HENRY M. HERLONG Jr., Senior District Judge.
This matter is before the court on the parties' cross motions for summary judgment. For the reasons set forth below, the court grants in part and denies in part Plaintiff's motion for summary judgment and grants in part and denies in part Defendants' motions for summary judgment.
This matter arises out of an incident that occurred on November 3, 2005, in Greenwood County, South Carolina. (Am. Compl. ¶ 23.) Plaintiff, Steven C. Lefemine, is the sole proprietor of Columbia Christians for Life ("CCL"), an organization that "actively seeks to raise public awareness of the horrors of abortion throughout the State of South Carolina." (Id. ¶ 17.) In order to fulfill CCL's mission, Plaintiff "and other like-minded persons, preach and carry signs" which "depict aborted babies in order to shock the consciences of those who see the signs to the horror of abortion." (Id. ¶¶ 19-20.) On "Thursday, November 3, 2005 at approximately 3:45 p.m., [] [Plaintiff] and about twenty other individuals began to establish a Christian pro-life witness" in Greenwood County, South Carolina. (Id. ¶ 23.) Specifically, the demonstration took place at the intersection of U.S. Highway 25 North and the S.C. 72 Bypass ("the intersection") which is "the busiest intersection in [Greenwood] County." (Defs. Mem. Supp. Summ. J. Attach. 6 (Mike Frederick ("Chief Deputy Frederick") Dep. 16).)
During the demonstration, Major Lonnie Smith ("Major Smith") received a telephone call from Lieutenant Randy Miles ("Lt. Miles") notifying him of complaints that had been received from motorists driving near the intersection. (Id. Attach. 8 (Major Smith Dep. 15).) In particular, Major Smith was informed that protestors were in the roadway holding graphic signs and one mother called saying that her son "was in the back seat screaming, crying because [he] had seen those signs." (Id. Attach. 8 (Major Smith Dep. 17).) Major Smith proceeded to the intersection to investigate. Deputy Brandon Strickland ("Deputy Strickland") also proceeded to the intersection to serve as backup after hearing of the complaints over the dispatch. (Id. Attach. 9 (Deputy Strickland Dep. 17).)
Prior to Major Smith or Deputy Strickland's arrival at the intersection, Lt. Miles
Major Smith then approached Plaintiff and the following conversation ensued, in part:
(Id. Attach. 3 (Transcript).) Following the conversation with Major Smith, Plaintiff and the other members of the CCL "packed up their signs and left shortly thereafter." (Am. Compl. ¶ 35.)
On November 13, 2006, an attorney from the National Legal Foundation ("NLF") wrote a letter to Sheriff Dan Wideman ("Sheriff Wideman") of Greenwood County to inform Sheriff Wideman that "CCL volunteers will be returning to the Greenwood area in the near future to exercise their First Amendment freedoms by highlighting the national tragedy of abortion." (Pl. Mem. Supp. Summ. J. Ex. 5 (Nov. 13, 2006 Letter to Sheriff).) The letter continued to state that Sheriff Wideman was "hereby put on notice that any further interference with CCL's message by you or your officers will leave us no choice but to pursue all available legal remedies without further notice." (Id. Ex. 5 (Nov. 13, 2006 Letter to Sheriff).) The NLF lawyers also mailed the same letter to Chief of Police Gerald Brooks ("Chief Brooks") of the City of Greenwood Police Department. (Id. Ex. 6 (Nov. 13, 2006 Letter to Police Dept.).)
On November 17, 2006, Chief Brooks responded to the NLF's letter stating that CCL was welcome to visit the community and exercise their rights as there are "many public places where CCL can park, assemble, and convey their message." (Id. Ex. 7 (Nov. 17, 2006 Letter).) On November 28, 2006, Chief Deputy Frederick responded to the NLF stating, in part, that Major Smith's response in 2005 was based on CCL's methodology not their content and "should we observe any protester or demonstrator committing the same act, we will again conduct ourselves in exactly the same manner: order the person(s) to stop or face criminal sanctions." (Id. Ex. 8 (Nov. 28, 2006 Letter).) On November 25, 2006, Plaintiff "and others held their prolife demonstration on the Greenwood city side of U.S. 25/S.C. 72 Bypass for fear of criminal sanctions from Greenwood County." (Am. Compl. ¶ 40.) No problems occurred during this demonstration.
CCL held another pro-life demonstration in 2007 "on the Greenwood city side of U.S. 25/S.C. 72 Bypass for fear of criminal sanctions from Greenwood County." (Id. ¶ 42.) Plaintiff currently desires to conduct a "Show the Truth Tour" in Greenwood County but alleges that he fears criminal prosecution. (Id. ¶¶ 43-44.)
