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Mattia v. City of Center Line

United States District Court, E.D. Michigan, Southern Division

December 18, 2017

CITY OF CENTER LINE, MICHIGAN, DENNIS CHAMPINE, in his official capacity, and WILLIAM DEMPSEY, in his official and individual capacity, Defendants.



         Plaintiff Michael Mattia, a professed Christian who believes that abortion is wrong and violates the tenets of his religion, likes to share his opinions publically by displaying large signs at busy intersections depicting aborted fetuses. On one of these occasions, police officers for the City of Center Line ordered Mattia to desist displaying his sign and threatened to arrest him (he says) for breach of the peace if he didn't. Mattia complied, but then filed the present lawsuit alleging a violation of his First Amendment right to speak freely in a public forum. He now seeks a preliminary injunction allowing his activity. Mattia has demonstrated a likelihood of success on the merits of his claim, and because the other factors favor an injunction, the Court will grant the motion.


         The facts of the case are taken from the verified complaint and the motion papers, which include several declarations. Mattia alleges that he is a Christian who believes that terminating a pregnancy at any stage is the wrongful killing of an innocent person. He seeks to share with the public his religiously-based beliefs about abortion. His preferred method of communication is using handheld signs on public sidewalks next to well-traveled streets. Mattia believes that in order accurately to convey his message about abortion, he must illustrate the physical consequences of the abortion procedure itself. Consequently, the signs frequently include pictures of aborted fetuses. Mattia also includes his phone number on the sign to invite discussion about his views.

         Mattia does not seek a crowd when he carries his sign, and he believes that a crowd is not likely to form. He says that he does not obstruct access to public sidewalks or prevent others from passing. His display does not obscure traffic signs or signals or otherwise interfere with the vision of drivers. He does not solicit in any way or advocate for violence against abortion providers or supporters.

         Mattia has engaged in this type of expression for almost two decades, primarily in Michigan. He carries his sign four or five days a week and for two to four hours a day. He occasionally has interacted with police about his signs, but the police have never prohibited him from displaying his message.

         In July 2016, Mattia moved his residence to Center Line, Michigan. He continued to carry his signs pertaining to abortion on an almost daily basis. One of his preferred display locations was a public sidewalk just south of Freeway I-696 in Center Line, where he held signs with images of aborted fetuses. He did so without incident.

         At around 5:00 p.m. on August 26, 2016, Mattia carried his sign on a public sidewalk at or near the intersection of East Ten Mile Road and Van Dyke Avenue in Center Line. He chose that location because of the significant vehicular traffic passing through downtown Center Line. His sign included a picture of an aborted fetus as the backdrop on each side. Superimposed on the images were the words “Abortion: God Forgives and Heals, ” and on the flip side, “God Forgives, Heals Abortion, ” “Women Do Regret Abortion, ” and “Men Regret Lost Fatherhood.” The side with more text obscured more of the picture than the other side with just one phrase.

         Mattia held the sign at chest level as he walked on the sidewalks adjacent to Ten Mile Road and Van Dyke. He flipped the sign around frequently so both sides were visible to those passing through the intersection. He says that he remained entirely on the sidewalk with his sign at all times without obscuring the visibility of traffic signs or signals. Soon after Mattia's arrival, an unidentified female approached Mattia at the intersection. She stood about five to seven feet away from him and held a sign stating something along the lines of “Don't listen to this guy, ” with an arrow pointing towards Mattia. Neither party tried to interfere with the other's expression, and the interaction was peaceful at all times. Mattia remained at this intersection for approximately one hour without disturbance. He did not notice any drivers experiencing difficulty passing through the intersection.

         At around 6:00 p.m., Center Line police sergeant William Dempsey and Officer Andy Percha approached Mattia. Dempsey ordered Mattia to provide his driver's license and personal information. After reviewing Mattia's information, Dempsey told Mattia that he may not continue to display his sign, referencing complaints Dempsey had received about the messaging. Based on prior interactions with police officers, Mattia asserted his constitutional right to carry his sign. Dempsey replied that the First Amendment did not apply in this situation and proceeded to his police car to make a phone call. Officer Percha remained with Mattia during the phone call and prohibited him from displaying his sign.

         Approximately 20 minutes later, Dempsey informed Mattia that he had discussed the sign issue with his superiors and that Mattia needed to leave the intersection, taking his sign with him. Mattia reiterated that he had a First Amendment right to display a sign in public even if someone takes offense at the message, but Dempsey disagreed. Dempsey explained that a sign with mere text would be within Mattia's right. Dempsey concluded that the sign containing an image of an aborted fetus is not constitutionally protected because it is “so shocking.” He informed Mattia that a simple drawing that was not as “vile” or “grotesque” would be permitted, but because people had called and complained about Mattia's sign, it was not covered by the First Amendment. Dempsey added that Mattia's activity violated the law for disturbing the peace, having verified the matter with his superiors.

