Andree v. Ashland County

• Decision Date: 05 May 1987
• Docket Number: 85-3189,Nos. 85-3054,s. 85-3054
• Citation: 818 F.2d 1306
• Parties: Jeffrey L. ANDREE and Carol E. Andree, Plaintiffs-Appellants, v. ASHLAND COUNTY, a body politic of the State of Wisconsin; Donald W. Wilmot; David Enblom; Harlan Miller; John Felix; and Dennis Delegan, Defendants- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1306

818 F.2d 1306

55 USLW 2641

Jeffrey L. ANDREE and Carol E. Andree, Plaintiffs-Appellants,

v.

ASHLAND COUNTY, a body politic of the State of Wisconsin;

Donald W. Wilmot; David Enblom; Harlan Miller;

John Felix; and Dennis Delegan,

Defendants- Appellees.

Nos. 85-3054, 85-3189.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 1986.

Decided May 5, 1987.

Daniel F. Snyder, DeBardeleben & Snyder, Park Falls, Wis., for defendants-appellees.

Steven J. Schooler, Brynelson, Herrick, Buciada, Dorschel & Armstrong, Madison, Wis., for plaintiffs-appellants.

Before CUMMINGS and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

This is an appeal from the grant of summary judgment in favor of the defendants on plaintiffs' claim under 42 U.S.C. Sec. 1983 (1982). Because we find that the district judge correctly concluded that there existed no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law, we affirm.

I.

Plaintiffs are the owners of a resort in Ashland County, Wisconsin, known as the "Idlewild." The Idlewild has been a place of musical entertainment since the early part of this century. As a part of the resort, plaintiffs operate a dance hall and serve alcoholic beverages. Defendants are Ashland County; Donald Wilmot, its Sheriff; David Enblom, its Undersheriff; and Harlan Miller, John Felix, and Dennis Delegan, three of its deputies. The events giving rise to this suit stem from plaintiffs' efforts to promote an outdoor music festival at the Idlewild in August of 1981, and the defendants' response.

Ashland County (the "County") had in force at that time an ordinance providing for the licensing of assemblies of more than 250 people. Pursuant to the ordinance, the promoter of such an assembly was required to provide certain sanitary and emergency facilities, and post a cash bond. ¹ In order to obtain a permit to hold an assembly covered by the ordinance, the promoter had to submit an application detailing compliance with the ordinance at least thirty days prior to a regularly scheduled meeting of the county Board of Supervisors (the "Board"). During the period in question, the Board met three times a year--in April, September, and November. Under the ordinance, the Board was given no discretion to deny a permit, provided that the requirements of the ordinance were met. The ordinance purported to be enforceable by injunction.

In August of 1981, the defendant sheriff learned that the plaintiffs were planning an outdoor rock festival and that they expected 2000 to 4000 people to attend. He discovered that they had not applied for a permit under the ordinance and directed one of his deputies (a non-party to this suit) to deliver a copy of the ordinance to plaintiffs. In addition, he requested that same deputy to determine whether the plaintiffs had obtained a proper extension of their liquor license to allow them to serve alcohol on the concert grounds; they had. The plaintiffs told the deputy that they did not intend to comply with the ordinance, because it was "not worth the paper it was written on." The sheriff then consulted with the county attorney, who decided to file an action seeking to enjoin the rock festival. Injunctive relief was denied by a Wisconsin state court on the ground that, under Wisconsin law, a municipal ordinance may not be enforced by way of injunction unless the activity to be enjoined constitutes a nuisance per se, which the rock festival did not. Thus, the state court found it unnecessary to address the contention that the ordinance was invalid because it violated the First Amendment of the United States Constitution.

Following the failed injunction attempt, the sheriff again consulted with the county attorney. He decided to send the defendant undersheriff Enblom and three deputies to the festival, "to observe the crowd, observe what is going on, make sure that everything was peaceable and not to take any enforcement action unless there was a crime committed and to offer any assistance that we could to the large gathering." The deputies were also told to check for violations of the liquor laws. ² They were told to wear a "full dress uniform," which apparently meant that they were to be equipped with riot batons. ³

Upon their arrival, the deputies were told that their presence was unwanted, and that no one was allowed in unless they paid the admission fee. However, the deputies entered the grounds over plaintiffs' objections. ⁴ Once inside, they patrolled for a short time and then left. However, their conduct at the concert is the subject of some debate. According to the deputies, they did not verbally or physically threaten anyone. Plaintiffs, on the other hand, contend that the officers harassed and intimidated concert patrons. Plaintiffs rely on the affidavit of one Daniel Dassow, who stated that:

.... As the group of three or four deputy sheriffs walked through the crowd in attendance at the concert, some of the said deputy sheriffs carried their billy clubs in their hands. The affiant saw the deputy sheriffs approach various concert patrons and groups of concert patrons and engage such concert patrons in discussions.

