Crowder v. Housing Authority of City of Atlanta

• Decision Date: 07 May 1993
• Docket Number: No. 91-9008,91-9008
• Citation: 990 F.2d 586
• Parties: Thomas E. CROWDER, Jr., Plaintiff-Appellant, B. Mae Miller, Dorothy Maddox, Plaintiffs, v. HOUSING AUTHORITY OF THE CITY OF ATLANTA, Samuel A. Hider, Doris Alexander, W.H. Mays, Each in their Individual and Official Capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 586

990 F.2d 586

Thomas E. CROWDER, Jr., Plaintiff-Appellant, B. Mae Miller, Dorothy Maddox, Plaintiffs, v. HOUSING AUTHORITY OF THE CITY OF ATLANTA, Samuel A. Hider, Doris Alexander, W.H. Mays, Each in their

Individual and Official Capacities,

Defendants-Appellees.

No. 91-9008.

United States Court of Appeals,

Eleventh Circuit.

May 7, 1993.

Thomas M. Byrne, Sutherland, Asbill & Brennan, Atlanta, GA, for plaintiff-appellant.

Nina Hickson Perry, Mack & Bernstein, Ira P. Bernstein, Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT, EDMONDSON and BIRCH, Circuit Judges.

EDMONDSON, Circuit Judge:

This case is about the rights of a public housing tenant to use common areas in his building for group Bible study. At trial, a jury found that none of the Atlanta Housing Authority ("AHA") management's restrictions violated the tenant's First Amendment rights. The District Court rejected the tenant's later motion for a judgment notwithstanding the verdict, and the tenant appeals. Because we conclude that some of management's acts did violate the tenant's First Amendment rights, we REVERSE in part, AFFIRM in part, and REMAND for a determination of damages.

I. Facts and Background ¹

Thomas Crowder ("Crowder") lived in a public housing apartment building owned and operated by AHA. ² During his stay, Crowder attempted to hold Bible study meetings using the building's common facilities. His efforts met with a hostile reaction from some tenants and from the building's management.

Crowder wanted to use the building's auditorium and the adjacent library. Auditorium activities included, among other things, ceramics classes, bingo games, political speeches, and Sunday afternoon religious services. The adjacent library, which contained tables and chairs, could be used as an alternative meeting place. Doris Alexander ("Alexander"), the building manager, controlled the access to these facilities and made certain that no scheduling conflicts arose. For the most part, the tenants encountered no difficulties in using these facilities.

Like Crowder, most of the residents were elderly or disabled. The residents were concerned about their safety, and some were afraid to leave their apartments in the evenings and at night. The building doors remained locked, and no guests were permitted to enter the building before 8:30 a.m.

For several weeks in 1986, Crowder held Bible studies in the auditorium. Some tenants complained about the way Crowder promoted these meetings, in particular Crowder's habit of widely posting notices and slipping notices under tenants' doors--whether or not the respective tenants had shown interest in Bible studies. No evidence shows, however, that these Bible study meetings themselves disrupted the normal activities of other people in the building. Alexander prohibited these studies because of scheduling problems and concerns about tenant safety. Crowder objected to the ban. Months later, William Sheals, Alexander's supervisor, told Crowder that Crowder would have to obtain majority approval at a tenants' meeting to resume his Bible studies. Nothing suggests that any other tenant's right to use common facilities required such an affirmative vote.

In October 1986, the required tenant meeting took place. There is considerable dispute over exactly what was decided at this meeting. Crowder claims that the tenants approved his resolution to hold Bible studies in the auditorium, so long as there was no conflict with other planned events. The management, on the other hand, claims that the tenants allowed Crowder to hold Bible studies on Friday nights only. ³ Crowder objected to the Friday-night-only restriction.

