ROGER B. COSBEY, United States Magistrate Judge.
What started as a typical family outing to Northrop High School on February 3, 2007, to attend a show choir competition culminated in Plaintiff William Larsen's arrest for disorderly conduct and resisting arrest, and subsequently, this surprisingly-complex federal lawsuit. After the charges were later dismissed, Larsen filed this 42 U.S.C. § 1983 action against Defendants Fort Wayne Police Officer Juan Barrientes, Fort Wayne Police Officer Allen Glock (together, the "Officers"), and Kevin Damerell, Northrop's Assistant Principal,
Now before the Court is a motion for summary judgment filed by the Assistant Principal Damerell concerning all of Larsen's claims (Docket #23), and a motion for partial summary judgment filed by the Officers (Docket #25) against all claims other than Larsen's ¶ 1983 excessive force claim against them.
On February 3, 2007, a show choir competition was held at Northrop High School, a public school located in Fort Wayne, Indiana, in which numerous high school show choirs, including Carroll High School, participated. (Damerell Dep. 9-10;
As a fundraiser, the Boosters contracted with Huntington Media Services to professionally videotape the competition, which could then be purchased. (Damerell Dep. 15, 33-34; Damerell Aff. ¶ 3; Larsen Dep. 113; Karl Hans Dep. 9-10; Nancy Hans Dep 10-11; Bumpass Dep 7.) As a result, no flash photography or videography was permitted during the competition.
Larsen, who had earlier dropped off his wife, Lenore, and his daughter at the school, arrived at approximately 10:15 a.m. to watch his daughter perform with the Carroll High School show choir. (Larsen Dep. 21-23). He entered the school and approached the admission table, carrying a tripod and video camera case.
The volunteer then offered to refund Larsen's admission price, but Larsen claimed that he was experiencing almost like a "bait and switch". (Larsen Dep. 34.) He told the volunteer that since Northrop was public property he could videotape and photograph whatever he wanted. (Larsen Dep. 34.) The volunteer explained to Larsen that the event had hired a professional videographer and that he was free to buy a copy of the video; Larsen responded, "Well, we will see about that," and proceeded to walk toward the gymnasium, still carrying his video equipment. (Larsen Dep. 34, 37.)
Fort Wayne Police Officer Allen Glock was off duty, working a part-time uniform security detail for FWCS at the Northrop event. (Glock Dep. 5.) He was in full police uniform and was posted outside the Northrop gymnasium doors, where he could observe the admission table. (Glock Dep. 10.) Officer Glock observed the exchange between Larsen and the volunteer, and noted that Larsen gave a rather agitated or aggravated response to the volunteer. (Glock Dep. 5, 10-13.) As a result, he followed Larsen and watched him enter the double doors leading to the gymnasium. (Glock Dep. 13.)
At this point, Officer Glock, concerned about Larsen's demeanor, approached Larsen and informed him that no flash photography or videotaping was allowed.
Larsen then left Officer Glock and entered the gym. (Larsen Dep 41.) As he was doing so, another volunteer stated: "I would like to remind everybody, there is no flash photography or videotaping allowed." (Larsen Dep. 41; Hartzler Dep. 13-14.) Larsen shot back: "The school doesn't have the right to videotape my daughter and sell her image to the public." (Larsen Dep. 41; Hartzler Dep. 13-14.) After entering the gym, Larsen found his wife and sat down with her to watch the competition, placing his video equipment under the seat. (Glock Dep. 20; Larsen Dep. 41-42; Lenore Dep. 20.)
Once Larsen took his seat, Officer Glock saw a fellow Fort Wayne police officer, Juan Barrientes, in the crowd. (Glock Dep. 22; Barrientes Dep. 11.
Officer Glock then approached Kevin Damerell, Northrop's Assistant Principal and administrative support to the Boosters' event, and discussed the situation with him. (Glock Dep. 24-25; Pl.'s Designation of Evidence Ex. X.) Damerell had already been told by Northrop's choir director that some parents had reported to him that an adult had entered the school with a video camera and had responded rudely and argumentatively when told of the videotape restrictions. (Damerell Dep. 32.) At this point, Officer Glock asserts that Damerell told him that if the situation deteriorated further or if Larsen attempted to use his video camera, he should be removed from the building.
