Lefemine v. Wideman

• Citation: 672 F.3d 292
• Decision Date: 05 March 2012
• Docket Number: 10–2014.,Nos. 10–1905,s. 10–1905
• Parties: Steven LEFEMINE, d/b/a Columbia Christians for Life, Plaintiff–Appellant, v. Dan WIDEMAN, individually and in his official capacity; Mike Frederick, individually and in his official capacity; Lonnie Smith, individually and in his official capacity; Brandon Strickland, individually and in his official capacity; Tony Davis, Sheriff, in his official capacity, Defendants–Appellees.Steven Lefemine, d/b/a Columbia Christians for Life, Plaintiff–Appellee, v. Mike Frederick, individually and in his official capacity, Defendant–Appellant,andDan Wideman, individually and in his official capacity; Lonnie Smith, individually and in his official capacity; Brandon Strickland, individually and in his official capacity; Tony Davis, Sheriff, in his official capacity, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

672 F.3d 292

Steven LEFEMINE, d/b/a Columbia Christians for Life, Plaintiff–Appellant,

v.Dan WIDEMAN, individually and in his official capacity; Mike Frederick, individually and in his official capacity; Lonnie Smith, individually and in his official capacity; Brandon Strickland, individually and in his official capacity; Tony Davis, Sheriff, in his official capacity, Defendants–Appellees.Steven Lefemine, d/b/a Columbia Christians for Life, Plaintiff–Appellee,

v.Mike Frederick, individually and in his official capacity, Defendant–Appellant,andDan Wideman, individually and in his official capacity; Lonnie Smith, individually and in his official capacity; Brandon Strickland, individually and in his official capacity; Tony Davis, Sheriff, in his official capacity, Defendants.

Nos. 10–1905

10–2014.

United States Court of Appeals, Fourth Circuit.

Argued: Nov. 8, 2011.Decided: March 5, 2012.

ARGUED: Steven W. Fitschen, National Legal Foundation, Virginia Beach, Virginia, for Appellant/Cross–Appellee. Andrew Lindemann, Davidson & Lindemann, PA, Columbia, South Carolina, for Appellees/Cross–Appellant. ON BRIEF: Douglas E. Myers, National Legal Foundation, Virginia Beach, Virginia, for Appellant/Cross–Appellee. Robert D. Garfield, Davidson & Lindemann, PA, Columbia, South Carolina, for Appellee/Cross–Appellant Mike Frederick. Russell W. Harter, Jr., Chapman, Harter & Groves, P.A., Greenville, South Carolina, for Appellees Wideman, Smith, Strickland, and Davis.

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge WYNN wrote the opinion, in which Judge DUNCAN and Judge DIAZ joined.

OPINION

WYNN, Circuit Judge:

In November 2005, Steven C. Lefemine and members of Columbia Christians for Life (“Plaintiff”), a South Carolina anti-abortion organization, were asked by employees of the Greenwood County Sheriff's Department (“Defendants”) to remove large, graphic signs depicting aborted fetuses that they were using as part of a roadside demonstration. As the sole proprietor of Columbia Christians for Life, Lefemine subsequently brought an action under 42 U.S.C. § 1983 against Defendants in their individual and official capacities, alleging violations of his and Columbia Christians for Life members' First Amendment rights. The complaint sought injunctive and declaratory relief, damages, and attorney's fees under 42 U.S.C. § 1988.

Concluding that Defendants had violated Plaintiff's First Amendment rights, the district court entered summary judgment in favor of Plaintiff on those claims. Nonetheless, the district court held that Defendants were entitled to qualified immunity from suit in their individual capacities because the specific rights at issue were not clearly established at the time of the violations. In addition, the district court denied Plaintiff's request for attorney's fees but granted Plaintiff injunctive relief.

Plaintiff and Defendants cross-appeal different portions of the district court's opinion and order. For the reasons that follow, we affirm.

I.

The basic facts underlying this cause of action are not in dispute. Plaintiff is an organization that “actively seeks to raise public awareness of the horrors of abortion throughout the State of South Carolina.” J.A. 19. ¹ Pursuant to this mission, Plaintiff's members regularly “preach and carry signs critical of abortion in many public fora throughout the State of South Carolina,” signs which Plaintiff explains “depict aborted babies in order to shock the consciences of those who see the signs to the horror of abortion.” J.A. 19.

On November 3, 2005, as part of its “Show the Truth Tour” around South Carolina, about twenty of Plaintiff's members stopped in Greenwood County and “began to establish a Christian pro-life witness on the public sidewalks at the intersection of Montague Street and U.S. 25/S.C. 72 Bypass,” which is the “busiest intersection” in Greenwood County. J.A. 19–20, 65. They began preaching, distributing anti-abortion literature, and carrying large anti-abortion signs, including several with color photographs of aborted and mutilated fetuses, later described as “graphic” by Plaintiff in its own complaint.

