Brandt v. City of Westminster

• Decision Date: 19 March 2018
• Docket Number: Civil Action No. 16–cv–1356–WJM–CBS
• Citation: 300 F.Supp.3d 1259
• Parties: Eric BRANDT, Plaintiff, v. The CITY OF WESTMINSTER, Colorado, municipality; Charles Rush, in his official and individual capacity; Ray Esslinger, in his official and individual capacity; Defendants.
• Court: U.S. District Court — District of Colorado

300 F.Supp.3d 1259

Eric BRANDT, Plaintiff,

v.The CITY OF WESTMINSTER, Colorado, municipality; Charles Rush, in his official and individual capacity; Ray Esslinger, in his official and individual capacity; Defendants.

Civil Action No. 16–cv–1356–WJM–CBS

United States District Court, D. Colorado.

Signed March 19, 2018

David Arthur Lane, Andrew Joseph McNulty, Killmer, Lane & Newman, LLP, Denver, CO, for Plaintiff.

Courtney B. Kramer, Thomas Sullivan Rice, Senter Goldfarb & Rice, LLC, Denver, CO, for Defendants.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

William J. Martínez, United States District JudgeNow before the Court in this civil rights case are the parties' cross-motions for summary judgment, including Plaintiff's Motion for Summary Judgment(ECF No. 37) and Defendants' Combined Motion for Summary Judgment(ECF No. 39).As explained below, Defendants' Motion is granted in part, and Plaintiff's Motion is denied.

I.LEGAL STANDARD

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(c);Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986);Henderson v. Inter–Chem Coal Co., Inc. , 41 F.3d 567, 569(10th Cir.1994).Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law.Anderson v. Liberty Lobby , 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986);Stone v. Autoliv ASP, Inc. , 210 F.3d 1132(10th Cir.2000).A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party.Anderson , 477 U.S. at 248, 106 S.Ct. 2505.In ruling on summary judgment, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial.Houston v. Nat'l Gen. Ins. Co. , 817 F.2d 83, 85(10th Cir.1987).

II.BACKGROUND

The following facts are undisputed unless attributed otherwise.

On the morning June 6, 2014, PlaintiffEric Brandt("Brandt") was walking along sidewalks in Westminster, Colorado, displaying a sign which he describes as "a gigantic Styrofoam middle finger emblazoned with the letters ‘Fuck cops.’ "(ECF No. 37 at 7 ¶¶ 32–34;ECF No. 47at 6–7, ¶¶ 32–34;ECFNo. 37–5at 4–5.)¹This behavior was in keeping with Brandt's conduct on numerous other occasions; as pled in Brandt's Complaint, "wherever Mr. Brandt goes in Westminster, he carries a very large, handmade sign that reads ‘Fuck Cops.’ "(ECF No. 1 ¶ 12.)According to Brandt, he does this to protest police misconduct, and particularly misconduct by the Westminster Police Department("WPD").

On the morning in question, for approximately 30 minutes after leaving his apartment, Brandt was, in his words, "engaging the public" with his sign.(ECFNo. 37–5at 4, 13.)Some members of the public, however, were less than thrilled.According to WPD records, at least three separate callers reported Mr. Brandt to the police.As reflected in WPD's report (ECFNo. 37–3) and in the audio recording of calls to WPD and WPD dispatch communications (seeECF Nos. 38, 40, 37–4), several civilians reported Brandt's sign and conduct as "offensive,""disgusting," and in similar terms.

The lead investigating officer responsible for taking statements from these complaining witnesses was non-party Officer William Carnes.(ECF No. 39at 5, ¶ 10.)Based on the calls and complaints received, WPD dispatched Sergeant Raymond Esslinger and Officer Charles Rush, both Defendants here.Sergeant Esslinger, who knew Brandt from prior interactions, first contacted Brandt at the intersection of 76th Avenue and Sheridan Boulevard at approximately 8:38 a.m., and Officer Rush arrived a few minutes later.(SeeECFNo. 37–3at 7.)

While Sergeant Esslinger and Officer Rush were speaking with Brandt, Officer Carnes took statements from the complaining witnesses.(ECF No. 39at 5, ¶ 10;ECF No. 43at 5, ¶ 10.)After he"learned through Officer Carnes that probable cause for the charge of Disorderly Conduct existed"(ECFNo. 37–3), Officer Rush served Brandt with a citation for disorderly conduct in violation of Westminster Municipal Code§ 6–2–1(A)(1).(Seeid. )Brandt protested being arrested and taken into custody, and requested that he instead be issued a summons to later appear.(SeeECFNo. 37–5at 14.)Esslinger and Rush agreed to this, after which, Brandt, in his own words, "boldly carried [his] sign down the street to [his] house."(Id. at 16.)In total, Brandt's interaction with Esslinger and Rush lasted approximately thirty minutes.(ECF No. 37at 3, ¶ 1;ECF No. 47at 3, ¶ 1.)²The disorderly conduct charge against Brandt was eventually dismissed.(ECF No. 39at 6, ¶ 19;ECF No. ECFNo. 37–5at 17.)

