Potts v. City of Lafayette

• Decision Date: 04 August 1997
• Docket Number: No. 96-3593,96-3593
• Citation: 121 F.3d 1106
• Parties: JJOHN D. POTTS, Plaintiff-Appellant, v. CITY OF LAFAYETTE, Indiana, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

121 F.3d 1106

JOHN D. POTTS, Plaintiff-Appellant v CITY OF LAFAYETTE, Indiana, Defendant-Appellee.

No. 96-3593

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

April 23, 1997, Argued

August 4, 1997, Decided

AFFIRMED.

For JOHN D. POTTS, Plaintiff - Appellant: Hamid R. Kashani, Indianapolis, IN USA. David A. Nowak, Columbus, IN USA.

For CITY OF LAFAYETTE, Indiana, Defendant - Appellee: James S. Stephenson, Tonya Aretz, STEPHENSON, DALY, MOROW & KURNIK, Indianapolis, IN USA.

Before BAUER, RIPPLE, and MANION, Circuit Judges.

BAUER

BAUER, Circuit Judge. John D. Potts attempted to attend and to tape record a Ku Klux Klan rally held in Lafayette, Indiana on October 1, 1994. After Potts was informed that he could not enter with a tape recorder, he nonetheless tried to gain access to the rally, and police officers arrested him. Potts sued the City of Lafayette (“the City”), under 42 U.S.C. § 1983, contending that he was denied entry to the rally in violation of the First Amendment, and that he was arrested without probable cause in violation of the Fourth Amendment. The City moved for summary judgment, which the district court granted. We affirm.

BACKGROUND

The Ku Klux Klan held a rally in Lafayette, Indiana on October 1, 1994. Potts, who was preparing to write a novel set prior to the Peloponnesian War, decided to attend the rally to gather research. 1 As it turned out, Potts was arrested before he could enter the rally area.

Security at the rally involved the Lafayette Police Department (“LPD”), the West Lafayette Police Department (“WLPD”), the Indiana State Police, the Purdue University Police, the Tippecanoe County Prosecutor’s Office, the Tippecanoe Sheriff’s Department, as well as area businesses. Capt. Larry Danaher of the LPD coordinated the duties of the various agencies. He was aware that violence had broken out at previous rallies and that personal items, such as a reporter’s tape recorder, had been used to injure attendees. In an effort to prevent injury to attendees of the Lafayette rally and to protect property and businesses in the downtown Lafayette area, Capt. Danaher drafted an operations order which prohibited persons from bringing into the rally personal items which could be used as “weapons.” The operations order also addressed the allocation of officers throughout Lafayette. The order stated, in relevant part:

WLPD will operate the entrance point and have a commander present at that area to make decisions to assist officers conducting searches of persons with metal batons. WLPD SRT team will operate at this point to monitor persons entering the rally area. Any weapons found or detected will be confiscated and not allowed into the rally area.

A large sign stating that persons entering the rally area will be searched for weapons or dangerous articles will be set in view for persons entering the rally to see. Items to be confiscated and not returned will be lighters, pens, sharp instruments, and knives. This will be stated on signs listed above.

* * *

Media will be allowed to enter without delay after presenting proper identification, and equipment checked for weapons.

WLPD Chief Dennis Mitchell agreed to provide officers to command and man the rally entrance points. Chief Mitchell sent a memorandum to Capt. Danaher, which elaborated on the issue of “weapons.” The memo stated, in relevant part:

2. No personal items that can be used as weapons (i.e. cameras, coins, pens, pencils, any other item deemed dangerous by the security contingent) will be allowed past the entry point of the rally. Items will not be confiscated; however, no one will be allowed into the rally with items as described above. (See below exception pertaining to media representatives)

* * *

5. Media representatives who present valid credentials at the entry point will be allowed to enter with only such items as are essential to their job task (i.e. limited number of pens, pencils and note pads; cameras; recorders; tripods; pagers; telephones and radios).

