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Hartman v. Thompson

United States Court of Appeals, Sixth Circuit

July 23, 2019

Chris Hartman; Sonja DeVries; Carla Wallace, Plaintiffs-Appellants,
Jeremy Thompson; Jason Drane; Brian Hill, Defendants-Appellees.

          Argued: October 4, 2018

          Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:16-cv-00114-Gregory N. Stivers, Chief District Judge.


          Michael L. Goodwin, Louisville, Kentucky, for Appellants.

          Charles C. Haselwood, II, KENTUCKY STATE POLICE, Frankfort, Kentucky, for Appellees.

         ON BRIEF:

          Michael L. Goodwin, Louisville, Kentucky, for Appellants.

          Charles C. Haselwood, II, KENTUCKY STATE POLICE, Frankfort, Kentucky, for Appellees.

          Before: SUHRHEINRICH, MOORE, and BUSH, Circuit Judges.

          SUHRHEINRICH, J., delivered the opinion of the court in which BUSH, J., joined in part and in the judgment. BUSH, J. (pp. 18-19), delivered a separate opinion concurring in part and in the judgment. MOORE, J. (pp. 20-36), delivered a separate dissenting opinion.



         Chris Hartman, Sonja DeVries, and Carla Wallace (collectively, "Plaintiffs") are members of an organization called The Fairness Campaign. In 2015, they protested the annual Ham Breakfast at the Kentucky State Fair because it was sponsored by the Kentucky Farm Bureau Federation ("KFB"). Plaintiffs were allowed to protest in a designated zone. Eventually, Plaintiffs were arrested for causing a disruption, and they sued Kentucky State Troopers Jeremy Thompson, Jason Drane, and Brian Hill (collectively, "Defendants") for a variety of constitutional and state law claims. The district court granted summary judgment to Defendants. We AFFIRM.

         I. BACKGROUND

         On August 27, 2015, the KFB sponsored the 52nd annual Ham Breakfast at the Kentucky State Fair. To gain admission to the Ham Breakfast, attendees had to buy two tickets-one to get into the Fairgrounds and a separate ticket for the Breakfast.

         On August 26, 2015, the day before the Ham Breakfast, The Fairness Campaign, the American Civil Liberties Union of Kentucky, and the Jefferson County Teachers Association (referred to here as "The Fairness Campaign") e-mailed a joint press release. The press release stated that The Fairness Campaign "will protest the [KFB]'s discriminatory policies at the annual State Fair Country Ham Breakfast Thursday, August 27, 7:00 a.m. in South Wing B of the Kentucky Exposition Center." The Fairness Campaign described KFB's discriminatory policies as "anti-LGBT, anti-teacher, anti-union, anti-choice, and pro-death penalty, among others."

         Later that evening, Thompson-who oversaw general law enforcement at the Fairgrounds-received a phone call from Fairgrounds CEO Rip Rippetoe asking him to come in for a meeting regarding The Fairness Campaign's press release. Thompson, Rippetoe, Dr. Mark Lynn from the Fairgrounds' Board of Directors, Chris Brawner from Fairgrounds' security, and Ellen Benzing from the Fairgrounds' legal staff met "to determine how that protest was going to be handled." Kentucky Administrative Regulations ("KAR") regarding demonstrations at the Fairgrounds require 72 hours' notice to the Executive Director of the Fairgrounds. See 303 KAR 1:080(2). After the notice is received, the protestors "have to receive a permit from the [F]airgrounds with the specifics of . . . where, [and] the number of people they're going to have so that the[ protestors] can be accommodated." According to Thompson, "[t]hat was [the Fairgrounds'] decision whether they would or would not allow" The Fairness Campaign to protest. Even though The Fairness Campaign did not abide by 303 KAR 1:080(2) and instead only sent out a press release, the Fairgrounds group made a "collective decision" that they would "allow the protest even though sufficient notice had not been given according to KAR regarding protests on [F]airgrounds property." The group decided "to allow the protest to make it relevant to the venue but to keep it in an area that did not disrupt any services that were going on." After the meeting, Thompson led the group out to the parking lot, approximately 50 feet from the sidewalk outside South Wing B, where he suggested an area for the protest. The suggestion was based on handicap-accessible parking because Thompson remembered from previous dealings with The Fairness Campaign, when they had protested the event in prior years, that "there were a few members that were with the group that were handicapped, or if not handicapped they used assistance with canes, wheelchairs and so on." The group agreed with Thompson's recommendations and flagged off the area (the "protest zone") for The Fairness Campaign to use the following morning.