Once seated, Larsen discussed the "no videography" rule with his wife Lenore, inquiring whether she had signed any consents for their daughter to be videotaped. (Larsen Dep. 45-47; Lenore Dep. 34-35.) Lenore then got up and asked a FWCS official whether non-flash photography was permitted; the official responded in the affirmative. (Larsen Dep. 46; Lenore Dep. 20, 35.) Seeing that he still had a
Once he confirmed that Damerell was indeed a school official, Larsen asked: "Maybe you can answer a question for me?" (Larsen Dep. 48.) Larsen then questioned Damerell about the no videography rule and whether the school had obtained releases from the performers, stating that he had not given such consent on his daughter's behalf. (Larsen Dep. 48-49.) Damerell stated that he did not know whether consents were obtained, and Larsen responded: "Well, it is my experience, in years of photography, that if you wish to videotape and sell a person's image, you need permission of anybody whose identifiable in that image before you sell it." (Larsen Dep. 48-49.) Damerell then suggested that the show choir application completed by the choir director probably provided the authorization, but Larsen stated: "My daughter is a minor and neither my wife nor I have signed any type of authorization. Certainly a show choir director doesn't have consent to authorize this on behalf of somebody else." (Larsen Dep. 49.)
Finally, Damerell suggested to Larsen that if he did not want his daughter to be videotaped, he could remove her from the competition. (Larsen Dep. 49; Damerell Dep. 38-39.) Larsen responded: "You are missing the point I am trying to make. Unless you have the consent and release of every performer here, you can videotape, but you can't sell them; otherwise you could face unforeseen consequences." (Larsen Dep. 49.) Damerell simply responded that he "look[ed] forward to hearing from [Larsen]" and then turned around and walked away. (Larsen Dep. 49.) Damerell states that during this interaction, which he describes as a "discussion", he never perceived Larsen as a threat to his or anyone else's safety and describes him as "argumentative". (Damerell Dep. 15, 17, 24, 26; Damerell Dep. 28, July 13, 2007.)
Observing Larsen's exchange with Damerell, Officer Glock became concerned about Damerell's safety, perceiving Larsen's demeanor as belligerent and boisterous. (Glock Dep. 28-29.) Consequently, Officer Glock approached the two men and told Larsen that if he videotaped the event, he would be arrested.
At this point, Officer Glock asked Damerell if his admission price could be refunded, and Damerell responded in the affirmative.
Meanwhile, the Officers and Damerell decided that, because Larsen refused to follow the officers' orders, he would be escorted from the building. (Glock Dep. 31; Damerell Dep. 35-36.) As a result, Officers Barrientes and Glock followed Larsen to his seat. (Barrientes Dep. 21.) Officer Barrientes asserts that he tried to talk reasonably with Larsen about leaving but to no avail. (Barrientes Dep. 21.) Officer Barrientes states that he finally commanded Larsen to leave the premises but that Larsen allegedly responded, "You can't make me do anything." (Barrientes Dep. 25.) While Larson has no memory of these events, Lenore, who was sitting next to him, admits that she heard the officer twice repeat the command to leave, stating that "[t]he whole incident happened so fast between `Sir, you've got to leave,' and then him being yanked out of the auditorium... [that] it was like one, two, three." (Lenore Dep. 38.)
In any event, Larsen asserts that he was quietly sitting in his seat (Larsen Dep. 59; Lenore Dep. 38-39; Simmons Dep. 12), when Officer Barrientes approached him from behind without identifying himself as a police officer and yanked him out of his folding chair by his neck in what appeared to be a choke hold or headlock.
