Bischoff v. Florida, 6:98CV583-ORL-28JGG.

Citation242 F.Supp.2d 1226
Decision Date03 January 2003
Docket NumberNo. 6:98CV583-ORL-28JGG.,6:98CV583-ORL-28JGG.
PartiesCheryl BISCHOFF, Vicky Stites, Seth Spangle, Plaintiffs, v. State of FLORIDA, Robert Butterworth, in his official capacity as Attorney General of the State of Florida, Sheriff Charles C. Aycock, in his Official Capacity, Defendants.
CourtU.S. District Court — Middle District of Florida

Brian Fahling, Bryan J. Brown, American Family Association Law Center, Tupelo, MS, Heidi Wolff Isenhardt, Law Office of Heidi Wolff Isenhart, Winter Park, FL, for Cheryl Bischoff, Vicky Stites, Seth Spangle.

D. Andrew DeBevoise, Kathleen Ann Meagher Krak, DeBevoise & Poulton, P.A., Winter Park, FL, for Charles C. Aycock.

Alison L. Becker, Office of the Attorney General, Civil Litigation Div., Tampa, FL, Jeffrey F. Mahl, Attorney General's Office, West Palm Beach, FL, for Robert A. Butterworth.

Alison L. Becker, Office of the Attorney General, Civil Litigation Div., Tampa, FL, Jeffrey F. Mahl, Attorney General's Office, West Palm Beach, FL, for State of Florida.


ANTOON, District Judge.

This cause is before the Court on Defendant Sheriff Aycock's Motion to Dismiss against Plaintiffs Cheryl Bischoff, Vicky Stites and Seth Spangle (Doc. 79, filed January 9, 2002); and Defendant Robert Butterworth's ("Mr. Butterworth") Motion to Dismiss against Plaintiffs. (Doc. 81, filed January 29, 2002). The United States Magistrate Judge has submitted a Report and Recommendation (Doc. 100, filed September 19, 2002) providing that both Defendant Aycock's and Defendant Butterworth's Motion to Dismiss against Plaintiff be denied.

After an independent review of the record in this matter, including the Objections filed by all Defendants (Doc. 102, filed October 3, 2002 and Doc. 103, filed October 7, 2002) and the response filed by Plaintiffs (Doc. 105 filed October 22, 2002), the Court agrees with the findings of fact and conclusions of law in the Report and Recommendation.

I. Procedural History

On December 29, 1997 religious activists gathered at the heavily trafficked intersection of Irlo Bronson Memorial Highway and Old Vineland Road in Osceola County, Florida for a demonstration. The activists were protesting Walt Disney's alleged support of homosexuality. The demonstrators carried signs and distributed handbills that articulated their criticism of Walt Disney's policies. In response to the demonstration, the Osceola County Sheriffs Deputies arrested three of the protesters, Phillip Benham ("Mr. Benham"), Matthew Bowman ("Mr. Bowman") and Seth Spangle ("Mr. Spangle"). They were each charged with violating section 316.2045(2), Florida Statutes, for obstruction of traffic without a permit and section 316.2055 for throwing advertising material into vehicles.

Cheryl Bischoff ("Ms. Bischoff) and Vicky Stites ("Ms. Stites") were among the activists protesting against Walt Disney.

On May 18, 1998 both Ms. Bischoff and Ms. Stites filed the instant action alleging that sections 316.2045 and 316.2055 were unconstitutional, both on their face and as applied to Plaintiffs.

Initially, this case was assigned to the Honorable Judge G. Kendall Sharp who dismissed the entire case because the Plaintiffs could not establish that they suffered an actual or threatened injury and therefore did not have standing to bring an as-applied challenge to the statute. With regard to the facial challenges, Judge Sharp declared the contested Florida Statutes constitutional and denied all outstanding motions as moot. (Doc. 48). However, on appeal the Eleventh Circuit reversed and remanded Judge Sharp's decision, ordering this court "to either hold an evidentiary hearing on the issue of standing or consider the merits of Plaintiffs as applied challenge." Bischoff v. Osceola County, Fla., 222 F.3d 874, 876 (11th Cir.2000). According to the Eleventh Circuit, "the court erred in making findings of disputed facts and judgments regarding credibility, on which it then based its standing conclusion, without holding an evidentiary hearing." Bischoff, 222 F.3d at 885. Upon remand from the court of appeals, the case was reassigned to the undersigned United States district judge.

