual acts with him, acted under color of
state law by “explicit invocation of his state-granted powers”). Put another way, any
private citizen could have engaged in Kelemen’s admitted acts. Carlos v. Santos, 123 F.3d
61, 65 (2d Cir. 1997) (“Any citizen may perform these acts:
they were not made
possible only because” the town board members were clothed with official authority.).
On this record, plaintiff can only point to Kelemen’s use of a police department
computer in sending certain of his electronic messages. That is not enough. Cases in
which courts have relied on the defendant’s use of public resources involve access to
information peculiar to that position. See, e.g., McDade v. West, 223 F.3d 1135, 1140
(9th Cir. 2000) (holding that an employee of the district attorney’s office acted under
color of state law when the employee illegally used the district attorney’s office’s
computer database to access information); Haines v. Fisher, 82 F.3d 1503, 1505-06 (10th
Cir. 1996) (finding officers acted outside of the scope of § 1983 when they staged a
robbery as a prank, even though the officers used the town’s M16 automatic rifle and
drove to the 7-Eleven in a police car belonging to the town). Indeed, the Haines case
presents a much closer fact pattern than the case at issue here.
Nor is it enough that the purported reasoning or motivation for taking certain
actions (however misguided) comes from the defendant’s public employment.
example, in Wilson v. Price, 624 F.3d 389 (7th Cir. 2010), after receiving several
complaints about cars parked illegally in front of a repair shop, the defendant alderperson
drove to the shop, demanded that the cars be moved, and after an employee refused his
order, beat the plaintiff employee until he was unconscious. Id. at 390. The Seventh
Circuit determined that while he was arguably acting under color of state law when he
went to the repair shop to investigate the complaints, “it is indisputable that Price
crossed that line and entered the realm of law enforcement—which is wholly unrelated to
the duties of a legislator—the moment he demanded that Wilson move the cars.” Id. at
On the undisputed record, therefore, defendant Kelemen appears entitled to
summary judgment in his favor on plaintiffs’ § 1983 claim, which requires that he be
acting under color of state law. Because this issue was not raised expressly by defendant,
however, the court will provide plaintiff ten days to identify any facts of record
supporting a finding that Kelemen was acting under color of state law.
The court will also reserve on the parties’ cross motions for summary judgment on
Luce’s state law claims against defendant Kelemen. If the court, as anticipated, grants
summary judgment to Kelemen on plaintiff’s First Amendment retaliation claim -- on an
issue not material to plaintiff’s state law claims -- the court will likely decline to exercise
its supplemental jurisdiction over the state law claims and will dismiss them without
prejudice. See Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999) (explaining that
it is “the well-established law of this circuit that the usual practice is to dismiss without
prejudice state supplemental claims whenever all federal claims have been dismissed prior
to trial”); see also 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if the district court has
dismissed all claims over which it has original jurisdiction.”). Plaintiffs are free to address
this question as well within the next ten days. No further briefing on these issues will be
allowed unless expressly invited by the court.
III. Intervenor’s Declaratory Judgment Claim
Finally, the court addresses CIC’s motion. The court could decline to exercise its
supplemental jurisdiction over this claim as well, but as already explained above, the
record establishes that Kelemen was acting outside of the scope of his employment, and
therefore also outside the definition of “insured” under the policy. See Groce, 193 F.3d at
502 (explaining that a court may depart from the “usual practice” and continue to
exercise supplemental jurisdiction over “‘doomed litigation’ that will only be dismissed
once it gets there” for lack of merit); see also In re Repository Tech., Inc., 601 F.3d 710, 725
(7th Cir. 2010) (noting that the district court retains supplemental jurisdiction “because
it invades no state interest–on the contrary, it spares overburdened state courts
additional work that they do not want or need–for the federal court to dismiss the claim
on the merits, rather than invite a further, and futile, round of litigation in the state
To determine whether a duty to defend and cover exists, the court first determines
whether the insurance policy “makes an initial grant of coverage -- i.e., whether the
insurer has a duty to indemnify its insured -- for the claims asserted.” Estate of Sustache v.
Am. Family Mut. Ins. Co., 2008 WI 87, ¶ 22, 311 Wis. 2d 548, 751 N.W.2d 845. If the
court finds an initial grant of coverage, the court then “examine[s] the policy’s exclusions
to determine whether they preclude coverage.” Id. at ¶ 23. If an exclusion is found to
apply, the court then “look[s] to see whether any exception to that exclusion reinstates
coverage.” Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶ 24, 268 Wis. 2d 16,
673 N.W.2d 65.
CIC asserts two bases in support of its argument that it has no duty to defend or
cover the claims asserted against Kelemen. As already discussed, CIC contends that the
acts giving rise to Luce’s First Amendment retaliation and state law claims, Kelemen must
have been acting within the scope of his employment or authority. Since the court has
found he was not, Kelemen was not an “insured” as defined by the policy.