Shortly after the start of Plaintiff's demonstration, Major Lonnie Smith of the Greenwood County Sheriff's Office, an individually named defendant in this lawsuit, received a phone call from Lieutenant Randy Miles, notifying him of complaints that had been received from motorists driving by the intersection. In a later deposition, Major Smith stated that he was informed that protesters were in the roadway with the signs, and that one mother had called to say that her five-year-old son was “screaming, crying” after seeing the signs. J.A. 360. Major Smith and Deputy Brandon Strickland, another named defendant, proceeded to the intersection to investigate further.

In the meantime, Lieutenant Miles approached Lefemine to tell him about the “complaints about the graphic photographs and this was causing a disturbance in the traffic flow at th[e] intersections.” J.A. 360. Major Smith observed the individuals holding signs and megaphones, and Deputy Strickland took several pictures of the scene. Major Smith called Chief Deputy Mike Frederick, also a named defendant, to report the events to him. Chief Deputy Frederick directed him to tell Plaintiff's members that because of the complaints about the graphic pictures, “they could continue to protest but they would either have to put away or take down the signs or ... possibly be ticketed for breach of peace.” J.A. 361. The transcript of the ensuing conversation between Major Smith and Lefemine, as quoted in the district court's opinion and order, indicates that Major Smith mentioned only the complaints about the graphic nature of the photographs and not any traffic or safety concerns when he spoke to Lefemine.

Lefemine responded that the Sheriff's Office was violating Plaintiff's First Amendment rights, to which Major Smith replied, “You do not have a right to be offensive to other people in that manner,” though he also maintained that Plaintiff's members only needed to take the signs down but could remain on the sidewalk. J.A. 362. Following the conversation, Plaintiff's members packed up their signs and left shortly thereafter.

A year later, an attorney for Plaintiff sent a letter to Sheriff Dan Wideman, also a named defendant, informing him that Plaintiff's members intended to return to Greenwood County “in the near future to exercise their First Amendment freedoms by highlighting the national tragedy of abortion.” J.A. 362. The letter included a warning that “any further interference with Columbia Christians for Life's message” by the Greenwood County Sheriff's Office would “leave [Plaintiff] no choice but to pursue all available legal remedies.” ² J.A. 362. Chief Deputy Frederick answered that the Department's actions in 2005 were based on Plaintiff's methodology, not its content, and “should we observe any protester or demonstrator committing the same act, we will again conduct ourselves in exactly the same manner: order the person(s) to stop or face criminal sanctions.” J.A. 363. Subsequent demonstrations by Plaintiff on the city side of the intersection in 2006 and 2007 occurred without incident.

On October 31, 2008, Plaintiff filed a complaint against Wideman, Frederick, Smith, and Strickland, alleging violations of his First Amendment rights. Plaintiff amended the complaint on February 27, 2009, to include Sheriff Tony Davis, who had been elected to replace Wideman, as a defendant. Following cross-motions for summary judgment, as well as motions in opposition from all parties, the district court held a hearing on June 23, 2010.

On July 8, 2010, the district court entered an opinion and order finding that Defendants had infringed on Plaintiff's First Amendment rights to free speech, peaceable assembly, and free exercise of religion, but were entitled to qualified immunity for their actions. The district court declined to award Plaintiff attorney's fees but did enjoin Defendants “from engaging in content-based restrictions on Plaintiff's display of graphic signs without narrowly tailoring its restriction to serve a compelling state interest.” J.A. 378.

II.

Although the parties have filed cross-appeals, no one challenges the fundamental conclusion that Defendants' actions were an impermissible content-based restriction on Plaintiff's First Amendments rights. Accordingly, for purposes of this appeal, we accept—as we must—the premise that Defendants' actions were an impermissible content-based restriction on Plaintiff's First Amendments rights. See generally Edwards v. City of Goldsboro, 178 F.3d 231, 241 n. 6 (4th Cir.1999) (citing Fed. R.App. P. 28(a)(9)(A) and noting that issues not briefed or argued on appeal are deemed abandoned). However, in so doing, we pass no judgment on whether the district court was correct in its determination.

On appeal, Plaintiff contends that the district court (1) erred in granting Defendants qualified immunity; (2) abused its discretion by failing to rule on Plaintiff's request for declaratory relief; and (3) abused its discretion by failing to award Plaintiff attorney's fees. Defendants assert only that the district court erred in awarding prospective injunctive relief against Frederick, who is no longer employed by the Greenwood County Sheriff's Office. We address each of these issues in turn.

A.

First, Plaintiff argues that the district court erred by granting Defendants qualified immunity, asserting that they violated a clearly established right, and reasonable officers should have known that their actions violated that right. We review de novo the district court's rulings on the parties' respective motions for summary judgment on grounds of qualified immunity. Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.1992).

The doctrine of qualified immunity “protects government officials from liability for civil damages...