Once Larsen was removed from the gymnasium, Officer Barrientes arrested him for disorderly conduct and resisting law enforcement. (Barrientes Dep. 39-40, 42-43, 47.) He was also given a "no trespass" notice, warning Larsen that he was no longer permitted on Northrop's premises. (Larsen Dep. 56.) All of the charges against Larsen were later dismissed. (Barrientes Dep. 42-43; Larsen Dep. 90.)
Larsen had visible marks on his neck eight to ten hours after the incident. (Baughan Dep. 22; Lenore Dep. 59, 81; Pl.'s Designation of Evidence Ex. DD.) His throat was swollen, his left elbow and right shoulder were bruised, and his upper center chest area was sore. (Larsen Dep. 77; Lenore Dep. 81.) He has been treated on a weekly basis since the incident for neck and back pain and reduced mobility. (Larsen Dep. 77; Pl.'s Designation of Evidence Ex. DD.) Due to a sudden increase in petite seizures, Larsen has been placed on Dilantin, which he contends slows his thinking and adversely affects his short term memory and coordination. (Pl.'s Designation of Evidence Ex. EE.)
Summary judgment is proper when "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 judgment as a matter of law." Fed. R. Civ. P. 56(c); Payne, 337 F.3d at 770. A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir.2005).
When ruling on a motion for summary judgment, "a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne, 337 F.3d at 770. The only task in ruling on a motion for summary judgment is "to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Id.; Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). If the evidence is such that a reasonable factfinder could return a verdict in favor of the nonmoving party, summary judgment may not be granted. Payne, 337 F.3d at 770.
A court must construe the record in the light most favorable to the nonmoving party and avoid "the temptation to decide which party's version of the facts is more likely true," as "summary judgment cannot be used to resolve swearing contests between litigants." Id. However, "a party opposing summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for trial." Id. at 771; Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (instructing that in determining summary judgment motions, "facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts.").
In his complaint, Larsen advanced a host of claims against Defendants under 42 U.S.C. § 1983, including false arrest, malicious prosecution, excessive force, and claims under the First Amendment; as well as numerous state law claims, including
In any event, after the briefing of the motions for summary judgment was completed, the parties stipulated to dismiss with prejudice Larsen's claims of "abuse of process, malicious prosecution under state and federal law, negligent infliction of emotional distress, and intentional infliction of emotional distress". (Docket #57.) Consequently, summary judgment will be entered in Defendants' favor with respect to all of Larsen's claims subject to the summary judgment motions, except however, his § 1983 false arrest and First Amendment claims.
Defendants assert that summary judgment is appropriate on Larsen's false arrest claim because the Officers had probable cause to arrest him. Ultimately, the Defendants' arguments are not persuasive.
"Probable cause is an absolute defense to a claim of wrongful arrest asserted under section 1983 against police officers." Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.2008); see also Gomez v. Adams, 462 N.E.2d 212, 222 (Ind.Ct.App. 1984) ("Proof of absence of probable cause is essential to a recovery for false arrest."); McConnell v. McKillip, 573 F.Supp.2d 1090, 1104 (S.D.Ind.2008) ("Generally, to succeed upon a claim of false arrest or false imprisonment, Indiana law requires a plaintiff to establish the absence of probable cause for the arrest."). Moreover, "[w]here an individual is arrested on multiple charges, a finding of probable cause for any one of the charges is sufficient to negate a § 1983 claim for false arrest." McConnell v. McKillip, 573 F.Supp.2d 1090, 1102 (S.D.Ind.2008); see Ochana v. Flores, 347 F.3d 266, 271 (7th Cir.2003).
"A police officer has probable cause to arrest `if, at the time of the arrest, the facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'" Chelios, 520 F.3d at 686 (quoting Wagner v. Washington County, 493 F.3d 833, 836 (7th Cir.2007)) (internal quotation marks omitted); see also N.J. ex rel. Jackson v. Metro. Sch. Dist. of Washington Twp., 879 N.E.2d 1192, 1195 (Ind.Ct.App.
Defendants argue that summary judgment is warranted in their favor on Larsen's false arrest claim because they had probable cause to arrest him for resisting law enforcement or in the alternative, criminal trespass, a closely-related crime with which he was not ultimately charged.