Plaintiff filed a complaint against Sheriff Wideman, former Chief Deputy Frederick, Major Smith, and Deputy Strickland on October 31, 2008, alleging violations of his First Amendment rights. On February 27, 2009, Plaintiff filed an amended complaint adding Sheriff Tony Davis ("Sheriff Davis") as a Defendant. On April 5, 2010, Sheriff Davis, Major Smith, Deputy Strickland, and Sheriff Wideman filed a motion for summary judgment. On the same day, Plaintiff filed a motion for summary judgment. On April 9, 2010, former Chief Deputy Frederick filed a motion for summary judgment. Sheriff Davis, Major Smith, Deputy Strickland, and Sheriff Wideman filed a memorandum in opposition of Plaintiff's motion for summary judgment on April 22, 2010. On the same day, Plaintiff filed a memorandum in opposition of Defendants' motion for summary judgment. Former Chief Deputy Frederick filed a memorandum in opposition to Plaintiff's motion for summary judgment on April 26, 2010. On the same day, Plaintiff filed a memorandum in opposition to Chief Deputy Frederick's motion for summary judgment. Plaintiff filed replies to Defendants' motions for summary judgment on May 3, 2010 and May 7, 2010. A hearing was held on the cross motions for
Summary judgment is appropriate only "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). Rule 56(c) mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in the nonmovant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505.
Moreover, "[w]hen a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e) (2).
Plaintiff argues that his speech is "chilled and he is deterred from demonstrating with the graphic abortion signs in Greenwood County because he fears criminal prosecution for his message." (Am. Compl. ¶ 44.) Accordingly, Plaintiff brings this action under 42 U.S.C. § 1983 seeking damages, injunctive and declaratory relief for the violation of his rights of free speech, peaceable assembly, and the free exercise of religion. (Id., generally.)
Plaintiff argues that he is entitled to summary judgment because Defendants' restrictions on his speech were based on the content of his message. (Pl. Mem. Supp. Summ. J. 7.) Defendants argue that they are entitled to summary judgment because Plaintiff cannot show a violation of his federally protected rights. (Defs. Mem. Supp. Summ. J., generally); (Chief Deputy Frederick Mem. Supp. Summ. J., generally.) Specifically, Defendants argue that their restrictions on CCL's speech constituted a reasonable time, place, and manner restriction and they "could lawfully sanction or threaten sanctions for violation of any lawfully imposed restrictions." (Defs. Mem. Supp. Summ. J. 13.) Defendants also argue that they are entitled to qualified immunity. (Defs. Mem. Supp. Summ. J., generally); (Chief Deputy Frederick Mem. Supp. Summ. J., generally.)
The First Amendment of the United States Constitution protects an individual's right to freedom of expression through speech and public assembly. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); Nat'l Socialist White People's Party v. Ringers, 473 F.2d 1010, 1016 (4th Cir.1973). "The protections afforded by the First Amendment, however, are not absolute, and . . . the government may regulate certain categories of expression consistent with the Constitution." Id. "The right to use government property for one's private expression depends upon whether the property has by law or tradition been given the status of a public forum, or rather has
It is undisputed that CCL's November 3, 2005 demonstration took place within a traditional public forum. As such, Defendants could not impose a content-based restriction on CCL's speech unless the "restriction [wa]s necessary to serve a compelling state interest and . . . [wa]s narrowly drawn to achieve that end." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).
Plaintiff asserts that Defendants'"demand that CCL put down only the graphic Signs was a content-based restriction" improperly based on "the reaction of the public." (Pl. Mem. Supp. Summ. J. 9, 11.) Specifically, Plaintiff contends that
(Id. at 17 (footnote omitted).) Defendants argue, however, that they
(Defs. Mem. Supp. Summ. J. 15.)
Upon review of the totality of the evidence within the record, the court finds that Defendants' restriction on Plaintiff's speech was content-based. While Defendants contend that their restriction is content-neutral because it was not motivated by disapproval or disagreement with Plaintiff's pro-life stance, this argument confuses viewpoint neutrality with content neutrality. The United States Supreme Court has consistently "rejected the argument that viewpoint-neutrality equals contentneutrality." Capital Area Right to Life, Inc. v. Downtown Frankfort, Inc., 511 U.S. 1135, 1135, 114 S.Ct. 2153, 128 L.Ed.2d 878 (1994) (O'Connor, J., dissenting) (citing cases); see e.g., Boos v. Barry, 485 U.S. 312, 319-20, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (explaining that while a restriction
Content-based restrictions on speech "are presumptively invalid and subject to strict scrutiny." Ysursa v. Pocatello Educ. Ass'n, ___ U.S. ___, 129 S.Ct. 1093, 1098, 172 L.Ed.2d 770 (2009) (internal quotation marks omitted). Therefore, Defendants' restriction on Plaintiff's speech must (1) serve a compelling state interest and (2) be narrowly drawn to achieve that end. Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. 948. In World Wide Street Preachers' Fellowship, 342 F.Supp.2d at 637, the court reviewed whether a content-based ban on a graphic anti-abortion sign survived strict scrutiny. In World Wide, the city prohibited an evangelical group from displaying a large sign containing an enlarged photograph of a mutilated fetus. Id. at 636. The city argued, in part, that protecting young children was a compelling government interest justifying the ban. Id. at 640-41. The court concluded that assuming protecting children from these images was a compelling state interest, the defendants' blanket ban on the sign was not narrowly tailored. Id. at 641. The court explained, while the government "is not required to employ the least restrictive means conceivable . . . [i]t must, however, demonstrate narrow tailoring of the challenged regulation to the asserted interest-a fit that is not necessarily perfect, but reasonable." Id. (internal quotation marks and citation omitted). Ultimately, the court concluded that
Id.
