462 F.3d 720 (7th Cir. 2006), 05-3912, Brown v. City of Michigan City, Indiana

Docket Nº:05-3912.
Citation:462 F.3d 720
Party Name:Robert BROWN, Plaintiff-Appellant, v. CITY OF MICHIGAN CITY, INDIANA, Defendant-Appellee.
Case Date:September 05, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 720

462 F.3d 720 (7th Cir. 2006)

Robert BROWN, Plaintiff-Appellant,

v.

CITY OF MICHIGAN CITY, INDIANA, Defendant-Appellee.

No. 05-3912.

United States Court of Appeals, Seventh Circuit.

Sept. 5, 2006

Argued April 6, 2006.

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Kenneth J. Falk (argued), Indiana Civil Liberties Union, Indianapolis, IN, Ivan E. Bodensteiner, Valparaiso, IN, for Plaintiff-Appellant.

Robert T. Keen, Jr. (argued), Diana C. Bauer, Carson Boxberger, Fort Wayne, IN, for Defendant-Appellee.

Before RIPPLE, MANION and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

On August 1, 2002, Robert Brown was banned from all properties or programs operated by the Michigan City Department of Parks and Recreation. On August 13, 2002, he filed this suit against the City of Michigan City, Indiana ("City"); he alleged that the ban violated his rights to procedural and substantive due process guaranteed by the Fourteenth Amendment. On September 19, 2005, the United States District Court for the Northern District of Indiana granted summary judgment in favor of the City. Mr. Brown now appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I

INTRODUCTION

A. Facts

Mr. Brown is a resident of Michigan City, Indiana. Washington Park (the "park") is the largest public park in Michigan City, and is located on the shores of Lake Michigan. Residents, including Mr. Brown, may enter the park free of charge with a resident pass. According to Mr. Brown, sometime in 1988, he began visiting Washington Park on a daily basis with his wife; they would "sit and watch the sunsets and sunrises, drink coffee, smoke cigarettes." Brown Dep., R.49, Tab 3 at 20. After his wife passed away later that year, he continued this routine: Over the course of approximately fourteen years, in the morning, he would drive his R.V. to Washington Park, park near the lake, drink his coffee, smoke cigarettes and watch people at the beach, sometimes with binoculars. 1 He did not leave his van on most occasions.

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On July 2, 2002, Darrell Garbacik, the Recreation Director for the Michigan City Department of Parks and Recreation, received a phone call from LaPorte Recreation Director Karl Swihart. Swihart told Garbacik that Mr. Brown previously had been observed at Stone Lake Beach in LaPorte, Indiana, sitting in his R.V. and watching beach patrons through binoculars. 2 The LaPorte police were notified and, after an investigation, they discovered that, in 1995, Mr. Brown had been convicted of one count of child molestation. 3 Swihart faxed Garbacik the case report from this investigation. Garbacik subsequently notified the Michigan City Police Department ("MCPD") and the park staff of Mr. Brown's criminal history; he directed the park staff to be on notice of Mr. Brown's whereabouts in the park and to report any unusual behavior.

A picture of Mr. Brown's vehicle subsequently was circulated to parking attendants at the Washington Park gatehouse; they logged Mr. Brown entering and exiting the park daily, sometimes twice daily, from July 16 to July 29, 2002. In addition, staff at a day camp within the park observed Mr. Brown driving slowly by the camp, allegedly watching the children. At his deposition, Garbacik explained that the speed limit on the road in front of the day camp is only ten miles an hour, but nevertheless maintained that Mr. Brown's conduct was unusual:

Q: [W]hat is the speed limit within the park?

A: I'd actually be guessing, but I'd have to believe it's ten miles or less ....

...

Q: So what does it mean to say that Mr. Brown was cruising slowly ... ?

A: I think the distinction there and what was expressed to me is that most people keep their eyes on the road and stop at the stop sign. This particular individual was looking to his right observing activities going on there.

Garbacik Dep., R.49, Tab 1 at 22. The City acknowledges that, although Mr. Brown's people-watching at the park was in and of itself a largely innocent activity, when combined with his criminal history, it raised a "red flag[]" for the park staff. Id. at 38.

