Chris Hartman; Sonja DeVries; Carla Wallace, Plaintiffs-Appellants,
Jeremy Thompson; Jason Drane; Brian Hill, Defendants-Appellees.
Argued: October 4, 2018
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.
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
SUHRHEINRICH, CIRCUIT JUDGE
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.
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
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."
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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
Protest Zone Outside the Ham Breakfast
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.
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.
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.
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.
Type of Forum
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.
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).
Level of Scrutiny
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).
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.
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").
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
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.See Williamson v. Aetna Life ...