BIBLE BELIEVERS; RUBEN CHAVEZ, aka Ruben Israel; ARTHUR FISHER; JOSHUA DELOSSANTOS, Plaintiffs-Appellants,
WAYNE COUNTY; BENNY N. NAPOLEON, in his official capacity as Sheriff, Wayne County Sheriff's Office; DENNIS RICHARDSON, individually and in his official capacity as Deputy Chief, Wayne County Sheriff's Office; MIKE JAAFAR, individually and in his official capacity as Deputy Chief, Wayne County Sheriff's Office, Defendants-Appellees
Argued, January 21, 2014
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Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:12-cv-14236--Patrick J. Duggan, District Judge.
Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellants.
Nabih H. Ayad, NABIH H. AYAD & ASSOCIATES, P.C., Canton, Michigan, for Appellees.
Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, David Yerushalmi, AMERICAN FREEDOM LAW CENTER, Washington, D.C., for Appellants.
Nabih H. Ayad, NABIH H. AYAD & ASSOCIATES, P.C., Canton, Michigan, for Appellees.
Before: CLAY and DONALD, Circuit Judges; MAYS, District Judge.[*] DONALD, J., delivered the opinion of the court, in which MAYS, D.J., joined. CLAY, J., delivered a separate dissenting opinion.
BERNICE BOUIE DONALD, Circuit Judge.
This appeal requires us to " grapple with claims of the right to disseminate ideas in public places as against claims of an effective power in government to keep the peace[.]" Niemotko v. Maryland, 340 U.S. 268, 273-74, 71 S.Ct. 325, 95 L.Ed. 267 (1951) (Frankfurter, J., concurring). Plaintiffs-Appellants Bible Believers, Ruben Chavez, Arthur Fisher, and Joshua DeLosSantos appeal the district court's grant of summary judgment in favor of Defendants-Appellees Wayne County, Michigan; Wayne County Sheriff Benny Napoleon; and Wayne County Deputy Chiefs Dennis Richardson and Mike Jaafar. Appellants claim that Appellees violated their First Amendment rights to free speech and free exercise of religion and the Fourteenth Amendment's Equal Protection Clause. All of these claims arise out of events at the 2012 Arab International Festival in Dearborn, Michigan, where Appellants' proselytizing led an angry crowd to heave debris at Appellants; this reaction caused Appellees Jaafar and Richardson to warn Appellants that they would issue disorderly conduct citations to Appellants if they did not leave. The district court held that Appellees did not violate Appellants' First Amendment free-speech and free-exercise rights and did not violate the Fourteenth Amendment's Equal Protection Clause. Because it did not find any constitutional violations, the district court did not address qualified immunity. It did offer an alternate holding that, even if Appellants' rights had been violated, Wayne County would not be subject to municipal liability. For the reasons explained below, we AFFIRM.
The City of Dearborn in Wayne County, Michigan, has hosted the Arab International Festival (" Festival" ) every summer from 1995 until 2012. A three-day event that was free and open to the public, the Festival welcomed roughly 250,000 attendees and featured carnival attractions, live entertainment, international food, and merchandise sales. See Saieg v. City of Dearborn, 641 F.3d 727, 730 (6th Cir. 2011). The 2012 Festival had eighty-five vendors, information tables, and sponsor booths--several of which were affiliated with various Christian and other religious groups. Over the years, Christian evangelists have targeted the Festival. See Saieg, 641 F.3d at 731-32.
Bible Believers, which is comprised of Christian evangelists, is, in their own words, " an unincorporated association of individuals who desire to share and express their Christian faith with others, including Muslims, through various activities, including street preaching and displaying signs, banners, and t-shirts with Christian messages and Scripture quotes." Ruben Chavez is a founder and leader of Bible Believers; Joshua DeLosSantos and Arthur Fisher are members. To Appellants, Dearborn " is an important place for [their] evangelical activities" because of its large Islamic population.
Appellants attended two days of the 2011 Festival, bearing " Christian signs, banners, and t-shirts." On the first day, officers from the Wayne County Sheriff's Office (" WCSO" ) steered them into a cordoned off " free speech zone." There was no free speech zone when they returned on the second day, so Appellants moved through the crowd. This allegedly peaceful proselytizing sparked confrontation
with bystanders, which ended with the arrest of one Bible Believer, who was later released without charge. This arrest provided part of the impetus for Appellants' return to the Festival in 2012.