III.ANALYSIS

Brandt brings six claims against Defendants:

(I) a claim brought under 42 U.S.C. § 1983 for violation of his First Amendment right to free speech;

(II)a § 1983 claim for retaliation against Brandt for exercise of his First Amendment rights;

(III) a facial challenge that Section 6–2–1(A)(1) is unconstitutionally overbroad in violation of the First Amendment;

(IV) a facial challenge that Section 6–2–1(A)(1) is unconstitutionally void for vagueness, under the Fourteenth Amendment;

(V)a § 1983 claim for violation of Brandt's Fourth Amendment rights by way of an unlawful search and/or seizure; and,

(VI)a § 1983 claim for malicious prosecution in violation of the Fourteenth Amendment.

(ECF No. 1 ¶¶ 42–93.)

Defendants move for summary judgment against all of these claims, while Brandt affirmatively moves for summary judgment in his favor on his first, third, and fourth claims (i.e. , his facial and as-applied First Amendment claims, but not his claims for retaliation, violation of his Fourth Amendment rights, or malicious prosecution.)The Court addresses each of these claims in turn, but in a different sequence than as pled, given the interrelated analysis of the issues raised.

A. Brandt's Facial Challenges to Section 6–2–1(A)(1)

Brandt argues that Section 6–2–1(A)(1) is unconstitutional both because it is overbroad in violation of the First Amendment and void for vagueness in violation of the Fourteenth Amendment.The parties filed cross-motions for summary judgment on these claims, each side arguing it is entitled to judgment as a matter of law.

1.Standing

The Supreme Court has long recognized that a criminal defendant may bring a facial challenge against statute or ordinance under which he or she is charged, even if the statute would not be invalid as applied to his or her own conduct.SeeGooding v. Wilson , 405 U.S. 518 520–22, 92 S.Ct. 1103, 31 L.Ed.2d 408(1972) ("Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others * * * since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights."(quotingCoates v. City of Cincinnati , 402 U.S. 611, 619–20, 91 S.Ct. 1686, 29 L.Ed.2d 214(1971)(White, J., dissenting) );see alsoWard v. Utah , 321 F.3d 1263, 1266(10th Cir.2003)("the significance of First Amendment rights"..."justif[ies] a lessening of prudential limitations on standing.The mere threat of prosecution...may have a ‘chilling’ effect").

Likewise, a person charged with a speech-related crime may bring a § 1983 claim, even after criminal charges are dismissed.SeeWard , 321 F.3d at 1264.

In the First Amendment context, two types of injuries may confer Article III standing to seek prospective relief.First, a plaintiff generally has standing if he or she alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and there exists a credible threat of prosecution thereunder.Plaintiffs may have standing even if they have never been prosecuted or actively threatened with prosecution.Second, although allegations of a ‘subjective’ chill are not adequate, a First Amendmentplaintiff who faces a credible threat of future prosecution suffers from an ongoing injury resulting from the statute's chilling effect on his desire to exercise his First Amendment rights.

Id. at 1267(internal quotation marks and citations omitted).

On the facts and record here, the Court is satisfied that Brandt has a demonstrated intention to engage in future speech or conduct essentially identical to that for which he was charged here, that he faces a credible threat of future prosecution for such conduct, that this threat is "real and immediate" for standing purposes, and that Brandt has sufficiently demonstrated "continuing, present adverse effects in the form of the chilling of his First Amendment rights."Seeid. at 1269.

2.Overbreadth

a. Legal Framework

"The First Amendment provides that ‘Congress shall make no law...abridging the freedom of speech.’ "United States v. Stevens , 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435(2010).Thus, "[a]s a general matter...[the] government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."Id.(internal quotation marks omitted).Because Section 6–2–1(A)(1) of the Westminster Municipal Code regulates speech based on content, the Court starts by viewing that restriction as "presumptively invalid," and Defendants bear the burden of rebutting that presumption.Stevens , 559 U.S. at 468, 130 S.Ct. 1577(citingUnited States v. Playboy Enter. Grp., Inc. , 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865(2000) ).

However, the First Amendment does "permi[t] restrictions upon the content of speech in a...