         Mattia believed that the sergeant was mistaken. He referenced his prior interactions with law enforcement regarding his signs and their acknowledgment of his constitutional right to use that particular sign. He also mentioned legal precedent upholding his activity. Dempsey reiterated that Mattia was disturbing the peace and that he would have to move on. Mattia asked how he could cause a disturbance without interfering with pedestrian or vehicular traffic. Dempsey then reminded Mattia that because people had called the police to complain about his sign, Mattia had disturbed the peace on a “psychological” level. Dempsey told Mattia to forget about his First Amendment right because his activity was causing a disturbance in violation of the ordinance. Dempsey did not specifically cite any ordinance Mattia was allegedly violating. When Mattia asked to see the ordinance, Dempsey referred Mattia to a website containing city ordinances, advising him to look it up. Mattia then asked about the consequences he would suffer if he continued to carry his sign. Dempsey warned that he would be criminally cited or arrested for violating the breach of the peace ordinance. Believing he could not convey his message without his sign and fearing arrest, Mattia left the intersection around 6:30 p.m. He has not displayed a sign on a public sidewalk in Center Line since that day.

         Per Sgt. Dempsey's suggestion, Mattia subsequently researched the breach of the peace ordinance online and discovered Center Line ordinance section 46-146 (Breach of Peace), which states, “Any person who shall make or assist in making any noise, disturbance, trouble or improper diversion, or any rout or riot, by which the peace and good order of the city are disturbed, shall be guilty of a breach of the peace, and disorderly conduct.” Because Mattia was troubled by the ordinance's application to his sign use, he went to city hall to ask city manager Dennis Champine about its application to his activity. Mattia requested a meeting with Champine, who met him in the lobby and ushered Mattia into a nearby conference room. Champine then informed Mattia that he had spoken with Sgt. Dempsey about the matter and subsequently handed Mattia a copy of ordinance section 46-146. Champine identified that ordinance as applicable to Mattia's sign use. Mattia explained that he was already familiar with the ordinance, but did not believe it should apply to his sign. Champine acknowledged that the language in the ordinance is subjective, but informed Mattia that he would need to cite case law supporting his constitutional claim before Champine could instruct the police department to refrain from enforcing it against Mattia. Champine additionally noted that responding to complaints about Mattia's sign display imposes a financial burden on the city.

         Thereafter, Mattia, through counsel, sent a letter dated September 14, 2016 to Champine and the Center Line director of public safety, which included references to case law explaining why the ban on Mattia's sign use and the application of section 46-146 is unconstitutional. The city replied through its attorney by letter dated October 20, 2016, reiterating that Mattia will not be allowed to display his sign on any public sidewalk in the city. The letter did not address Mattia's concern about the application of section 46-146 to his sign use. Instead, the city cited various sections of Center Line ordinance section 1510 to support banning Mattia's signs. The letter included the following prohibitive language of section 1510:

(3)(f) No signs or billboards on any street corner which would obscure the vision of drivers using said streets, or conflict with the traffic-control signals at the intersection of any street.
(3)(k) Signs and billboards shall be expressly prohibited from all public rights-of-way and dedicated public easements.
(4)(o) Any sign that would project into any public right-of-way or other accessway.
(4)(r) Sidewalk signs.

         Moreover, the letter stated that this section, construed and read together, “prohibits all signs, notwithstanding the content, displayed on any street corner, public right-of-way or sidewalk” (emphasis in letter). On that basis, the city concluded that Mattia's display of his sign on the public sidewalk is prohibited by ordinance section 1510.

         Mattia believed the threat of criminal consequences remained and that the letter unequivocally informed him that the city would apply section 1510 to ban his desired future sign use. Moreover, the additional application of section 1510 banned Mattia's signs with images of aborted fetuses as well as his signs with mere text. Mattia says he now fears criminal sanction if he attempts to display his sign with images or any other sign conveying an abortion message on any public sidewalk. He believes the complete ban on his sign use restricts and deters his constitutionally-protected expression in traditional public fora and constitutes irreparable harm to him. Mattia also maintains that he has seen people regularly displaying signs on public sidewalks in Center Line. He noted that he saw someone on the sidewalk holding a sign advertising for Liberty Tax Services after he was banned from holding his sign.

         Mattia filed the present action on April 13, 2017 under 42 U.S.C. §§ 1983 and 1988, alleging violations of the First and Fourteenth Amendments. He challenges Center Line ordinance section 46-146 as applied to his conduct and Center Line ordinance section 1510 on its face and as applied. On April 24, 2017, Matttia filed a motion for a preliminary injunction. After the City responded, the Court heard oral argument on August 31, 2017.


         As an initial matter, the defendants contend that the plaintiff lacks standing to raise his claims because he has not suffered an injury in fact. They also argue that the plaintiff's challenge to ordinance 46-146 is moot because the defendants agreed to cease enforcement against the plaintiff. In addition, the defendants ...

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