Saieg v. City of Dearborn

• Citation: 641 F.3d 727
• Decision Date: 26 May 2011
• Docket Number: No. 10–1746.,10–1746.
• Parties: George SAIEG, Plaintiff–Appellant,v.CITY OF DEARBORN; Ronald Haddad, Dearborn Chief of Police, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

641 F.3d 727

George SAIEG, Plaintiff–Appellant,

v.CITY OF DEARBORN; Ronald Haddad, Dearborn Chief of Police, Defendants–Appellees.

No. 10–1746.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2011.Decided and Filed: May 26, 2011.

ARGUED: Robert Joseph Muise, Thomas More Law Center, Ann Arbor, Michigan, for Appellant. Laurie M. Ellerbrake, Dearborn, Michigan, for Appellees. ON BRIEF: Robert Joseph Muise, Thomas More Law Center, Ann Arbor, Michigan, for Appellant. Laurie M. Ellerbrake, Dearborn, Michigan, for Appellees.Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.MOORE, J., delivered the opinion of the court, in which CLAY, J., joined. DAUGHTREY, J. (p. 743), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Each summer, Plaintiff George Saieg attends the Arab International Festival (“Festival”) in the City of Dearborn, Michigan (“City”). At the Festival, Saieg leads a group of Christians whose goal is to convert Muslims to Christianity. In 2009, Dearborn police instituted a leafleting restriction for the Festival. Pursuant to the restriction, no one may leaflet from the sidewalks that are directly adjacent to the Festival attractions, or on the sidewalks and roads that surround the Festival's core on each side by one to five city blocks. The restriction permits leafleting at the Festival only from a stationary booth and not while walking around the Festival.

Saieg sued the City of Dearborn and its Chief of Police, alleging that the leafleting restriction violated his First Amendment right to free speech, as well as his freedom to associate, his free exercise of religion, and his right to equal protection. The district court denied a temporary restraining order before the 2009 Festival and granted summary judgment to the defendants in 2010. This court granted Saieg an injunction pending appeal for the 2010 Festival, permitting Saieg to distribute leaflets from the outer sidewalks and roads, but not on the sidewalks that are directly adjacent to the Festival attractions.

On the free speech claim, we REVERSE the district court's grant of summary judgment to the defendants and its denial of summary judgment to the plaintiffs. We thereby invalidate the leafleting restriction within both the inner and outer perimeters of the Festival.¹ The restriction on the sidewalks that are directly adjacent to the Festival attractions does not serve a substantial government interest. The City keeps those same sidewalks open for public traffic and permits sidewalk vendors, whose activity is more obstructive to sidewalk traffic flow than pedestrian leafleting is. Moreover, the prohibition of pedestrian leafleting in the outer perimeter is not narrowly tailored to the goal of isolating inner areas from vehicular traffic. The City can be held liable because the Chief of Police, who instituted the leafleting restriction, created official municipal policy. We AFFIRM the district court's judgment for the defendants on all other claims. We REMAND to the district court for such further proceedings as are consistent with this opinion that may be warranted.

I. BACKGROUND

A. Substantive Facts1. The Arab International Festival

The American Arab Chamber of Commerce (“AACC”) organizes the Festival, which is free and open to the public. Each year, over 250,000 people attend the Festival, which features carnival rides, a main stage with live entertainment, international food, merchandise sales, a tent targeted at children, and tents in which artisans and other vendors display products. In 2009, forty artisan vendors, twenty-five information tables, fourteen food vendors, and seventeen sponsor booths took part in the Festival. These attractions are all located within the “inner perimeter” of the Festival: the eight blocks of Warren Avenue between Hartwell Street to the west and Kingsley Street to the east, as well as one block south on Miller Road, which intersects Warren Avenue. Due to the scale of the event, officers from the Dearborn Police Department supply extensive security and support the Festival from a “[c]ommand post trailer.” R. 47–11 (Ex. K: Haddad dep. at 52). The resolution authorizing the Festival “subject[s]” the Festival to “the rules and regulations of the Police Department.” R. 47–13 (Ex. M: Council Resolution)