On February 7, 2001 Robert Butterworth ("Mr. Butterworth"), the Attorney General of the State of Florida, intervened as a Defendant (Doc. 60) and in late August Osceola County was dismissed from the case pursuant to agreement of the parties. (Doc. 72). A second amended complaint was filed on December 20, 2001 which added Mr. Spangle as a Plaintiff and substituted Sheriff Aycock for Sheriff Croft as a Defendant. (Doc. 76). Defendants filed a motion to dismiss the second amended complaint (Docs. 79 & 81) to which Plaintiffs responded in opposition. (Docs. 80 & 82). In addition, the Plaintiffs filed a motion to set their facial challenge for summary judgment briefing. (Doc. 82).

This court referred these motions to Magistrate Judge James G. Glazebrook for a Report and Recommendation. Since the parties offered evidence outside the pleadings, on August 2, 2002 the Magistrate Judge converted the motions to dismiss to motions for summary judgment. An evidentiary hearing was held on August 27, 2002 on the issue of standing as well as on the facial challenges to sections 316.2045 and 316.2055. At oral argument the parties conceded that Plaintiffs' as-applied challenges were not ripe for summary judgment and that no sovereign immunity or qualified immunity issues remained. (Doc. 98 at 283-89). A Report and Recommendation was filed by Magistrate Judge Glazebrook on September 19, 2002 recommending denial of defendant's motions to dismiss and further recommending that Plaintiffs be found to have standing to pursue their First Amendment challenges to sections 316.2045 and 316.2055. Most significantly, the Magistrate Judge recommended that the relevant statutes be found facially unconstitutional and declared invalid. The Defendants subsequently filed objections to the Report and Recommendation (Docs. 102 & 103) and the Plaintiffs filed a response (Doc. 105).

II. Defendants'Objections
A. The arrest of three protesters caused the termination of the demonstration.

The Defendants object to the Magistrate Judge's use of the word "disbanded" in the following sentence: "On December 29, 1997, the Osceola County Sheriffs Office disbanded an organized protest at the heavily-trafficked intersection of Irlo Bronson Memorial Highway and Old Vineland Road in unincorporated Osceola County, Florida." (Doc. 100 at 2) (emphasis added). According to the Defendants, the use of the word "disbanded" can be interpreted to mean that Sheriffs officers told or instructed protestors to leave the demonstration. The Defendants argue that there is no evidence in the record to suggest that any officer instructed a protestor to leave the area. Defendants however, do concede that the arrest of three of the protestors did result in the departure of other demonstrators. (Doc. 102 at 9).

The Court does not interpret the word "disbanded" in the Report and Recommendation to mean that the Sheriffs officers instructed the activists to leave the demonstration. However, the Court does interpret the Report and Recommendation to read that the December 29, 1997 demonstration was essentially disbanded by the arrest of three religious activists. Upon witnessing the arrest of three protesters the remaining activists feared the possibility of their own arrest and thus refrained from exercising their First Amendment right. The Magistrate Judge's Report and Recommendation does not in any way suggest that the Sheriffs officers instructed any demonstrators to leave. In fact, the Magistrate Judge explains that "Plaintiffs presented no evidence demonstrating that any Osceola County Deputy Sheriffs acted unprofessionally or in a manner inconsistent with their difficult responsibility of enforcing thousands of state and federal statutes." (Doc. 100 at 18 n. 8) Moreover, the interpretation of the word "disbanded" has no significance in the legal analysis of this case. This Court finds the use of the word "disbanded" in the Report and Recommendation to be proper and agrees with the Magistrate Judge's finding of fact.

B. The parties conceded at oral argument that no sovereign immunity or qualified immunity issues remained.

The State of Florida and Mr. Butterworth object to the Magistrate Judge's finding that Defendants conceded that there are no issues as to sovereign immunity or qualified immunity remaining in the case.1 It is clear from the transcript of the hearing that all Parties agreed that no sovereign immunity or qualified immunity issues remained:

The Court: Does the State of Florida say that it eould pass any statute no matter how strongly in violation of the U.S. Constitution and there could be no suit in federal court, but that the only federal review can occur after a full exhaustion of state remedies through the Florida Supreme Court and on the chance that the U.S. Supreme Court grants cert?

Ms. Becker 2: We understand that we have an obligation to defend the statute? ... So I was using this primarily to narrow the scope so that everybody understands the State of Florida and Attorney General are only in this case to defend that statute, but that if this broadens out to anything beyond that, that we can't be sued beyond that.

The Court: So you don't contest that the State of Florida can be sued in federal court to determine the federal constitutionality of statutes in a declaratory judgment context?

Ms. Becker: To the best of my knowledge, yes, your Honor, that's, yes, the state can come in for those purposes.

The Court: And it doesn't impair that there are nominal damages sought.

Ms. Becker: Well, the nominal damages cannot be sought against the state is what I'm getting at. So in other words, we can defend the statute, but that's it.

(Doc. 98 at 286-87). The Court then proceeded to inquire about qualified immunity:

The Court: All right. So...

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