896 F.2d 190 (6th Cir. 1990), 89-1055, Leonardson v. City of East Lansing

Docket Nº:89-1055.
Citation:896 F.2d 190
Party Name:Dave LEONARDSON, Terrance Barrett, Paul Kupperman, individuals living in a Police Zone established by the City of East Lansing, MI, Plaintiffs-Appellants, v. CITY OF EAST LANSING, John B. Czarnecki, Mayor; Joan B. Hunault, Mayor Pro-Tem; Liz Schweitzer, Ralph Monsma, David L. Balas, Council Members; Robert Foster, Police Chief; Tom Dority, City Man
Case Date:February 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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896 F.2d 190 (6th Cir. 1990)

Dave LEONARDSON, Terrance Barrett, Paul Kupperman,

individuals living in a Police Zone established by

the City of East Lansing, MI,

Plaintiffs-Appellants,

v.

CITY OF EAST LANSING, John B. Czarnecki, Mayor; Joan B.

Hunault, Mayor Pro-Tem; Liz Schweitzer, Ralph Monsma, David

L. Balas, Council Members; Robert Foster, Police Chief;

Tom Dority, City Manager; all of the City of East Lansing

individually and in their representative capacities,

Defendants-Appellees.

No. 89-1055.

United States Court of Appeals, Sixth Circuit

February 13, 1990

Argued Nov. 28, 1989.

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Dorean M. Koenig (argued), T.M. Cooley Law School, Lansing, Mich., for plaintiffs-appellants.

Thomas M. Hitch (argued) and Dennis E. McGinty, East Lansing, Mich., for defendants-appellees.

Before MARTIN and NORRIS, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Plaintiffs-appellants, Leonardson, Barrett and Kupperman, appeal the district court's judgment granting defendants-appellees', the City of East Lansing's, motion for summary judgment that Ordinance 653 is constitutional and not preempted by the Governor's Emergency Powers Act, Mich.Comp.Laws Ann. Sec. 10.31 et seq. For the following reasons, the judgment of the district court is affirmed in part and reversed in part.

I.

On April 7, 1987, the City of East Lansing passed Ordinance 653, which authorized the mayor, based upon a finding and recommendation by the chief of police, to establish a safety zone or police line to prevent the occurrence of certain specified emergencies. The Ordinance stated:

9.111. Safety Zone, Police Line:

(a) When any fire, accident, explosion, parade, calamity, public disturbance, public nuisance as defined by section 9.47 1

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of this Code, or other occasion or event causes or may cause persons to collect on the public streets, sidewalks, or other areas of the City, the Chief of Police or officer acting for him or her may establish a safety zone, or police line as may be necessary for the purpose of affording a clearing for:

(1) the protection of persons and property;

(2) police officers, firemen, emergency medical personnel, and other personnel performing operations in accordance with their duties;

(3) the exclusion of the public from the vicinity of a fire, accident, explosion, calamity, other emergency or public disturbances or public nuisance;

(4) the passage of a parade;

(5) the movement of traffic.

Penalties were provided for violations of the Ordinance. Section 9.111(b), (c) stated:

(b) Any person who shall knowingly cross any such line, knowingly enter into any such zone, or remain in any such zone after being requested to leave, shall be guilty of a misdemeanor. Provided, that bona fide and properly identified representatives of the press and media, residents, medical or clerical persons intending to minister to residents of the zone, and such other persons as the Chief of Police or officer acting for him or her may be permitted to cross such lines or enter into such zone, and may remain in such zone so long as they will not and do not interfere with emergency personnel performing their duties.

(c) Every person present within such zone shall comply with any necessary order or instruction of any police officer and any person who refuses to comply with the necessary order of a police officer shall be guilty of a misdemeanor.

Finally, Section 9.112 of the Ordinance empowered the mayor to establish a police line based upon an affidavit of the chief of police.