Businesses located along the inner perimeter on Warren Avenue can obtain permits to display and sell their goods on the sidewalks outside their storefronts. Although the City itself issued the sidewalk permits prior to 2009, the City now delegates authority to issue the permits to the AACC. Businesses and organizations not located on Warren Avenue can purchase an information table. In fact, if businesses or organizations wish to distribute materials, the City's police department requires that the distribution occur from a “fixed location,” which in practice means an information table located in the street, not on the sidewalk. R. 47–8 (Ex. H: Mrowka dep. at 32). “[H]andbilling along the sidewalks that are adjacent to the [F]estival” is not permitted. R. 47–3 (Ex. C: Beydoun dep. 35). Police officers are expected to warn anyone who distributes leaflets and, if the person continues, to arrest the offender. Dearborn Chief of Police Ronald Haddad, who assumed his position shortly before the 2009 Festival and has prior experience with crowd control in other capacities, testified that a similar policy is in place at the Michigan State Fair. The Michigan State Fair “will not allow you to give out a paper clip unless you're stationary and at a booth. It just makes good sense, it's a good practice[,] and it's not a standard that is applied indiscriminately [;] it's across the board.” R. 47–11 (Ex. K: Haddad Dep. at 95). Fay Beydoun, Executive Director of the AACC, testified that the leafleting policy exists “to make sure that the sidewalks [a]re available, whether it's for the people attending the [F]estival or people [who a]re trying to get from one location to another to go to the businesses” along Warren Avenue. R. 47–3 (Ex. C: Beydoun Dep. at 37); see also R. 47–11 (Ex. K: Haddad Dep. at 18) (“[K]nowing that it [i]s going to be a very crowded situation, we ... do our very best to keep the sidewalks flowing.”).

To accommodate Festival traffic, the City barricades the roads within an “outer perimeter” or “buffer zone” that surrounds the inner perimeter. Although the outer perimeter does not contain attractions, it services the Festival by “restrict[ing] traffic,” R. 47–8 (Ex. H: Mrowka Dep. at 15), and “giv[ing] [vehicular] traffic some final point to turn away from the Warren Avenue destination,” R. 47–11 (Ex. K: Haddad Dep. at 26–27). The outer perimeter also enhances “crowd control [leading] into the [F]estival area.” R. 47–8 (Ex. H: Mrowka Dep. at 15). Finally, the outer perimeter includes parking for Festival attendees and vendors, as well as for displaced employees of Warren Avenue businesses and any of those businesses' patrons who are not attending the Festival. R. 47–3 (Ex. C: Beydoun Dep. at 43–44). The outer perimeter stretches one block north of Warren Avenue (Morrow Circle), one block south of Warren Avenue (Blesser Avenue), five blocks west of Hartwell Street (Schaefer Road), and four blocks east of Kingsley Street (Wyoming Avenue).

The restriction on leafleting applies in the outer perimeter area as well. Beydoun explained why: “if you allowed someone to distribute literature within [the] outer area, you might as well allow the other street vendors to set up tables and start selling things in that area, too. That is the buffer between going in and going out. You [have] to maintain a security area.” R. 47–3 (Ex. C: Beydoun Dep. at 58).

2. Saieg and the Arabic Christian Perspective

Saieg founded the Arabic Christian Perspective (“ACP”), a now-defunct “national ministry established for the purpose of proclaiming the Holy Gospel of Jesus Christ to Muslims. As part of its outreach efforts, ACP travel[ed] around the country attending and distributing Christian literature at festivals and mosques.” R. 13 (Amended Compl. ¶ 9). Because the City is home to a “big Muslim community,” the Festival provides Saieg the opportunity to evangelize “thousands of Muslims in one place.” R. 48 (Ex. A: Saieg Dep. at 42, 44). Before each Festival, the ACP operated an annual event called “Facing the Muslim Challenge.” In 2009, the program featured panel discussions, workshops on “[e]ffectively witnessing to Muslims,” debates, door-to-door outreach, and mosque tours. R. 47–2 (Ex. B: Program). The program culminated in outreach at the Festival. At each Festival from 2004 to 2008, Saieg and 90 to 120 ACP members distributed leaflets from the public sidewalks that abut Warren Avenue.

In 2009, Saieg had planned for 90 ACP members to continue the practice of leafleting while roaming the Festival. However, when Saieg shared these plans with a City police sergeant, Saieg learned that the new Chief of Police, Chief Haddad, would not permit anyone to distribute leaflets while walking around the Festival. Instead, the City provided the ACP with a booth, waiving the standard fee. The booth was poorly lit and located by carnival rides, which attracted mostly children. This problem was remedied in 2010, when the ACP's booth was lit and located “in the central area.” Saieg v. City of Dearborn, 720 F.Supp.2d 817, 834–35 (E.D.Mich.2010) (describing then-upcoming plans for the 2010 festival). Saieg also faces a more basic problem with booth-based evangelism: “[t]he penalty of leaving Islam according to Islamic books is death,” which makes Muslims reluctant to approach a booth that is publicly “labeled as ... Christian.” R. 48 (Ex. A: Saieg Dep. at 75). Saieg believes that evangelism is more effective when he can roam the Festival and speak to Muslims more discreetly. The ACP distributed 37,000 packets of religious materials in 2007 and 20,000 packets in 2008, but only 500...