Here, Defendants allege that their concerns for traffic safety and protecting young children served as compelling interests for preventing a breach of the peace and requiring Plaintiff and CCL members
(Defs. Mem. Supp. Summ. J. 16-17.) Despite Defendants' argument that traffic safety was a compelling interest, in his conversation with Plaintiff, Major Smith did not mention traffic safety as his reason for wanting the graphic signs down. The record evidences that two citizens made complaints; however, neither complaint stated that the signs were interfering with traffic.
(Id. Attach. 2 (Incident Report).) The record is devoid, however, of any evidence of car accidents, unusual or dangerous congestion, or any similar traffic concerns. As such, the court finds that traffic safety, under the facts of this case, was not a compelling interest to justify Defendants' restriction.
Defendants also argue that protecting young children from viewing graphic pictures was a compelling state interest that justifies their ban on the graphic pictures. One parent complained that her child saw one of the graphic signs and became frightened. (Defs. Mem. Supp. Summ. J. Attach. 2 (Incident Report).) In his conversation with Plaintiff, Major Smith explained that the signs were offensive because "small children" may see the signs. (Id. Attach. 3 (Transcript).) The court agrees that protecting children may be a compelling interest. However, strict scrutiny requires a two-step analysis. Once a compelling government interest is shown, the court must then determine whether the government's restriction was narrowly tailored to meet that compelling interest. Perry, 460 U.S. at 45, 103 S.Ct. 948.
Similar to the defendants in World Wide Street Preachers' Fellowship, Defendants restricted Plaintiff's speech by banning all graphic signs. 342 F.Supp.2d at 636.
Based on the foregoing, the court grants Plaintiff's motion for summary judgment as to the freedom of speech and assembly claims.
Plaintiff also seeks summary judgment on his free exercise of religion claim. Plaintiff asserts that "[i]n the exercise of [his] religious beliefs, CCL either displays or supervises the display of pro-life signs in Greenwood County." (Am. Compl. ¶ 57.) Therefore, "[a]s a direct and proximate result of the Sheriff's actions and policies, Mr. Lefemine's speech is chilled, and he is deterred from freely exercising constitutionally protected religion." (Id. ¶ 59.) Plaintiff alleges that Defendants' "threat of arrest or ticketing clearly forced [him] to `modify his behavior' and thereby `violate his beliefs.'" (Pl. Mem. Supp. Summ. J. 18.)
"The Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, forbids the adoption of laws designed to suppress religious beliefs or practices unless justified by a compelling governmental interest and narrowly tailored to meet that interest." Booth v. Maryland, 327 F.3d 377, 380 (4th Cir.2003). Likewise, the government, through its actions, may not suppress religious beliefs absent a compelling governmental interest and narrow tailoring.
"The Free Exercise Clause, however, does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Id. (internal quotation marks omitted). However, as discussed above, Defendants' prohibition of the graphic signs was not neutral and therefore must survive strict scrutiny. For the reasons discussed above, the court finds that Defendants' prohibition upon Plaintiff was not narrowly tailored to meet its interest. Defendants' prohibition was not narrowly tailored in order to balance meeting the government's interest in protecting children with Plaintiff's right to freely express his religious beliefs.
Defendants allege that they are entitled to qualified immunity because there was no clearly established law indicating that their conduct would violate Plaintiff's constitutional rights. (Defs. Mem. Supp. Summ. J. 23.); (Chief Deputy Frederick Mem. Supp. Summ. J., generally.) "[G]overnment officials performing discretionary functions generally are granted a qualified immunity and 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." Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (internal quotation marks omitted).
Id. (internal quotation marks omitted).
Id. at 614-15, 119 S.Ct. 1692 (internal quotation marks omitted).