Prior to the rally, Federated Publications, Inc. (a corporation that publishes a local newspaper) filed an action in state court arguing that the press was unduly restricted in gathering news because it was being confined to a designated area of the rally, behind a plastic fence. On September 30, 1994, the Tippecanoe County Superior Court ordered that, upon being searched, persons with media passes would be permitted to enter the rally with tools of their trade. The LPD issued media passes to everyone who requested them.

During a routine body scan at one of the two entrances to the rally, WLPD Sgt. Matthew Coddington detected a small tape recorder in Potts’ back pocket. Sgt. Coddington informed Potts that he could not enter the rally with the tape recorder unless he had a media pass. Potts then walked across the street to the other entry point, where he encountered WLPD Lt. Jerry Dean Burk, who asked Potts if he wished to enter the rally. Potts responded, “Yes, but the officer told me because I have a tape recorder, I can’t go in.” Lt. Burk explained that only members of the press were authorized to record the event. Potts said, “I’m not in the press, but I still think I have a right to record the event.” Lt. Burk and another officer directed Potts to where he could apply for a media pass. Instead of trying to obtain a pass, Potts said, “So you’re trying to tell me that you’re serious enough that if I walked through the entry with the tape recorder, you would arrest me?” Lt. Burk responded that he would arrest him. Potts stated, “Then you’re going to have to arrest me because I think I have a right to do that.” Potts moved around Lt. Burk towards the rally entrance, at which point Lt. Burk arrested him. Later in the day, Lt. Burk issued a citation to Potts for failure to comply with a police officer.

Potts brought suit under 42 U.S.C. § 1983 against the City and two police officers who were involved in implementing the operations order and involved in Potts’ arrest. Potts contended that he was denied entry into the rally in violation of the First Amendment, and that Lt. Burk arrested him without probable cause in violation of the Fourth Amendment. The case was originally filed on January 12, 1995. Potts subsequently dismissed his claims against the two individual officers, leaving the City as the only remaining defendant. The district court granted the City’s motion for summary judgment on September 23, 1996. Potts appeals, presenting essentially the same issues he raised in the district court. 2

ANALYSIS

A. Standard of Review

HN1We review the district court’s grant of summary judgment de novo. McGinn v. Burlington Northern R. Co., 102 F.3d 295, 298 (7th Cir. 1996) (citation omitted). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Matney v. County of Kenosha, 86 F.3d 692, 695 (7th Cir. 1996) (citations omitted). We view the record and extract all reasonable inferences from it in the light most favorable to the nonmoving party. McGinn, 102 F.3d at 298 (citation omitted). Only disputes that could affect the outcome of the suit under governing law will preclude an entry of judgment for the moving party. Id. (citation omitted).

B. First Amendment Claim

Potts claims that the district court erred in granting summary judgment because there are genuine issues of material fact, which should be put before a jury, regarding whether his actions were protected under the First Amendment. We disagree. First, HN2the application of the First Amendment to the facts of a particular case is not an issue for a jury to resolve, but is a legal question for the court to decide. Moreover, there is nothing in the Constitution which guarantees the right to record a public event. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 610, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978) (explaining that the Sixth Amendment does not require that a trial be broadcast live or on tape to the public); United States v. Kerley, 753 F.2d 617, 620-22 (7th Cir. 1985) (recognizing that the exclusion of cameras from federal courtrooms is constitutional). The right to gather information may be limited under certain circumstances.

The privilege of a citizen of the United States to use the streets and parks for communication of views of national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in the subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Hague v. Committee for Indus. Org., 307 U.S. 496, 515-16, 59 S. Ct. 954, 83 L. Ed. 1423 (1939).

The proper constitutional measure of the operations order’s “weapons” ban is whether the restriction constitutes a valid time, place, or manner regulation. See Matney, 86 F.3d at 695. HN3To sustain a time, place, or manner restriction on First Amendment activities, the government must show that the restriction (1) is justified without reference to the content of the regulated speech; (2) is narrowly tailored to serve a significant governmental interest; and (3) leaves open ample alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989) (citations omitted).

HN4Regarding content-neutrality, “the principal inquiry . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Id. (citation omitted). The controlling consideration is the government’s purpose in enacting the regulation. Id. “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Id.

The operations order states that, with regard to the rally, “the mission of the Lafayette Police...