During the build-up to the 2012 Festival, Chavez's attorney wrote a letter to Wayne County Sheriff Benny Napoleon and Robert Fianco, the Wayne County Executive, to notify them that Chavez intended to exercise his constitutional rights at the 2012 Festival. This letter also alleged that the WCSO sided with " the violent Muslims" during the 2011 Festival and then cited Glasson v. City of Louisville, 518 F.2d 899, 906 (6th Cir. 1975), to assert that " officers have a duty to protect speakers like [Chavez] from the reactions of hostile audiences. If the officers allow a hostile audience to silence a speaker, the officers themselves effectively silence the speaker and effectuate a 'heckler's veto.'" The letter concludes: " We fully expect and demand Wayne County Sheriff's Department to protect [Chavez] and his friends from physical assaults and allow [Chavez] and his friends to engage in their peaceful expression."
Zenna Elhasan, Wayne County's Corporation Counsel, responded on June 14, 2012. After disputing Chavez's characterization of the 2011 events, Elhasan repudiated any inference of a " special relationship" with Chavez: " The WCSO owes a duty to the public as a whole and is not required to serve as a security force for the sole benefit of [Chavez] and the 'Bible Believers.'" Elhasan further advised that the WCSO cannot prevent all unlawful conduct and that " under state and local ordinances, individuals can be held criminally accountable for conduct which has the tendency to incite riotous behavior or otherwise disturb the peace." Elhasan concluded:
Wayne County has great reverence for the First Amendment, but it cannot protect everyone from the foreseeable consequences that come from speech that is designed and perhaps intended to elicit a potentially negative reaction. The WCSO will not restrict the First Amendment Rights of any individual, but, by following the laws requiring the observance of such rights, the WCSO neither cedes its right to maintain the peace nor assumes unto itself liability for the illegal conduct of others.
The 2012 Festival ran from June 15 through June 17 along several blocks of Warren Avenue in Dearborn; the WCSO was the Festival's exclusive law enforcement agency. According to the WCSO, it allocated more personnel to the Festival than to " the World Series or the President of the United States when he visits Michigan." Deputy Chief Mike Jaafar wrote the WCSO's Operation Plan (" Plan" ) for the Festival. The Plan explained the WCSO's overall mission to provide " Wayne County citizens, festival patrons, organizers, [and] merchants with law enforcement presence and to ensure the safety of the public, and keep the peace in the event there is a disturbance." The Plan noted that past festivals had attracted Christian evangelical groups, including " a radical group calling themselves 'The Bible Believers' . . . . These groups will possibly show up at the festival trying to provoke our staff in a negative manner and attempt to capture the negativity on video camera." The plan emphasized that " [i]t's important to keep in mind that some individuals will attend this event solely to provoke trouble, however; professionalism, and even temperaments will prevail ."
Appellants arrived at the Festival around 5:00 p.m. on June 15, 2012; they entered at the western end, " near the area used for the children's tent and the carnival
rides."  As in 2011, the Bible Believers came bearing strongly worded t-shirts and banners:
[Chavez] wore a t-shirt with the message, " Fear God" on the front and " Trust Jesus, Repent and Believe in Jesus" on the back. Fisher wore a t-shirt with the message, " Trust Jesus" on the front and " Fear God and Give Him Glory" on the back, and he carried a banner that said on one side, " Only Jesus Christ Can Save You From Sin and Hell," and on the other side it said, " Jesus Is the Judge, Therefore, Repent, Be Converted That Your Sins May Be Blotted Out." Other messages conveyed on t-shirts, signs, or banners displayed by the [other Bible Believers] included, among others, " Fear God," " Trust Jesus, Repent and Believe in Jesus," " Prepare to Meet Thy God - Amos 4:12," " Obey God, Repent," " Turn or Burn," " Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers," and " Islam Is A Religion of Blood and Murder."
One Bible Believer carried a severed pig's head on a stick, which Chavez explained protected the Bible Believers by repelling observers who feared it. Appellants soon began preaching using a megaphone, and a small crowd formed around them almost immediately. Chavez castigated the crowd for following a " pedophile" prophet and warned of God's impending judgment. As this evangelizing continued, the crowd yelled back. At this point, a ribbon-cutting at the opposite end of the Festival occupied a majority of the WSCO officers, but one officer watched from the outskirts of the crowd.