Mr. Brown was approached by Officer Webb of the MCPD while sitting in his R.V. at the park in late July 2002. Officer Webb inquired about Mr. Brown's activities and whether he was bothering anyone; after a short conversation, he allowed Mr. Brown to remain in the park. Mr. Brown again was approached in the park the next day; after asking Mr. Brown what he was doing, Officer Mark Swistek of the MCPD

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suggested that he leave the park. Mr. Brown complied. A few days later, Mr. Brown was again in Washington Park when he was approached by two officers, who inquired whether Mr. Brown was registered as a sex offender with the MCPD; he responded that he had registered with the Sheriff's Department in LaPorte County, but was not aware that he also needed to register with Michigan City officials. 4 According to Mr. Brown, the fourth and last time he was approached by the police in the park, the officers were accompanied by a city attorney. The attorney took Mr. Brown's park pass; the officers informed him that he was no longer allowed in the park; if he returned, Mr. Brown was warned, he would be arrested for trespassing. Mr. Brown complied with this order.

On July 31, 2002, an officer of the MCPD hand-delivered a letter to Mr. Brown. It read:

The banning of your presence from the Michigan City Park properties will be presented to the Michigan City Parks and Recreation Board, Thursday August 1st at 6:00 in the 1st floor of the Park Office.

Id., Ex.5. Mr. Brown affirms that he "knew why [he] was being banned," Brown Dep., id., Tab 3 at 43, but alleges that he did not understand that he was "invite[d]" to the hearing, id. at 7. Because the police previously had told him that he would be arrested if he entered the park again and because the meeting was at the Park Office, inside Washington Park, he did not believe that he had permission to attend.

A friend of Mr. Brown's, Randolph Sanders, called various city officials to find out more about this meeting; he spoke with the Park Superintendent, to whom he expressed the concern that Mr. Brown would be arrested if he attended the meeting. The Superintendent stated that Mr. Brown was allowed to attend the meeting; however, both the Superintendent and the city attorney refused Sanders' request to put this assurance in writing.

The Michigan City Parks and Recreation Board met in regular session on August 1, 2002, at the Park Office in Washington Park. In attendance were the four Board members, a number of park staff, press and members of the public. Mr. Brown was not present. One of the items discussed at the meeting was Resolution 548, entitled, "A Resolution Prohibiting the Use of Park Department Properties by an Individual Having a Child Molesting History." Id., Tab 1, Ex.7. In pertinent part, the Resolution read:

WHEREAS, the Michigan City Parks and Recreation Board and the Michigan City Parks and Recreation Department are by law responsible for the safety of all persons using the Park Department facilities or participating in Park Department programs, and

....

WHEREAS, it was brought to the attention of this Board by the Department staff and the Michigan City Police Department that during the period of a recent summer day camp program for children conducted at Washington Park, an individual, namely, Robert E. Brown ..., who was recognized by members of the Michigan City Police force as a convicted child molester, was observed by the Police and the Department staff frequenting Washington Park in [a] recreational/camping vehicle, while having a set of binoculars and a camera in his possession, and

WHEREAS, this Board has determined that in order to discharge its

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responsibilities of child protection and safety, it is necessary to designate all properties and programs under the jurisdiction of the Department to be OFF LIMITS to any person who has been convicted of child molesting under Indiana Code, IC 35-42-4-3, or convicted of any other sex crime in which the victim is a child under the age of 18 years, and to ban such person from all Michigan City Parks and Recreation Department properties indefinitely.

NOW THEREFORE, BE IT RESOLVED BY THE MICHIGAN CITY PARKS AND RECREATION BOARD AS FOLLOWS:

(1) That ROBERT E. BROWN ... is hereby BANNED from all properties or programs operated under the jurisdiction of the Michigan City Department of Parks and Recreation and that in the event said individual is found upon any such property, he shall be considered a trespasser, and shall be removed forthwith, or be subject to arrest for failure to depart the premises.

(2) That all properties and programs operated under the jurisdiction of this Department are hereby declared OFF LIMITS to any person who has been convicted of child molesting under Indiana Code, IC 35-42-4-3, or convicted of any other sex crime in which the victim is a child under the age of 18 years, and in the event that such individual is identified and found upon any such property, he shall be considered a trespasser and shall be ordered to remove himself forthwith, or be subject to arrest for failure to depart the premises....

Id. at 1-2. Although the resolution applied to all persons convicted of child molestation, the City admits that Mr. Brown was the only individual mentioned in the resolution or at the Board meeting as "being a sex offender in the parks." Garbacik Dep., id., Ex.1 at 32.

The resolution was presented to the Board by Park Department Attorney Patrick Donoghue. Donoghue informed the persons in attendance that Mr. Brown had been involved in a "series of incidents ... involving the safety and protection of children." Minutes, id., Ex.6 at 2. He explained that Mr. Brown has a criminal record, had been seen using binoculars to watch a family...

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