Kelemen were to qualify as an insured under the policy, his alleged acts constitute willful
violation of penal statutes, and therefore fall within a Policy exclusion. The court need
not take up CIC’s second argument, because the record establishes as a matter of law that
Kelemen was acting outside of the scope of his employment when he signed Luce up for
various websites and posted comments about him online.
In pertinent part, the policy limits “insured” to employees “acting within the scope
of their employment or authority.” (Bisek Aff., Ex. A (dkt. #36-1) p.15.) Relying on the
Restatement (Second) of Agency, the Wisconsin Supreme Court has defined scope of
(1) Conduct of a servant is within the scope of employment
if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and
space limits; [and]
(c) it is actuated, at least in part, by a purpose to serve the
Olson v. Connerly, 156 Wis. 2d 488, 499, 457 N.W.2d 479, 483 (1990).
“[c]onduct of a servant is not within the scope of employment if it is different in kind
from that authorized, far beyond the authorized time or space limits, or too little
actuated by a purpose to serve the master.” Id.
At least at times when he was gathering Luce’s information and signing him up for
websites, it is undisputed that Kelemen was on the clock. Kelemen has also raised a
genuine issue of material fact, if barely, by contending that he engaged in these acts, at
least in part, to serve the Town, supposedly in an attempt to “distract” Luce.
Kelemen has failed to raise a genuine issue of material fact as to whether his conduct is
“the kind he is employed to perform.” Indeed, as mentioned already, Kelemen admitted
at his deposition that the actions he took were his own and not in his capacity as a law
(12/19/14 Kelemen Depo. (dkt. #56) 202-206 (Question: “Is it
your contention that you were acting as the Chief of Police for the Town of Campbell
when you posted insults about Mr. Luce on the La Crosse Tribune website?” Answer: “I
would say that I was acting on my own.”; admitting that signing Luce up for websites was
inconsistent “with the rules [his] employer expected [Kelemen] to abide by” and was not
done “to enforce any law”). To the contrary, Kelemen’s misconduct falls woefully short
of the minimum professionalism and detachment one should reasonably expect of a
police officer, much less a Chief of Police.
Kelemen’s response to CIC’s argument is flimsy at best. First, Kelemen points to
his belief that the conduct was not a violation of any criminal statute. (Kelemen’s Opp’n
(dkt. #82) 6.) Even assuming this belief was reasonable, it utterly fails to support a
finding that he was acting with the scope of his employment -- not all non-criminal
actions are within the scope of his employment and authority -- especially in light of his
admissions to the contrary. Second, Kelemen argues that he was acting in his employer’s
interest in engaging in these acts. (Id. at 7.) Once again, this argument misses the mark.
Kelemen could have “occup[ied]” Luce’s time in any number of ways which would have
fallen outside of the scope of his employment (e.g., by holding him hostage). It is not
enough for an employee to believe he was acting in the interest of his employer for his
conduct to fall within the scope of his employment.
Based on Kelemen’s own admissions, the conduct underlying Luce’s First
Amendment retaliation and state law claims is not the kind Kelemen was employed or
authorized to perform.
As such, the court will grant CIC’s motion for summary
judgment, and enter a declaratory judgment that CIC has no duty to defend or cover
Luce’s claims specific to Kelemen.
IT IS ORDERED that:
1) Defendant the Town of Campbell, Wisconsin’s motion for summary judgment
(dkt. #60) is GRANTED.
2) Defendant Tim Kelemen’s motion for summary judgment (dkt. #65) is
GRANTED as to plaintiffs Gregory Luce and Nicholas Newman’s First
Amendment free speech and freedom of assembly claims (first and second
causes of action in the amended complaint) and RESERVED in all other
3) Intervening defendant Community Insurance Corporation’s motion for
summary judgment (dkt. #70) is GRANTED and judgment shall be entered
DECLARING that CIC has no duty to defend or cover claims asserted by Luce
against defendant Kelemen.
4) Plaintiffs Gregory Luce and Nicholas Newman’s motion for summary
judgment (dkt. #75) is DENIED with respect to plaintiffs’ First Amendment
free speech and freedom of assembly claims (first and second causes of action
in the amended complaint) and RESERVED in all other respects.
5) On or before June 26, 2015, plaintiff Luce should submit a proffer as to why
the court should not grant judgment in favor of defendant Kelemen on
plaintiff’s First Amendment retaliation claim because Kelemen is not acting
under color of state law as required under 42 U.S.C. § 1983.
Entered this 16th day of June, 2015.
BY THE COURT:
William M. Conley
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