After roughly ten minutes, unidentified people started separating other Festival-goers from the Bible Believers, and the crowd temporarily thinned. About fifteen minutes after the Bible Believers entered the Festival, an officer approached them, told Chavez that Dearborn had an ordinance prohibiting the use of a megaphone, and warned the Bible Believers not to use it anymore. Chavez explained that they had used a megaphone without issue in 2011 and asked, " If we don't use the megaphones, can they throw water bottles? What are you going to do if they throw water bottles at us?" The officer responded, " If that happens, we'll take care of it." Chavez continued grumbling about the megaphone, and the officer said he would call a supervisor. After the officer departed, however, Appellants did not use the megaphone again.
As the Bible Believers moved deeper into the Festival, the crowd--a good portion of which appeared to be minors--continued to gather and yell. Some people started throwing debris--including rocks, plastic bottles, garbage, and a milk crate--at the Bible Believers. Someone in the crowd also shoved one Bible Believer to the ground. Some WCSO officers detained debris-throwers while other officers hovered at the edges of the crowd. Eventually, after about thirty-five minutes, the Bible Believers temporarily stopped preaching and stood as the crowd harangued them and hurled objects. Several officers, including some mounted units, attempted to quell the crowd.
After about five minutes of standing quietly, the Bible Believers began to move and preach again. As they did so, the cascade of objects intensified. Deputy Chiefs Richardson and Jaafar approached them a few minutes later. Jaafar explained that they could leave and that their
safety was in jeopardy because not enough officers were available to control the crowd. The Bible Believers, however, continued to preach, followed by what had swelled into a large crowd.
Richardson and Jaafar then took Chavez aside to speak with him. Richardson noted his concern that Chavez was bleeding from where a piece of debris had cut his face. Richardson explained that he was responsible for policing the entire Festival, that Chavez's conduct was inciting the crowd, and that he would escort the Bible Believers out of the Festival. Jaafar then told Chavez that the WCSO had been respectful but that the Bible Believers were affecting public safety. Richardson said, " Apparently, what you are saying to [the crowd], and they are saying back to you is creating danger." Richardson reiterated that he did not have enough officers to assign a detail to protect the Bible Believers. Members of Bible Believers requested that they be moved into a protected area, but Richardson explained that the local chamber of commerce had opted not to have a free speech zone at the 2012 Festival.
As Richardson insisted that the Bible Believers leave lest someone--a Bible Believer, a Festival goer, or an officer--be injured, Chavez asked if they would be arrested if they refused; Richardson replied, " Probably we will cite you." This conversation replayed several times, with Chavez pressing for an answer and Richardson replying that the Bible Believers were a danger to public safety. Chavez eventually snapped, " I would assume a few hundred angry Muslim children throwing bottles would be more of a threat than a few guys with signs." Richardson stepped away briefly to confer with the Director of Legal Affairs for the WCSO and then told Chavez, " You need to leave. If you don't leave, we're going to cite you for disorderly. You're creating a disturbance. I mean, look at your people here. This is crazy!" Officers then escorted the Bible Believers out. Overall, the Bible Believers preached at the Festival less than one hour. The WCSO's Post-Operation Report indicated that officers arrested and cited several people for disorderly conduct and gave others verbal warnings.
No Bible Believers were cited or arrested at the 2012 Festival itself. Moments after Bible Believers' van pulled away, however, a WCSO squad car stopped it. Several cars and multiple officers observed as the van's driver received a citation for driving without license plates. One Bible Believer said they had removed the license plate because they anticipated being followed from the Festival to their church.
Appellants filed suit in the United States District Court for the Eastern District of Michigan, bringing three claims under 42 U.S.C. § 1983: (1) violations of their First Amendment right to free speech; (2) violations of their First Amendment right to free exercise of religion; and (3) violations of the Equal Protection Clause of the Fourteenth Amendment. Appellants sought declaratory relief, injunctive relief, " nominal damages," and attorneys' fees. Appellees answered and filed a motion for summary judgment or, in the alternative, to dismiss, arguing that the individual Appellees were entitled to qualified immunity, that Wayne County was not subject to municipal liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and that the restrictions on Appellants' speech were content neutral and thus permissible. Appellants opposed this motion, filed a cross-motion for summary judgment, and filed a motion for a preliminary injunction. After a hearing on these
motions, the district court granted Appellees' motion, which it construed as one for summary judgment, denied Appellants' cross-motion for summary judgment, and denied Appellants' motion for a preliminary injunction as moot. This appeal ensued.
We review de novo a district court's grant of summary judgment using the Matsushita-Anderson-Celotex standard. Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). We view facts in the record and reasonable inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We do not weigh evidence, assess ...