608 F.3d 1068 (8th Cir. 2010), 09-1185, McCabe v. Parker

Docket Nº:09-1185, 09-1847.
Citation:608 F.3d 1068
Opinion Judge:BYE, Circuit Judge.
Party Name:Alice McCABE; Christine Nelson, Plaintiffs-Appellants, v. Michael PARKER, Defendant-Appellee, Iowa State Patrol, Defendant, W. Ralph Basham; Tom Ridge; Bruce Macaulay; Holly Michael; United States of America; Michelle Mais, Deputy Sheriff; Linn County, Defendants-Appellees. Alice McCabe; Christine Nelson, Plaintiffs-Appellants, v. Michael Parker; I
Attorney:David A. O'Brien, Cedar Rapids, IA, for Appellant. Susan D. Nehring, Cedar Rapids, IA, Edward Himmelfarb, argued, Washington, DC (Barbara L. Herwig, on the brief), for Appellee.
Judge Panel:Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
Case Date:June 30, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1068

608 F.3d 1068 (8th Cir. 2010)

Alice McCABE; Christine Nelson, Plaintiffs-Appellants,

v.

Michael PARKER, Defendant-Appellee,

Iowa State Patrol, Defendant,

W. Ralph Basham; Tom Ridge; Bruce Macaulay; Holly Michael; United States of America; Michelle Mais, Deputy Sheriff; Linn County, Defendants-Appellees.

Alice McCabe; Christine Nelson, Plaintiffs-Appellants,

v.

Michael Parker; Iowa State Patrol; W. Ralph Basham; Tom Ridge; Bruce Macaulay; Holly Michael; United States of America, Defendants,

Michelle Mais, Deputy Sheriff, Defendant-Appellee,

Linn County, Defendant.

Nos. 09-1185, 09-1847.

United States Court of Appeals, Eighth Circuit.

June 30, 2010

Submitted: Oct. 20, 2009.

Page 1069

[Copyrighted Material Omitted]

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David A. O'Brien, Cedar Rapids, IA, for Appellant.

Susan D. Nehring, Cedar Rapids, IA, Edward Himmelfarb, argued, Washington, DC (Barbara L. Herwig, on the brief), for Appellee.

Before WOLLMAN, MURPHY, and BYE, Circuit Judges.

BYE, Circuit Judge.

Alice McCabe and Christine Nelson attended a 2004 Republican campaign rally in Cedar Rapids, Iowa, to protest President Bush's position on the Iraq war. After being arrested for trespass and subjected to a strip and visual body cavity search at the Linn County jail, McCabe and Nelson brought suit against several federal, state, and county officials alleging violations of the First and Fourth Amendments. Most of the claims were dismissed before trial. The case went to trial against one secret service agent on claims arising from the alleged unlawful arrests and against the county jailer who conducted the strip and visual body cavity searches.

The jury found against McCabe and Nelson on the arrest claims. The jury found in favor of McCabe and Nelson on the search claims and awarded $750,000 in damages. The district court granted the jailer's request for a new trial on the grounds the $750,000 award was excessive and gave McCabe and Nelson the option of accepting a remittitur in the amount of $75,000, which they rejected. A second jury awarded $55,804. McCabe and Nelson filed timely appeals raising issues arising from the pre-trial dismissal of some claims, the first trial, the second trial, and their post-trial requests for attorney fees. We affirm in part, reverse in part, and remand.

I

On September 3, 2004, the Republican National Committee (RNC) held a campaign rally at the Noelridge Park in Cedar Rapids, Iowa, supporting the candidacies of President George W. Bush and other Republican candidates for federal and state offices in the November 2004 elections. Two days prior to the rally, Joel Miller, the chairman of the Linn County Democratic Party, arranged to hold a protest at the pool house within the park, obtaining permission from the Cedar Rapids Police Department to do so. Miller sent an email to various registered Democrats in eastern Iowa, inviting " PEACEFUL PROTESTORS" to come to the pool house and protest President Bush's visit. America Coming Together, a political action group, sent a similar email to others including Christine Nelson, a schoolteacher

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(now retired), inviting her to come to the pool house during the rally to protest the Iraq war. Nelson decided to attend the rally and invited one of her friends, Alice McCabe, a retired schoolteacher, to join her. McCabe accepted the invitation and invited another friend, Barb Hannon, to join them. The three women agreed to meet with fellow demonstrators near the pool house on the day of the rally.