The arrival of the marked squad cars upon the concert grounds, the number of deputy sheriffs present, the appearance of the deputy sheriffs in full uniforms with guns and billy clubs, the conduct of said deputy sheriffs in walking in force through the assembled crowd, and the unsolicited approach of said deputy sheriffs to concert patrons and groups of concert patrons were done in such a manner as to intimidate the affiant and the other persons in the group of which the affiant was a member....

By reason of the intimidation caused by the presence, appearance, and activities of said deputy sheriffs, as described above, and for that reason only, the affiant and each of the other persons comprising the group of which the affiant was a member, left the concert grounds approximately 5 or 10 minutes after the arrival of said deputy sheriffs and never returned.

R. 82 at 2.

Additionally, both the plaintiffs testified in their depositions that numerous concert patrons left shortly after the arrival of the deputies and expressed their feelings of intimidation as the reason for their leaving. The plaintiffs refunded the money of the concert patrons who left. Although both of the plaintiffs denied seeing any of the deputies swing or brandish the batons at any concert patrons, or seeing the deputies remove the batons from their holsters while patrolling through the crowd, both swore out a set of interrogatory responses which stated that the deputies "patroll[ed] in a menacing manner among the patrons of plaintiffs' music concert on plaintiffs' premises while in uniform and conspicuously [bore] firearms and clubs [and] wield[ed] clubs in a threatening manner while patrolling among the patrons of plaintiffs' music concert on plaintiffs' premises." Additionally, plaintiff Jeffrey Andree testified he casually remarked to undersheriff Enblom, "See, we aren't so bad here in Butternut" and was greeted with a threatening reply "We are not through with you yet."

Plaintiffs contended that, as a result of the unfavorable publicity generated by the attempt to secure the injunction, the crowd that attended the festival was only 100 to 350 rather than the expected 2000 to 4000. Additionally, plaintiffs claimed damages for the refunds they gave to patrons who left as a result of the deputies' intimidating manner, and for a general loss in subsequent business which they attribute to the actions of the defendants. Finally, the plaintiffs sought $400,000 in punitive damages, a declaration that the ordinance was unconstitutional, and an injunction against its enforcement. The primary thrust of plaintiffs' claims was that the ordinance, the injunction suit, and the actions of the deputies violated plaintiffs' First Amendment rights. Additionally, however, they asserted that they were deprived of their rights under the Fourth, Fifth, and Fourteenth Amendments.

The district court granted the defendants' motions for summary judgment on plaintiffs' claims for damages arising from the attempt to secure the injunction and the police conduct on the day of the concert, but denied defendant Ashland County's summary judgment motion regarding the constitutionality of the ordinance under the First Amendment. Subsequently, the County rescinded the ordinance, and the district court entered judgment for the County on the remaining claims, apparently viewing them to be moot.

On appeal, the plaintiffs challenge the disposition of their First Amendment claims regarding the injunction proceedings and their First and Fourth Amendment claims regarding the conduct of the deputies the day of the concert. ⁵

II.

We turn first to the claim that bringing the injunction action constituted a deprivation of plaintiffs' First Amendment rights in violation of 42 U.S.C. Sec. 1983. We agree with the district court that the state lawsuit did not constitute such a deprivation. ⁶ This conclusion is suggested, if not compelled, by this court's holdings in Reichenberger v. Pritchard, 660 F.2d 280 (7th Cir.1981) and Goldschmidt v. Patchett, 686 F.2d 582 (7th Cir.1982).

In Reichenberger, a private citizen and a county official conspired together to suppress non-obscene nude dancing at a local nightclub. In furtherance of their plan, they attempted to participate in three separate municipal administrative proceedings in an effort to have the clubs' liquor licenses revoked or to make the cost of renewal prohibitively expensive. The conspirators failed to prevent the renewal of the licenses, although the club owners did incur substantial legal expenses in securing the renewals. This court, reviewing the dismissal of a complaint brought by the club owners, held:

The complaint does not allege that the plaintiffs'...