Believers v. Wayne Cnty., 13–1635.

• Decision Date: 27 August 2014
• Docket Number: No. 13–1635.,13–1635.
• Citation: 765 F.3d 578
• Parties: BIBLE BELIEVERS; Ruben Chavez, aka Ruben Israel; Arthur Fisher; Joshua DeLosSantos, Plaintiffs–Appellants, v. WAYNE COUNTY; Benny N. Napoleon, in his official capacity as Sheriff, Wayne County Sheriff's Office; Dennis Richardson, individually and in his official capacity as Deputy Chief, Wayne County Sheriff's Office; Mike Jaafar, individually and in his official capacity as Deputy Chief, Wayne County Sheriff's Office, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

765 F.3d 578

BIBLE BELIEVERS; Ruben Chavez, aka Ruben Israel; Arthur Fisher; Joshua DeLosSantos, Plaintiffs–Appellants,

v.WAYNE COUNTY; Benny N. Napoleon, in his official capacity as Sheriff, Wayne County Sheriff's Office; Dennis Richardson, individually and in his official capacity as Deputy Chief, Wayne County Sheriff's Office; Mike Jaafar, individually and in his official capacity as Deputy Chief, Wayne County Sheriff's Office, Defendants–Appellees.

No. 13–1635.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 21, 2014.

Decided and Filed: Aug. 27, 2014.

ARGUED:Robert Joseph Muise, American Freedom Law Center, Ann Arbor, Michigan, for Appellants. Nabih H. Ayad, Nabih H. Ayad & Associates, P.C., Canton, Michigan, for Appellees. ON BRIEF:Robert Joseph Muise, American Freedom Law Center, Ann Arbor, Michigan, David Yerushalmi, American Freedom Law Center, Washington, D.C., for Appellants. Nabih H. Ayad, Nabih H. Ayad & Associates, P.C., Canton, Michigan, for Appellees.

Before: CLAY and DONALD, Circuit Judges; MAYS, District Judge. ^*

DONALD, J., delivered the opinion of the court, in which MAYS, D.J., joined. CLAY, J. (pp. 592–600), delivered a separate dissenting opinion.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

This appeal requires us to “grapple[ ] with claims of the right to disseminate ideas in public places as against claims of an effective power in government to keep the peace[.]” Niemotko v. Maryland, 340 U.S. 268, 273–74, 71 S.Ct. 328, 95 L.Ed. 280 (1951) (Frankfurter, J., concurring). Plaintiffs–Appellants Bible Believers, Ruben Chavez, Arthur Fisher, and Joshua DeLosSantos appeal the district court's grant of summary judgment in favor of Defendants–Appellees Wayne County, Michigan; Wayne County Sheriff Benny Napoleon; and Wayne County Deputy Chiefs Dennis Richardson and Mike Jaafar. Appellants claim that Appellees violated their First Amendment rights to free speech and free exercise of religion and the Fourteenth Amendment's Equal Protection Clause. All of these claims arise out of events at the 2012 Arab International Festival in Dearborn, Michigan, where Appellants' proselytizing led an angry crowd to heave debris at Appellants; this reaction caused Appellees Jaafar and Richardson to warn Appellants that they would issue disorderly conduct citations to Appellants if they did not leave. The district court held that Appellees did not violate Appellants' First Amendment free-speech and free-exercise rights and did not violate the Fourteenth Amendment's Equal Protection Clause. Because it did not find any constitutional violations, the district court did not address qualified immunity. It did offer an alternate holding that, even if Appellants' rights had been violated, Wayne County would not be subject to municipal liability. For the reasons explained below, we AFFIRM.

I.

The City of Dearborn in Wayne County, Michigan, has hosted the Arab International Festival (“Festival”) every summer from 1995 until 2012. A three-day event that was free and open to the public, the Festival welcomed roughly 250,000 attendees and featured carnival attractions, live entertainment, international food, and merchandise sales. See Saieg v. City of Dearborn, 641 F.3d 727, 730 (6th Cir.2011). The 2012 Festival had eighty-five vendors, information tables, and sponsor booths—several of which were affiliated with various Christian and other religious groups. Over the years, Christian evangelists have targeted the Festival. See Saieg, 641 F.3d at 731–32.

Bible Believers, which is comprised of Christian evangelists, is, in their own words, “an unincorporated association of individuals who desire to share and express their Christian faith with others, including Muslims, through various activities, including street preaching and displaying signs, banners, and t-shirts with Christian messages and Scripture quotes.” Ruben Chavez is a founder and leader of Bible Believers; Joshua DeLosSantos and Arthur Fisher are members. To Appellants, Dearborn “is an important place for [their] evangelical activities” because of its large Islamic population.