Under Indiana law, the crime of "resisting law enforcement" occurs when a person "knowingly or intentionally ... forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer's duties...." Ind.Code § 35-44-3-3(a)(2). "The law in Indiana is well settled that `forcibly' modifies all of the relevant verbs, `resists, obstructs or interferes....'" Blair v. City of Evansville, Ind., 361 F.Supp.2d 846, 860-61 (S.D.Ind.2005) (quoting Spangler v. State, 607 N.E.2d 720, 723 (Ind.1993)). "In addition, the Indiana Supreme Court has defined `forcibly' to mean the use of `strong, powerful, violent means ... to evade a law enforcement official's rightful exercise of his or her duties." Id. (quoting Spangler, 607 N.E.2d at 723). "A verbal refusal is not sufficient — some physical sign of resistance is necessary before the statute is violated." Morfin v. City of East Chicago, 349 F.3d 989, 997 (7th Cir.2003).
Here, Larsen suggests that the Officers lacked probable cause to arrest him for resisting law enforcement because Officer Glock never ordered him to leave during their second verbal exchange. As Larsen recalls the events, Officer Glock confirmed with Assistant Principal Damerell that Larsen's admission fee could be refunded and then asked Larsen: "Will you please just leave?" (Larsen Dep. 53.) As Larsen tells it, he perceived Officer Glock's statement as an invitation or opportunity to leave with a full refund of his admission fee, but not a direct order.
Furthermore, even if Officer Glock did order Larsen to leave during their second verbal exchange, there is absolutely no evidence of record that Larsen acted "forcibly" in his refusal to comply. Spangler, 607 N.E.2d at 723; see Wellman v. State, 703 N.E.2d 1061, 1064 (Ind.App.1998) ("[F]orce is used when an individual directs strength, power or violence towards police officers, or when he makes a threatening gesture or movement in their direction.") (citations and internal quotation marks omitted). That is, there is no evidence to suggest that Larsen used "strong, powerful, violent means" to evade Officer Glock's request that he leave the event. Id.; see Phelps v. City of Indianapolis, No. 1:02-CV-1912-DFH, VSS, 2004 WL 1146489, at *8-9 (S.D.Ind. May 10, 2004) (concluding that there was no probable cause for resisting law enforcement where plaintiff criticized the police but did not physically interfere with them or threaten to do so); Huber v. Reagan, No. NA 99-29-C H/S, 2000 WL 684231, at *5 (S.D.Ind. Apr. 25, 2000) (same). Rather, Larsen retreated from Officer Glock and quietly took his seat in the gymnasium.
As to Larsen's interaction with Officer Barrientes, Larsen's wife admits that Officer Barrientes twice ordered Larsen to leave after he sat down for the second time. Larsen emphasizes, however, that he was sitting quietly in his seat at the time and offered no sign of physical resistance. See Blair, 361 F.Supp.2d at 862 (finding no probable cause existed where plaintiff refused to move for a period of time and then started to move away from the protest zone). Moreover, according to
Nevertheless, this does not end our inquiry. As Defendants suggest, the Seventh Circuit Court of Appeals has held that "probable cause need not have existed for the charge for which plaintiff was arrested, so long as probable cause existed for arrest on a closely related charge." Biddle, 992 F.2d at 676; see Fox v. Hayes, 600 F.3d 819, 837 (7th Cir.2010) ("[A]n arrest is reasonable under the Fourth Amendment so long as there is probable cause to believe that some criminal offense has been or is being committed, even if it is not the crime with which the officers initially charge the suspect.") (emphasis in original); Williams v. Jaglowski, 269 F.3d 778, 783 (7th Cir.2001) ("Police officers are not required to be legal scholars."); Kelley v. Myler, 149 F.3d 641, 647-48 (7th Cir. 1998); Harper v. Mega, No. 96 C 1892, 1998 WL 473427, at *5-6 (N.D.Ill. Aug. 7, 1998); Kohilas v. City of Chicago, No. 92 C 7853, 1995 WL 431243, at *3 (N.D.Ill. July 19, 1995). "In order to rely on a closely-related charge, ... the officers must show that the charge can reasonably be based on the same set of facts that gave rise to the arrest and that the charge offered as justification is one that would [have recommended] itself to a reasonable police officer acting in good faith at the time the arrest was made." Williams, 269 F.3d at 783 (alteration in original; internal quotation marks and citation omitted).