         The next morning, twenty-four members of The Fairness Campaign, including the three Plaintiffs, arrived wearing bright orange T-shirts which "enumerated the [KFB]'s discriminatory policies." Thompson met Hartman in the parking lot and told Hartman that The Fairness Campaign would be permitted to protest in the protest zone. Thompson told Hartman that inside the protest zone The Fairness Campaign could use signs, megaphones, "the whole nine yards." The Fairness Campaign then went to the protest zone.

         Thompson also warned The Fairness Campaign that they could not disrupt the Ham Breakfast when they went inside. Hartman retorted, "I'm going to do what I have to do," which included the decision to "ramp up activities until the [KFB]'s policies were amended." Thompson recalled that in 2014, twenty-four members of The Fairness Campaign attended the Ham Breakfast wearing bright yellow T-shirts. As other guests went through the buffet line, The Fairness Campaign stood nearby in a single-file line, alternately facing forward and backward, for 15 to 20 minutes. The Fairness Campaign then got their breakfast and waited until the conclusion of the invocation. When KFB President Mark Haney began introducing dignitaries from the dais, The Fairness Campaign moved in front of the dais and again stood, alternately facing forward and backward, in a single file line for 60 seconds. The Fairness Campaign was not arrested for this behavior.

         According to Hartman, Thompson's warning in 2015 not to protest inside the Ham Breakfast caused The Fairness Campaign to rethink its plan. Instead of standing in front of the speaker's dais, The Fairness Campaign decided they would stand silently at their assigned table for 60 seconds. Hartman did not tell Thompson or anyone else from the Kentucky State Police about this change in plan.

         Upon leaving the protest zone, Plaintiffs presented their tickets and entered the Ham Breakfast without restriction. The Fairness Campaign was seated together at three tables located in the corner farthest from the front of the speakers' dais. After the opening invocation and as the first speaker began to address the attendees, The Fairness Campaign simultaneously rose from their seats and stood at their three tables silently. This action led to their arrest, although the parties dispute what happened next.

         Plaintiffs maintain that immediately after they stood up, police officers approached them, placed Hartman under arrest, and escorted him from the building. Plaintiffs contend none of the officers asked Hartman or other Fairness Campaign members to sit down or leave before arresting him. Thompson, however, testified he approached Hartman and asked him to sit down, but Hartman refused to answer and did not sit down. Drane testified after Hartman was placed into handcuffs, he picked his feet up and had to be "pack[ed] out" of the venue by the troopers. For his part, Hartman stated that after being handcuffed, he "decided, in protest, to dead drop" in response to Defendants' having "jerked [him] forward" when he hesitated to accompany them. Drane subsequently arrested Hartman for failure to disperse and disorderly conduct in the second degree.

         After Hartman was arrested and escorted from the Ham Breakfast, Thompson returned to the venue to find other individuals still standing at the table. Thompson testified he told them they had to leave and that all but two women left the Breakfast. Thompson said that although he asked one of the women to leave, she repeatedly stated she was not leaving.

         DeVries testified that following Hartman's arrest, Hill approached her and told her she had to leave. DeVries explained to Hill that she was getting ready to leave and was waiting for her friends. DeVries stated that Hill then placed her under arrest and escorted her from the event. Hill, however, claimed that DeVries had already been handcuffed when Thompson asked Hill to escort her out of the Breakfast and that Thompson instructed Hill to charge DeVries with failure to disperse.