Appellants attended two days of the 2011 Festival, bearing “Christian signs, banners, and t-shirts.” On the first day, officers from the Wayne County Sheriff's Office (“WCSO”) steered them into a cordoned off “free speech zone.” There was no free speech zone when they returned on the second day, so Appellants moved through the crowd. This allegedly peaceful proselytizing sparked confrontation with bystanders, which ended with the arrest of one Bible Believer, who was later released without charge. This arrest provided part of the impetus for Appellants' return to the Festival in 2012.

During the build-up to the 2012 Festival, Chavez's attorney wrote a letter to Wayne County Sheriff Benny Napoleon and Robert Fianco, the Wayne County Executive, to notify them that Chavez intended to exercise his constitutional rights at the 2012 Festival. This letter also alleged that the WCSO sided with “the violent Muslims” during the 2011 Festival and then cited Glasson v. City of Louisville, 518 F.2d 899, 906 (6th Cir.1975), to assert that “officers have a duty to protect speakers like [Chavez] from the reactions of hostile audiences. If the officers allow a hostile audience to silence a speaker, the officers themselves effectively silence the speaker and effectuate a ‘heckler's veto.’ ” The letter concludes: “We fully expect and demand Wayne County Sheriff's Department to protect [Chavez] and his friends from physical assaults and allow [Chavez] and his friends to engage in their peaceful expression.”

Zenna Elhasan, Wayne County's Corporation Counsel, responded on June 14, 2012. After disputing Chavez's characterization of the 2011 events, Elhasan repudiated any inference of a “special relationship” with Chavez: “The WCSO owes a duty to the public as a whole and is not required to serve as a security force for the sole benefit of [Chavez] and the ‘Bible Believers.’ ” Elhasan further advised that the WCSO cannot prevent all unlawful conduct and that “under state and local ordinances, individuals can be held criminally accountable for conduct which has the tendency to incite riotous behavior or otherwise disturb the peace.” Elhasan concluded:

Wayne County has great reverence for the First Amendment, but it cannot protect everyone from the foreseeable consequences that come from speech that is designed and perhaps intended to elicit a potentially negative reaction. The WCSO will not restrict the First Amendment Rights of any individual, but, by following the laws requiring the observance of such rights, the WCSO neither cedes its right to maintain the peace nor assumes unto itself liability for the illegal conduct of others.

The 2012 Festival ran from June 15 through June 17 along several blocks of Warren Avenue in Dearborn; the WCSO was the Festival's exclusive law enforcement agency. According to the WCSO, it allocated more personnel to the Festival than to “the World Series or the President of the United States when he visits Michigan.” Deputy Chief Mike Jaafar wrote the WCSO's Operation Plan (“Plan”) for the Festival. The Plan explained the WCSO's overall mission to provide “Wayne County citizens, festival patrons, organizers, [and] merchants with law enforcement presence and to ensure the safety of the public, and keep the peace in the event there is a disturbance.” The Plan noted that past festivals had attracted Christian evangelical groups, including “a radical group calling themselves ‘The Bible Believers'.... These groups will possibly show up at the festival trying to provoke our staff in a negative manner and attempt to capture the negativity on video camera.” The plan emphasized that “[i]t's important to keep in mind that some individuals will attend this event solely to provoke trouble, however; professionalism, and even temperaments will prevail.”

Appellants arrived at the Festival around 5:00 p.m. on June 15, 2012; they entered at the western end, “near the area used for the children's tent and the carnivalrides.” ¹ As in 2011, the Bible Believers came bearing strongly worded t-shirts and banners:

[Chavez] wore a t-shirt with the message, “Fear God” on the front and “Trust Jesus, Repent and Believe in Jesus” on the back. Fisher wore a t-shirt with the message, “Trust Jesus” on the front and “Fear God and Give Him Glory” on the back, and he carried a banner that said on one side, “Only Jesus Christ Can Save You From Sin and Hell,” and on the other side it said, “Jesus Is the Judge, Therefore, Repent, Be Converted That Your Sins May Be Blotted Out.” Other messages conveyed on t-shirts, signs, or banners displayed by the [other Bible Believers] included, among others, “Fear God,” “Trust Jesus, Repent and Believe in Jesus,” “Prepare to Meet Thy God–Amos 4:12,” “Obey God, Repent,” “Turn or Burn,” “Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers,” and “Islam Is A Religion of Blood and Murder.”

One Bible Believer carried a severed pig's head on a stick, which Chavez explained protected the Bible Believers by repelling observers who feared it. Appellants soon began preaching using a megaphone, and a small crowd formed around them almost immediately. Chavez castigated the crowd for following a “pedophile” prophet and warned of God's impending judgment. As this evangelizing continued, the crowd yelled back. At this point, a ribbon-cutting at the opposite end of the Festival occupied a majority of the WSCO officers, but one officer watched from the outskirts of the crowd.

After roughly ten minutes, unidentified people started separating other Festival-goers from the Bible Believers, and the crowd temporarily thinned. About fifteen minutes after the Bible Believers entered the Festival, an officer approached them, told Chavez that Dearborn had an ordinance prohibiting the use of a megaphone, and warned the Bible Believers not to use it anymore....