Defendants assert that regardless of whether probable cause existed for the charges of disorderly conduct and resisting arrest, probable cause existed for the closely-related charge of criminal trespass. Under Indiana law, a person who "not having a contractual interest in the property, knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or that person's agent" commits "criminal trespass". Ind.Code § 35-43-2-2(a)(2). Courts have found the charge of criminal trespass to be closely related to resisting arrest and disorderly conduct. See, e.g., Kelley, 149 F.3d at 647-48 (finding that criminal trespass and resisting law enforcement are sufficiently related charges); Kies v. City of Aurora, 156 F.Supp.2d 970, 982 (N.D.Ill.2001) (treating charges of disorderly conduct and criminal trespass as reasonably related); Kohilas, 1995 WL 431243, at *3 (concluding that where plaintiff was arrested for disorderly conduct, probable cause for that charge was lacking under plaintiff's version of the facts, but probable cause still existed on the related charge of criminal trespass).
The Officers' alternative probable cause argument, however, is also unconvincing, as a material factual dispute exists preventing summary judgment on this basis. According to Larsen's telling of the events, only Officer Glock asked him to leave the school premises. Defendants assert,
Moreover, "[t]he belief that one has a right to be on the property of another will defeat the mens rea requirement of the criminal trespass statute if it has a fair and reasonable foundation." Taylor v. State of Indiana, 836 N.E.2d 1024, 1028 (Ind.Ct.App.2006); see also Olsen v. State, 663 N.E.2d 1194, 1196 (Ind.Ct.App.1996). Here, Larsen's payment of the eight dollar admission fee (arguably, in Larsen's mind, a "contractual interest") at a public school could cause a reasonable juror to conclude that Larsen's belief that he was entitled to remain on the premises had a "fair and reasonable foundation". Taylor, 836 N.E.2d at 1028 ("It is for the trier of fact to determine whether [Larsen] believed that he had a right to be on the property... and whether that belief had a fair and reasonable foundation." (citing Myers v. State, 190 Ind. 269, 130 N.E. 116, 117 (1921)). Therefore, this further bolsters the denial of summary judgment to the Officers.
The Officers also argue that they are entitled to the protection of qualified immunity on Larsen's false arrest claim. Police officers (as well as public school officials) are generally protected by qualified immunity "if their allegedly unlawful actions meet the test of objective legal reasonableness ... assessed in the light of the legal rules that were clearly established at the time the actions were taken." Hughes v. Meyer, 880 F.2d 967, 970 (7th Cir.1989) (citation and internal quotation marks omitted); Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686, 705-06 (7th Cir. 2001); Chelios, 520 F.3d at 690-91. Thus, it "protects those officers who make a reasonable error in determining whether there is probable cause to arrest an individual." Chelios, 520 F.3d at 690-91.
Viewing all the evidence in the light most favorable to Larsen, it is clearly-established that a police officer may not arrest a person for resisting law enforcement where he did not issue a definitive order and that person merely verbally sparred with the officer, did not exhibit "force" toward the officer, and then eventually retreated from the officer. See Ryan-Louie v. DeFazio, No. 2:05-CV-249 PS, 2007 WL 433067, at *7 (N.D.Ind. Feb. 2, 2007) ("Indiana law is clear that a subject who does not more than swear at an officer and invite him to arrest her does not resist law enforcement." (citing Spangler, 607 N.E.2d at 722)); Blair, 361 F.Supp.2d at 865 (denying qualified immunity to police officers who arrested protester who engaged in "verbal sparring match" with officer and refused to move); Huber, 2000 WL 684231, at *5 (denying qualified immunity where plaintiff shouted at the police but never made a physical movement in furtherance of disobedience or invited the officer to arrest him).