9.112. Mayor's Authority to Establish Safety Zone.

When the Chief of Police has reasonable or probable cause to believe and does believe that an event or occasion described in section 9.111 will occur, the Police Chief may file a verified statement with the Mayor setting forth the basis for such belief and a recommendation that a safety zone or police line be established to prevent, suppress, or contain such occurrence or event. If the Mayor is satisfied from all the facts contained in the statement, including reliable information supplied to the Chief from credible persons that reasonable and probable cause exists, the Mayor may authorize the establishment of a safety zone and/or a police line for such locations and periods of time as may be necessary to prevent, suppress, or contain such event or occurrence. Such Mayoral order shall be effective only until the next regularly scheduled Council meeting, or a special meeting called to review such order, but may thereafter be extended or continued by an affirmative vote of a majority of the Council.

The Ordinance was passed in response to a drunken, raucous semi-annual event known as Cedarfest, which had escalated from a gathering of an estimated 2000 students in 1981 to an estimated 4000-6000 people in 1986, and took place along the streets bordering several apartments of primarily student housing known as Cedar

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Village, an area adjacent to the main campus of Michigan State University.

In 1986 the city tried to prevent the occurrence of the event which over the years had resulted in increasingly violent acts of vandalism and destruction of property by intoxicated individuals. However, the police were unable to control the crowd or prevent the destruction of property. The mayor appointed a task force to develop strategies to end Cedarfest. The task force was composed of students, faculty, residents of the Cedar Village apartments and city staff. The mayor also held meetings with law enforcement officials from Kalamazoo, the home of Western Michigan University, and Mt. Pleasant, the home of Central Michigan University. Both cities had had similar problems and had passed ordinances similar to Ordinance 653.

After the Ordinance was passed on April 7, 1987, rumors began to circulate that Cedarfest would again occur in May 1987. On May 15, 1987, the chief of police filed a verified statement with the mayor, setting forth his reasons for believing that Cedarfest would occur on May 16, 1987, 2 and recommending the establishment of a police line to cordon off the area. The mayor determined that there was probable cause that a public nuisance was likely to occur and pursuant to the Ordinance, the mayor authorized the establishment of a police line which commenced at approximately 4:00 p.m. on Saturday, May 16, 1987, and was removed approximately ten hours later at 2:11 a.m. on Sunday, May 17, 1987. 3 The police cordoned off an area approximately four blocks long and one and one-half blocks wide and restricted access to the area to persons who displayed a proper pass.

Under the authority of the chief of police, prior to the cordoning off of the area, passes were issued to known residents in order to allow them to travel back and forth across the police line. A letter was sent informing the residents that the event known as Cedarfest would no longer be allowed to take place. The letter stated:

To accomplish this, entry into your neighborhood on the day of the event must be restricted to persons residing in the area.... The passes are being given to you now and should be kept for use during the remainder of Spring Term. The resident pass is issued to you personally and you should carry it and treat it just like your drivers license, student ID and other personal papers. The pass should not be loaned or given to anyone else. If someone else is found to have it, your pass will be forfeited and they could be arrested.

The police were instructed to enforce the Ordinance by arresting those persons crossing the line without proper identification. According to a memorandum issued by the city manager, the number of people who gathered on the night of May 16th was 250 and the number of arrests was 44. The establishment of the police line and pass system effectively prevented the occurrence of Cedarfest and the destruction of property previously experienced. On September 9th, 1987, the circuit court for Ingham County granted an injunction against planning or participating in Cedarfest "to be held on any weekend in October 1987, May 1988, October 1988, May 1989, October 1989, May 1990, October 1990, or May 1991." In October 1987, residents of Cedar Village were sent a letter similar to the one sent in May, but no police line was established, and the bi-annual event has not occurred since.

Appellants filed suit on August 31, 1987. Appellants were residents of the residential area which had been sealed off, and they had been issued passes. Appellant Leonardson, who stated that he is a real estate broker, not a student, alleged that he was

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unable to have free ingress and egress to and from his home, he was subjected to being stopped at the perimeter of the line and required to display his pass in order to gain entrance to his own home, and his friends were unable to have access to his home. 4 Appellants challenged the constitutionality of Ordinance 653 and the pass system and requested declaratory relief. In an amended complaint filed on April 22, 1988, appellants included a pendant state law claim, alleging that Ordinance 653 was preempted by the Governor's Emergency Power Act, Mich.Comp.Laws Ann. Sec. 10.31.

Appellants challenged the constitutionality of the...

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