In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the United States Supreme Court established a "two-step sequence for resolving government officials' qualified immunity claims." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (U.S.2009). "First, a court [has to] decide whether the facts that a plaintiff . . . allege[s] . . . [set] out a violation of a constitutional right. Second, if the plaintiff . . . satisfie[s] this first step, the court . . . decide[s] whether the right at issue was `clearly established' at the time of defendant's alleged misconduct." Id. at 815-16 (internal citations omitted). In Pearson, however, the United States Supreme Court held that "while the [Saucier test] is often appropriate, it should no longer be regarded as mandatory." Id. at 818. "The judges of the district courts . . . should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. Thus, Pearson "does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases." Id. at 821.
The court finds that the Saucier procedure is worthwhile in the instant case particularly because the first prong has
In November 2005, there was no clearly established law provided by the United States Court of Appeals for the Fourth Circuit regarding the extent to which government officials may proscribe the use of photographs of aborted fetuses in a traditional public forum. "[R]eliance on decisions from other circuits to determine that a given proposition of law is clearly established is inappropriate as a general matter." Wilson v. Layne, 141 F.3d 111, 117 (4th Cir.1998). While it was clearly established that individuals have a right to freely express their views in a traditional public forum such as sidewalks, that is not enough. "[T]he right the official is alleged to have violated must have been clearly established in a more particularized, and hence more relevant, sense." Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (internal quotation marks omitted). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id.
The court finds that, under the specific facts of this case, it was not unreasonable for Defendants to believe that their prohibition was lawful. After arriving at the intersection, Major Smith called his superior, Chief Deputy Frederick, now former Chief Deputy Frederick, to describe what was taking place. After speaking with Major Smith, Chief Deputy Frederick advised Major Smith that "the disturbance could be addressed as a breach of the peace based on the combination of the graphic nature of the signs and their proximity to the road, and that, in keeping with the law, he could order the protestors to stop waving the graphic signs; he further directed [Major] Smith to have the signs removed from areas visible from the roadway." (Defs. Mem. Supp. Summ. J. 3.); (Id. Attach. 6 (Chief Deputy Frederick Dep. 40-44).) Chief Deputy Frederick explained that based on "various constitutional law classes [he's] had, FBI Academy and in-service type training" he believed that he had a duty to "protect the public from what we see as, for example, roadway hazards, distracted motorists, et cetera. And that in this particular instance, [he] made the judgment that the danger to the motorist outweighed their right to stand six inches from the roadway and conduct themselves as they were." (Chief Deputy Frederick Mem. Supp. Summ. J. Add'l Attach. 4 (Chief Deputy Frederick Dep. 26-27).)
At the instruction of Chief Deputy Frederick, Major Smith spoke with Plaintiff about removing the graphic signs while Officer Strickland took pictures at the scene. As counsel for Plaintiff and Defendants stated during the hearing on the cross motions for summary judgment, Major Smith and Officer Strickland behaved professionally and courteously at all times during their interaction with Plaintiff and members of CCL. When faced with fulfilling its obligation to protect citizens on the roadways without infringing upon the free speech rights of Plaintiff, Defendants' decision to prohibit the graphic signs, while ultimately failing to survive scrutiny, was not unreasonable under the circumstances. "The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.
Plaintiff also brings suit against Defendants in their official capacity. "Official-capacity suits . . . generally represent.. . another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (internal quotation marks omitted). As such, Plaintiff's claims against Defendants in their official capacity are merely claims against the Greenwood County Sheriff's Office ("Sheriff's Office"). Sheriff Wideman "was the Greenwood County Sheriff at all times pertinent to the specific events alleged within this First Amendment Complaint. In his official capacity, he was responsible for enforcement of Greenwood County's laws, ordinances, and policies." (Am. Compl. ¶ 12.) "To hold [the Sheriff's Office] liable for a single decision (or violation), the decisionmaker must possess final authority to establish municipal policy with respect to the action ordered." Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir.2004) (internal quotation marks omitted).
The Sheriff's Office cannot be held liable pursuant to respondeat superior for the constitutional violations of their employees. Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 692-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, "it is when execution of a government's policy or custom, . . . inflicts the injury that the government as an entity is responsible." Id. at 694, 98 S.Ct. 2018. Plaintiff has not sufficiently pled facts to support the conclusion that it is the policy or custom of the Sheriff's Office to violate a citizen's First Amendment rights. Further, Plaintiff has not shown a policy or custom of the Sheriff's Office to utilize breach of the peace violations as a way to infringe upon a citizen's First Amendment rights. As such, Defendants are immune from suit in their official capacity. Therefore, Plaintiff is not entitled to monetary damages.
Pursuant to 42 U.S.C. § 1988(b), a prevailing party in a § 1983 action may, in the court's discretion, receive attorney's fees. Under the totality of the facts in this case the award of attorney's fees is not warranted.
Therefore, it is