Likewise, it is clearly-established that an officer acting in his official capacity may not arrest a person for criminal trespass when the owner or the owner's agent has not asked him to leave the premises. See Pourghoraishi, 449 F.3d at 763. Here, according to Larsen's version of the
Larsen suggests that Defendants violated his rights under the First Amendment in two ways: first, by prohibiting him from videotaping the show choir performances, and second, by retaliating against him after he questioned Officer Glock and Assistant Principal Damerell about the no videography rule. Ultimately, neither of Larsen's First Amendment claims survive summary judgment.
"It is well established that in order to be protected under the First Amendment, images must communicate some idea." Porat v. Lincoln Towers Cmty. Ass'n, No. 04 Civ. 3199(LAP), 2005 WL 646093, at *4 (S.D.N.Y. Mar. 21, 2005). More specifically, to achieve protection under the First Amendment, a plaintiff must show that he possessed (1) a message to be communicated, and (2) an audience to receive this message, regardless of the medium in which the message is to be expressed. Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 568, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Porat, 2005 WL 646093, at *4. Therefore, the taking of photographs or videography, without more, is not protected by the First Amendment. Porat, 2005 WL 646093, at *5; Gilles v. Davis, 427 F.3d 197, 212 n. 14 (3rd Cir.2005) (stating that videotaping does not constitute a protected First Amendment activity unless it "gather[s] information about what public officials do on public property" or "has a communicative or expressive purpose"). The First Amendment is not implicated because a person uses a camera, but rather, when that camera is used "as a means of engaging in protected expressive conduct", Porat, 2005 WL 646093, at *5, or, less commonly, to "gather information about what public officials do on public property", Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000).
Here, Larsen does not argue that he was attempting to express or communicate an idea through his proposed videography of the show choir invitational or that he was gathering information about what public officials do on public property.
Furthermore, even if Larsen's proposed videography was protected by the First Amendment, "the general rule [is] that a school is not presumed to be a public forum." Mnyofu v. Bd. of Educ. of Rich Twp. High Sch. Dist., 227, No. 03 C 8717, 2007 WL 1308523, at *7 (N.D.Ill. Apr. 27, 2007) (quoting Vukadinovich v. Bd. of Sch. Trs. of Mich. City Area Schs., 978 F.2d 403, 409 (7th Cir.1992)). And here, there is no evidence to suggest that in hosting the February 3, 2007, show choir invitational, the school was open to anyone for "indiscriminate use". Id. Because the school was a nonpublic forum, it is entitled to impose restrictions on speech provided that the restrictions are reasonable. Id.; see also Pfeifer v. City of West Allis, 91 F.Supp.2d 1253, 1259 (E.D.Wis. 2000). Considering that a purpose of the show choir invitational was to serve as a fundraiser for Northrop's show choir and the sale of the professional video would raise funds for the choir, the no videography rule was a reasonable restriction to further that purpose. See, e.g., D'Amario v. Providence Civic Center Authority, 639 F.Supp. 1538, 1544 (D.R.I.1986) (finding no fault with a "no camera" rule enforced on the public attending a rock concert at a public facility).
Moreover, concerning any claim Larsen may have that Defendants unconstitutionally restricted his right to "receive and record information", see Whiteland Woods, L.P. v. Twp. of West Whiteland, 193 F.3d 177, 183 (3rd Cir.1999), rather than simply restrict his expression, that too is unsuccessful. The restriction against videography did not "meaningfully interfere" with a spectator's ability to inform himself or herself about the show choir event. Id. That is, the rule prohibiting videography regulated the "manner" in which access by spectators occurred, not the spectator's underlying right of access to the event. Id. Spectators were free to attend the performance and gather information "by means other than by videotaping", including non-flash photography. Id. Accordingly, Larsen has failed to show that the restriction against videography at the show choir event violated his First Amendment rights. See D'Amario, 639 F.Supp. at 1543 (concluding that a public civic center's invocation of a "no camera" rule by request of the musical performer "sails past ... scrutiny without difficulty"); see generally Carlow v. Mruk, 425 F.Supp.2d 225, 247-48 (D.R.I.2006) (collecting cases holding that "prohibitions on videotaping public meetings do not violate the First Amendment").