In preparation for the rally, federal secret service agents implemented security measures to ensure the safety of President Bush and other rally attendees. In cooperation with state and local law enforcement officials, the secret service constructed physical barriers between the park and adjoining rights-of-way, imposed restrictions upon entry to the park, and imposed restrictions on vehicular and pedestrian use of adjoining rights-of-way. A parking lot in the southwest corner of the park 1 was set up as the secure entrance, with snow fences constructed around the rest of the park. Rally attendees could either enter the parking lot on foot or take a shuttle bus into the parking lot, and then pass through metal detectors before entering the park itself. With the exception of law enforcement vehicles, shuttle buses were the only vehicles allowed on 42nd Street NE, the street bordering the south side of the park.

The restrictions the secret service placed on pedestrian traffic on the roads and sidewalks adjacent to the park generally prohibited people from standing or congregating on the roads or sidewalks so as not to disrupt the flow of shuttle buses or pedestrians into the rally, impede emergency evacuation, or make it more difficult for law enforcement to monitor the crowd for potential threats. Members of the general public were not allowed to stop and stand in or around the shuttle bus entrance on the park-side sidewalk of 42nd Street NE. In addition, only moving pedestrians were allowed on the sidewalk across the street from the park on 42nd Street NE.

The pool house is on the south edge of the park, flanked by the parking lot to the west and tennis courts to the east. Significantly, the secret service designated the pool house as a command center that would be off limits to all but authorized personnel, requiring a change in the protestors' plans. The afternoon before the rally, Steven O'Konek, the Cedar Rapids police officer who had given permission for the protest at the pool house, emailed Joel Miller to notify him the entire park had been designated a secure area, including the pool house. Officer O'Konek assured Miller, however, " [t]here will be a location for your demonstration," and that law enforcement officers would direct demonstrators to a location suitable for the planned protest. The southwest corner of Council Street NE and 42nd Street NE was made available as a place for protestors to gather.

Nelson, McCabe, and Hannon did not learn about the change in plans regarding the pool house. The three women were also unaware of the restrictions on pedestrian traffic on the sidewalks and streets adjacent to the park, because the restrictions were not posted for public view. On the day of the rally, the three women approached the southwest corner of the park on foot, walking on the sidewalk across the street from the park on 42nd Street NE. McCabe carried an 8 1/2" x 11" piece of paper affixed to a small yard sign. The sign said " Bad War No More" and a had a " W" with a slash through it.

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Nelson and Hannon did not have protest signs, but Nelson displayed a small " Kerry-Edwards" button and Hannon wore a small " Kerry" button.

Still planning to meet other protestors at the pool house, the three women crossed 42nd Street NE directly south of the tennis courts. They then turned and doubled back, walking westward on the park-side sidewalk, all the while looking for the pool house demonstration and their fellow protesters. Hannon got separated from McCabe and Nelson when she met an acquaintance; the other two women continued walking, finally stopping next to the shuttle bus entrance believing they could meet fellow protestors there.

Secret Service Agent Michael Parker was posted near the shuttle bus entrance in plainclothes. He saw McCabe standing next to the bus entrance and told her to move off the sidewalk. Nelson heard Parker as well, and both women moved off the sidewalk and onto the strip of grass between the sidewalk and the street, still standing close to the shuttle bus entrance. After the two women had been standing in this location for several minutes, Parker told McCabe to move down the street or across the street. A few other people were near the bus entrance, including a man with a bucket collecting donations on behalf of Republicans. McCabe, feeling she was being singled out, asked Parker whether he was going to tell everyone else to move as well. Parker then radioed for assistance. Secret Service Agent Bruce Macaulay, also in plainclothes, approached McCabe and Nelson and ordered them to move. The two women questioned why they were not permitted to stay where they were. After confronting McCabe three times, Macaulay made the decision to arrest the women for trespass if they did not move within thirty seconds. After thirty seconds passed, Iowa State Troopers Rich Busch and Troy Bailey, who along with Sergeant Jim Loveland had also responded to Parker's request for assistance and had also directed McCabe and Nelson to move several times, finally arrested the two women.

After being arrested and charged with simple misdemeanor trespass under Iowa law, the two women were taken to the Linn County jail. At the jail, despite the fact neither woman was suspected of hiding weapons or contraband and had only been charged with a simple misdemeanor, Linn County Deputy Sheriff Michelle Mais conducted a " full strip search" of the two women in violation of jail policy.2 The " full strip search" required the two women to strip naked and included a visual body cavity search. In a visual body cavity search, detainees must bend over and spread their buttocks and allow an officer to inspect their rectal area. The visual body cavity search also included an inspection of the women's vaginas. While Nelson was searched, the top half of a Dutch door to the room in which the search took place was open, and male jailers passed by the open door during the search.

Because the rally organizers had never obtained formal approval from the City of Cedar Rapids to hold the rally in the park, or to close the adjacent public streets and sidewalks for the exclusive use of the rally,3 there was no lawful basis for the trespass charges against...

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