On Monday, December 8, 1986, at 11:00 a.m., Crowder attempted to hold a one-hour Bible study in the library. The record indicates that Crowder's meeting that day was interfering with other tenants' preparation for a scheduled Christmas party in the auditorium: furniture from the auditorium was being moved to the library for storage. Anticipating trouble, Crowder tape-recorded the events of that day. The tape recording indicates that Alexander, Roosevelt Profit, the building's director of security, and W.H. Mays, an Atlanta policeman, directed Crowder to stop the Bible study and to leave the library. ⁴ These three people informed Crowder that he could have his Bible study on Friday nights only and that, if he wanted to hold a Bible study at other times, he would have to hold it in his room. Crowder insisted on his right to hold his Bible study, then and there. Mays arrested Crowder, but did not take him to jail. Instead, Mays gave Crowder a summons to appear in Atlanta Municipal Court on a charge of "violation of lawful order to leave." The next day, the Atlanta Municipal Court dismissed the charge. ⁵

Crowder later filed this action for damages and other relief. At trial, the District Court rejected Crowder's request for a directed verdict on the issue of First Amendment liability. The jury found that none of management's actions violated Crowder's First Amendment rights. ⁶ The District Court denied Crowder's later motion for a judgment notwithstanding the verdict.

Crowder appeals, contending that the District Court applied the wrong First Amendment standards to the common facilities and to management's actions.

II. The Common Facilities

The Supreme Court has defined several kinds of government-owned property for First Amendment purposes: the traditional public forum, the designated public forum, and the nonpublic forum. Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-955, 74 L.Ed.2d 794 (1983). Traditional public fora generally include public streets and parks. Designated public fora are created when the government opens property to the public for expressive activity and are subject to the same standards as traditional public fora. In traditional or designated public fora, the state may "enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication." Perry, 460 U.S. at 45-46, 103 S.Ct. at 955; Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1201, 1202 (11th Cir.1991). A nonpublic forum is "[p]ublic property which is not by tradition or designation a forum for public communication," and limits on access to such a forum must meet only a reasonableness standard. Perry, 460 U.S. at 46, 103 S.Ct. at 955.

One kind of designated public forum is the limited public forum. Perry, 460 U.S. at 46 n. 7, 103 S.Ct. at 955 n. 7. A limited public forum is a forum for certain groups of speakers or for the discussion of certain subjects. Id.; Widmar v. Vincent, 454 U.S. 263, 269, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981) (student groups have First Amendment right of equal access to university facilities); City of Madison Joint School District v. Wisconsin Public Employment Relations Comm'n, 429 U.S. 167, 175, 97 S.Ct. 421, 426, 50 L.Ed.2d 376 (1976) (teachers have right to speak on contract at school board meeting, which is a limited public forum for subjects relating to operation of district's public schools). See also Searcey v. Crim, 815 F.2d 1389, 1391 (11th Cir.1987) (discussing three kinds of government-owned property for First Amendment purposes). The government may restrict access to limited public fora by content-neutral conditions for the time, place, and manner of access, all of which must be narrowly tailored to serve a significant government interest. Perry, 460 U.S. at 45-46, 103 S.Ct. at 955. A restriction which vests unlimited discretion in a government actor, however, opens the way to arbitrary suppression of particular points of view. Such arbitrariness is "inherently inconsistent with a valid time, place, and manner regulation." Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 649, 101 S.Ct. 2559, 2565, 69 L.Ed.2d 298 (1981); Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 675-76 (11th Cir.1984) (holding city licensing ordinance unconstitutional because it gave officials unchecked discretion to prevent newspaper distribution).

The District Court concluded, and instructed the jury, that the auditorium was a limited public forum for tenants. We agree. Management opened the auditorium to a wide range of expressive activities, including ceramics classes, political speeches, and religious services. As a result, the auditorium here corresponds to the university facilities held to be a public forum in Widmar.

The District Court concluded that the library was no public forum because it was not ordinarily used for expressive purposes. Crowder contends that the library should have been treated as a limited public forum because it was a common facility available to the tenants and was an alternative meeting site to the auditorium. The record, however, does not show that tenants regularly or frequently met in the library. Irregular and infrequent use does not transform a common facility into a public forum for expressive group meetings. We agree that the library was a nonpublic forum. See Perry, 460 U.S. at 47, 103 S.Ct. at 956 (selective access does not transform government property into a public forum); United States v. Gilbert, 920 F.2d 878, 885 (11th Cir.1991) (isolated First Amendment use of government-owned portico does not create a public forum).

III. Management Actions

A. The Bible Study Prohibition

Alexander prohibited Crowder from using the common areas for Bible studies from July 1986 to October 1986. She placed no comparable restrictions on other tenants or other uses. Alexander justifies these restrictions on the grounds that Crowder's use of the facilities created security problems and that she needed to avoid scheduling conflicts. Neither...