In addition, Defendants are entitled to qualified immunity on Larsen's claim that the no videography rule violated his First Amendment rights. Once a defendant raises this defense, "[t]he plaintiff
Larsen also claims that the Officers and Assistant Principal Damerell retaliated against him in violation of the First Amendment as a result of his questioning the no videography rule. This claim too is ultimately unsuccessful.
First Amendment retaliation actions require a three-step analysis.
The constitutional protection of Larsen's speech necessarily implicates the Connick-Pickering public concern test. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 571-72, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The First Amendment shields expressions from retaliatory action if they address "a matter of public concern ... determined by the content, form, and context of a given statement...." Connick, 461 U.S. at 147, 103 S.Ct. 1684. Content is the most important of the three elements, Button v. Kibby-Brown, 146 F.3d 526, 529 (7th Cir.1998) (citing Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir. 1994)), and is a question of law for the Court to determine. Cliff v. Bd. of Sch. Comm'rs of Indianapolis, Ind., 42 F.3d 403, 409 (7th Cir.1994). The test functions to separate personal disputes only incidentally connected to the public interest, from speech with a broader primary purpose, such as "to bring wrongdoing to light." Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir.1985); Swank v. Smart, 898 F.2d 1247, 1252 (7th Cir.1990). Yet, even statements addressing public concerns, the supposed "wrongdoing," for instance, remain unprotected if the comments only relate
The context and form elements of the test require interpreting the speaker's motivation and the circumstances surrounding the speech. While private goals do not automatically exclude speech from public concern status, they often provide strong evidence that the expression emanates from concerns peculiar to the individuals involved. Linhart, 771 F.2d at 1010 (explaining that the "test requires us to look at the point of the speech in question"); compare Smith v. Fruin, 28 F.3d 646, 651-52 (7th Cir.1994) (concluding that employee's complaints about second hand smoke were unprotected because he made them "on his own behalf and in his own interest"), with Wainscott v. Henry, 315 F.3d 844, 850-51 (7th Cir.2003) (finding that speech was protected where plaintiff had no personal or pecuniary interest in the subject matter of the speech). Finally, the "manner, time, and place" of the speech is relevant. Connick, 461 U.S. at 152, 103 S.Ct. 1684. Expressions made in private settings can be protected, Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), but such circumstances "tend[] to confirm their personal nature." Fruin, 28 F.3d at 653. This last point is illustrated in Landstrom, 892 F.2d at 678-79, a case in which parents requested that school officials stop physical examinations of their children and it was held that the speech, "privately and directly communicated," dealt with a personal matter rather than an issue of public concern. Id. at 679.
Here, Defendants argue that Larsen's complaints to both school officials and volunteers were not protected matters of public concern, but rather were expressions to advance his purely private interest to videotape his daughter's performance. (Damerell's Supplemental. Mem. 2-3; Officers' Supplemental Mem. 2-4.); see, e.g., Cliff, 42 F.3d at 409-10 (holding that though a teacher's complaints about class size and disorder were of public interest, they were not protected by the First Amendment because they were made in connection with advancing her personal grievance); Milwaukee Deputy Sheriff's Ass'n v. Clarke, 574 F.3d 370, 378-80 (7th Cir.2009) (concluding that deputy sheriff's published remarks calling attention to sheriff's excesses were not protected speech because they were made for the deputy's personal reasons).
Larsen, on the other hand, responds that his comments touched upon a public concern. (Pl.'s Supplemental Resp. 2.) Indeed, he seeks to paint himself as a champion of the public, who, like him, were deprived of videotaping the performance. In that regard, Larsen offers the views of ten other show choir individuals, primarily parents (including his wife), articulated well-after his arrest, who disagree with the school's rule.