         Wallace asserted that after Hartman was removed from the Breakfast, troopers approached her and told her she had to leave. Before she was given a chance to respond, Wallace contended that she was removed from the venue and placed under arrest. Thompson arrested Wallace for failure to disperse.

         The day before their trials in state court were set to begin, the Jefferson County Attorney moved to dismiss all charges against Plaintiffs. Three judges granted the motions and dismissed the charges.

         After the charges were dismissed, Plaintiffs filed a complaint in Jefferson County Circuit Court, asserting four constitutional violations under 42 U.S.C. § 1983: false arrest and malicious prosecution in violation of the Fourth Amendment, and free speech and retaliatory arrest claims in violation of the First Amendment. Plaintiffs also claimed wrongful arrest, malicious prosecution, and battery under Kentucky law. Defendants removed the case to federal court and moved for summary judgment. The district court granted summary judgment to Defendants on all claims, both on the merits and on qualified immunity grounds.


         We review the district court's grant of summary judgment de novo and view all facts in the light most favorable to Plaintiffs, the non-moving parties. Brumley v. United Parcel Serv., Inc., 909 F.3d 834, 839 (6th Cir. 2018). A district court must grant summary judgment when "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). There is not a dispute of material fact when the plaintiff presents only a mere "scintilla" of evidence; there must instead be "evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         III. ANALYSIS

         A. Protest Zone Outside the Ham Breakfast

         Plaintiffs allege Defendants violated their First Amendment free speech rights when they were directed to the protest zone outside of the Ham Breakfast. Although Plaintiffs did not seek a permit as required, they do not make a facial challenge to 303 KAR 1:080. Instead, they challenge the application of the regulation to them.

         Plaintiffs' free speech claim fails because they sued the wrong parties. Nothing in the record establishes that Drane or Hill was involved with the creation or enforcement of the protest zone. Therefore, the district court properly granted summary judgment to them on Plaintiffs' free speech claim.

         As for Thompson, § 1983 requires that the defendant "subjects, or causes to be subjected" a United States citizen to the deprivation of a constitutional right. 42 U.S.C. § 1983. Thompson did not "cause" the protest zone to occur. He recommended its placement in response to a request from the Fairgrounds' Board. At bottom, Thompson did not have the legal authority to make the decision to put Plaintiffs in the protest zone. That authority rested with the Executive Director of the Kentucky State Fair. See 303 KAR 1:080(1)(p). As Thompson testified in his deposition, "[t]hat was [the Fairgrounds'] decision whether they would or would not allow [the protest]. That was . . . governing how the fairgrounds operates once they receive these types of notifications from anyone." Therefore, Thompson did not "subject" or "cause to be subjected" Plaintiffs to the protest zone and cannot be liable on the free speech claim.

         Yet, even if we assume the decision had been Thompson's, there was no constitutional violation. A First Amendment claim depends on three inquiries: (1) whether speech is protected; (2) "the nature of the forum" in which the speech occurs; and (3) whether the government's restriction on speech satisfies the relevant forum's associated constitutional standard. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985); S.H.A.R.K. v. Metro Parks Serving Summit Cty., 499 F.3d 553, 559 (6th Cir. 2007). Thompson concedes that the conduct at issue is protected speech, so we focus only on the latter two concerns.

         1. Type of Forum

         There are four types of speech fora: nonpublic, public, designated public, and limited public. Pleasant Grove City v. Summum, 555 U.S. 460, 469-70 (2009); Miller v. City of Cincinnati, 622 F.3d 524, 534-35 (6th Cir. 2010). Plaintiffs assert their speech took place on the sidewalks outside of the Fairgrounds entirely. According to Plaintiffs, that means their speech took place in a traditional public forum and any restrictions are subject to strict scrutiny. However, Plaintiffs do not identify any evidence in the record to support this position.