At bottom, however, Larsen's various grumbles to officials at the event do not rise to the level of public concern as a matter of law. First, he has not shown that the general subject matter of his speech — the videotaping prohibition — is a matter of public concern. The solicited, and post-hoc affidavits fail to support Larsen's contention.
Moreover, the context and form prongs of the analysis indicate that the speech in question was nothing more than a personal grievance. Larsen's private interest in filming his daughter prompted rather extensive conversations, and even his "unforeseen consequences" comment (Larsen Dep. 49) was understood, easily it would seem, as a threat of "repercussion ... through means of legal action" (Pl.'s Designation of Evidence Ex. Y), all of which prompted Damerell's response of "I look forward to hearing from you" (Larsen Dep. 49). Larsen's speech also occurred in a one-on-one discussion format and solely to the individual officials and volunteers who stopped him from videotaping the show. That is, he did not raise the issue in a general way with a letter to the editor or at a school board meeting, and he never spoke with any other attendees about the matter, except his wife. This "tends to confirm" that his personal interest generated and defined his opposition to the rule. Fruin, 28 F.3d at 653. Thus, since his speech was directed solely to officials who were preventing him from filming, he cannot now claim an intent to advance a broader interest.
Consequently, for all these reasons, Larsen's retaliation claim under the First Amendment fails as a matter of law.
For the foregoing reasons, the motion for summary judgment filed by Defendant Assistant Principal Damerell (Docket #23) is GRANTED, and the motion for partial summary judgment filed by Defendants Officer Glock and Officer Barrientes (Docket #25) is GRANTED IN PART and DENIED IN PART, in that only the § 1983 false arrest and excessive force claims against Officer Glock and Officer Barrientes survive. The motions to strike filed by Defendants (Docket #33, 50, 53) are DENIED AS MOOT. Per the parties' stipulation (Docket #57), all claims against the Fort Wayne Police Department, John Doe #1, Jane Doe #2, and Fort Wayne Community Schools are DISMISSED WITH PREJUDICE.
SO ORDERED.
Larsen also advanced this suit against Fort Wayne Community Schools ("FWCS"), the Fort Wayne Police Department, and two unknown Fort Wayne police officers, John Doe #1 and Jane Doe #2. The parties have since stipulated to dismiss these Defendants with prejudice. (Docket #57.)
In addition, Defendants filed motions to strike certain additional evidence submitted by Larsen with his supplemental response brief on his First Amendment retaliation claim. (Docket #50, 53.) Because Defendants' summary judgment motions on the retaliation claim should be granted even when the evidence they seek to strike is considered, the motions to strike will be DENIED AS MOOT.
Officer Glock, however, represented in his narrative report after the incident that Officer Barrientes "placed a headlock on the subject." (Pl.'s Designation of Evidence Ex. V.)
Furthermore, though Damerell admits that at a certain point he decided Larsen should leave the building, Larsen has not pointed to any evidence that Damerell asked or encouraged the Officers to use force or to arrest him. Thus, any Fourth Amendment claim against Damerell fails at the outset. See Whitford v. Boglino, 63 F.3d 527, 530-31 (7th Cir.1995) (explaining that to state a claim under § 1983, plaintiff must show that defendants were "personally involved" in the deprivation of his constitutional rights).
Id. at 1113.
Potts is distinguishable from the instant circumstances. In Potts, the officers ordered the plaintiff to stay out of the rally if he did not relinquish the tape recorder. Here, there is a material issue of fact concerning whether Officer Glock ever ordered Larsen to leave the premises, and Officer Glock certainly never ordered him to relinquish his video equipment. Rather, Officer Glock simply ordered Larsen not to videotape and warned him that if he did, he would be arrested. Of course, there is no dispute that Larsen never did actually videotape the event or, for that matter, make any physical movement to remove his video equipment from its carrying case beneath his seat.