         Defendants counter that the protest zone was inside the Fairgrounds in a parking lot, so it was in a limited public forum. Defendants are right. The public cannot access the Fairgrounds unless they pay admission. See 303 KAR 1:050. The protest zone was inside the Fairgrounds, approximately 50 feet from the sidewalk outside South Wing B. Therefore, the district court correctly identified the protest zone as inside of a limited public forum. See Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981) ("The Minnesota State Fair is a limited public forum in that it exists to provide a means for a great number of exhibitors temporarily to present their products or views, be they commercial, religious, or political, to a large number of people in an efficient fashion."); cf. Parks v. City of Columbus, 395 F.3d 643, 652 (6th Cir. 2005) (holding that arts festival open to the public at no charge on streets of downtown Columbus was traditional public forum).

         2. Level of Scrutiny

         In a limited public forum, the government "is not required to and does not allow persons to engage in every type of speech." Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001). The government may restrict speech so long as the restrictions are viewpoint neutral and "reasonable in light of the purpose served by the forum." Miller, 622 F.3d at 535 (quoting Good News Club, 533 U.S. at 106-07) (internal quotation marks omitted). Viewpoint discrimination is a more "egregious" form of content discrimination. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). It occurs when speech is restricted because of the speaker's viewpoint on the topic-i.e., but for the perspective of the speaker, the speech would normally be permissible. See, e.g., Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (holding school violated free speech clause by denying church access to school premises to show film solely because film had a religious viewpoint).

         a. Viewpoint neutrality

         Plaintiffs contend that they were moved to the protest zone because they were protesting the alleged discriminatory policies of the KFB. In their view, Thompson targeted them because of their viewpoint, while Defendants allowed others engaged in political speech to roam freely with signs bearing political messages. These arguments fail for three reasons.

         First, the Fairgrounds had a legitimate, viewpoint-neutral reason for designating a protest zone for a large group of people. The Fairgrounds regulations allow demonstrations unless a demonstration unreasonably and substantially interferes with (1) patron safety; (2) "[t]he orderly movement of vehicle and pedestrian traffic"; or (3) the "normal functions" of the Fairgrounds. 303 KAR 1:080(2)(b)(1)-(3). Thompson suggested that the protest zone be located away from the sidewalk in front of South Wing B because 2, 000 people needed to enter for the Ham Breakfast. As Thompson explained, the goal is to prevent large groups from "interfer[ing] with folks walking in" because "we can't afford to [allow pedestrians to] back up into traffic" and affect ingress and egress. Nothing in that explanation is troubling. See, e.g., Heffron, 452 U.S. at 654 (recognizing that "managing the flow of the crowd" is an "important concern" and holding "that the State's interest in confining distribution, selling, and fund solicitation activities to fixed locations [within the Minnesota State Fair] is sufficient to satisfy the requirement that a place or manner restriction must serve a substantial state interest").

         Second, nothing in the record supports Plaintiffs' contention that they were moved because of their viewpoint. Thompson testified that the protest area "was not reserved for [T]he Fairness Campaign, [it] was reserved for anyone who designated themselves a protestor." Thompson continued:

If you sent an email, a protest notification, regardless of whom it was for or against, from a Kentucky State Police perspective you would have been treated as a protestor and been placed in a protest area. . . . The cause and name is absolutely irrelevant. . . . If you send an email that you're a protestor, you will be treated as such.

(Emphasis added). In short, every self-identified protestor would have been placed in a protest zone. This meets the Supreme Court's instruction that a government's action is viewpoint neutral when it treats everyone the same. E.g., Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 694 (2010) ("It is, after all, hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers.").

         Third, Plaintiffs have not identified other protestors that remained on the sidewalk; rather, they vaguely assert that others were protesting in the area without providing any detail as to the actions of these individuals that were allegedly protesting. The only evidence in the record regarding other people on the sidewalk comes from Thompson, who testified multiple times that he did not remember any specific signs on the sidewalk. Even taking these facts in the light most favorable to Plaintiffs, we cannot say that other protestors of a different viewpoint were allowed on the sidewalk while Plaintiffs were not.[1]See Williamson v. Aetna Life ...

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