Center for Bio-Ethical v. City of Springboro

• Decision Date: 20 February 2007
• Docket Number: No. 06-3284.,06-3284.
• Citation: 477 F.3d 807
• Parties: CENTER FOR BIO-ETHICAL REFORM, INC., et al., Plaintiffs-Appellants, v. CITY OF SPRINGBORO, A Municipal Entity; Jeffrey Kruithoff; Tim Parker; Clearcreek Township, A Municipal Entity; Peter Herdt; Jeff Piper; Brian Hubbard; Eric Kuhlman; Nick Clark; Randy Peagler; Lisa Walsh; Steven Morris; Michael Burke; Tim Shaw, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

477 F.3d 807

CENTER FOR BIO-ETHICAL REFORM, INC., et al., Plaintiffs-Appellants, v. CITY OF SPRINGBORO, A Municipal Entity; Jeffrey Kruithoff; Tim Parker; Clearcreek Township, A Municipal Entity; Peter Herdt; Jeff Piper; Brian Hubbard; Eric Kuhlman; Nick Clark; Randy Peagler; Lisa Walsh; Steven Morris; Michael Burke; Tim Shaw, Defendants-Appellees.

No. 06-3284.

United States Court of Appeals, Sixth Circuit.

Argued: December 5, 2006.

Decided and Filed: February 20, 2007.

ARGUED: Robert Joseph Muise, Thomas More Law Center, Ann Arbor, Michigan, for Appellants. Mark D. Landes, Isaac, Brant, Ledman & Teetor, Columbus, Ohio, Boyd W. Gentry, Surdyk, Dowd & Turner Co., Dayton, Ohio, Benjamin C. Glassman, United States Attorney, Cincinnati, Ohio, for Appellees. ON

BRIEF: Robert Joseph Muise, Thomas More Law Center, Ann Arbor, Michigan, for Appellants. Mark D. Landes, J. Eric Holloway, Isaac, Brant, Ledman & Teetor, Columbus, Ohio, Boyd W. Gentry, Jeffrey C. Turner, Surdyk, Dowd & Turner Co., Dayton, Ohio, Benjamin C. Glassman, United States Attorney, Cincinnati, Ohio, for Appellees.

Before MOORE and CLAY, Circuit Judges; BELL, Chief District Judge.^*

OPINION

CLAY, Circuit Judge.

Plaintiffs, Center for Bio-Ethical Reform, Inc., Mark Harrington, Quentin Patch, and Dale Henkel, appeal from the district court's grunt of summary judgment to Defendants on their claims under 42 U.S.C. § 1983 that Defendants¹ violated their constitutional rights under the First, Fourth, and Fourteenth Amendments to the U.S. Constitution, and conspired to violate those rights. For the reasons that follow, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Plaintiff Center for Bio-Ethical Reform, Inc. ("CBR") is a pro-life public policy and advocacy group incorporated as a non-profit § 501(c)(3) organization in California. Among other things, CBR engages in self-described educational programs to promote their cause. Through one of these educational programs — the "Reproductive Choice Campaign" — CBR, its employees, and volunteers drive box trucks on "the streets and highways of major cities and towns throughout the United States," and these trucks display "large, colorful pictures depicting graphic images of first-term aborted fetuses." (J.A. at 75-76) These pictures often included the caption "Choice," as well as CBR's contact information. Plaintiffs Mark Harrington ("Harrington"), Quentin Patch ("Patch"), and Dale Henkel ("Henkel") were all employees and volunteers who participated in the Campaign, either by driving the box trucks themselves or by driving an escort vehicle along with the trucks.

On June 10, 2002, Plaintiffs were driving these box trucks on the streets and highways of the greater Dayton, Ohio area. That day, Varrington and Patch each drove one of the box trucks, while Henkel followed in the escort vehicle.² Harrington and Patch each wore protective body armor. In addition to the body armor, the drivers sometimes wore helmets and, on that day, Patch wore such a helmet. The escort vehicle was a black Crown Victoria equipped with a video camera mounted on the dashboard and a cage behind the driver's seat. The vehicle had a shotgun rack, radio communication equipment, amber lights in the back, and antennae on the roof and trunk. All three vehicles contained mace, which Plaintiffs stored in a plastic bin and kept on hand to be used defensively "in case someone approaches the truck and threatens" them. (J.A. at 285) The vehicles were further equipped with a radio system so the drivers could communicate with one another.

That day, Plaintiffs began driving the trucks across several counties near Dayton, Ohio before 10:00 a.m. Around 4:00 p.m., they decided to park the vehicles for the night.³ On the day in question, CBR had permission to park the trucks at the Hinkle farm on Pennyroyal Road. Ron Bowling ("Bowling"), a CBR supporter, met Plaintiffs at the Hinkle farm to identify the location for them. When Plaintiffs arrived at the farm, they encountered a long driveway on the crest of a hill which Harrington described as going "up and down into kind of a gully," and grew concerned about navigating the trucks down the driveway. (J.A. at 286) Harrington and Patch pulled the box trucks to the side of the road, remaining stopped there for two to three minutes, while Henkel drove the escort car down the driveway to evaluate the situation. After Henkel had assessed the situation, Harrington drove down the driveway and Patch began to follow him in the second truck. Midway down the driveway, Harrington realized that the truck would not clear the tree branches and stopped. At that point, Patch radioed Harrington to inform him that a police officer had stopped him for questioning.

Officer Nick Clark ("Clark") reported turning down Pennyroyal Road that day and observing a six- to ten-vehicle backup near the intersection at Deer Trail Road. He watched as Henkel maneuvered the escort vehicle around the trucks to pull into the Hinkle driveway, crossing a double yellow line at the top of a hill to do so. Subsequently, Clark reported that several vehicles in the line behind the trucks began to drive around them atop the hill as well. After observing these events, Clark pulled behind the truck driven by Patch and put his lights on, thereby blocking Patch into the driveway. As Clark approached the driver's side of the truck, he saw Patch wearing a helmet and body armor, and radioing that the police had stopped him.

Clark asked Patch if the trucks were lost or needed assistance, and several times asked whether he was carrying cargo in the truck. Patch responded in the negative to both questions, describing the trucks as "billboard trucks." (J.A. at 260) Patch testified that he told Clark "We're campaigning against abortion. The signs are about anti-abortion information." (J.A. at 421) Clark acknowledged realizing at some point that the pictures were expressing a message about abortion. Clark also indicated he did not ask Patch whether he had weapons, nor did he ascertain Patch's purpose for being at that particular location. On the basis of this brief encounter, Clark described Patch's behavior as "extremely nervous," explaining:

He was looking around a lot. He was on the radio stating he was being approached by a police officer. He watched me the entire time in his side view mirror that I approached the truck. . . . That's not every day that I stop someone and they get on the radio and say they're being approached by the police, no. That's not typical behavior of a normal traffic stop.

(J.A. at 261) Ultimately, Clark did not inquire into the purpose of Patch's protective gear at the time of this initial encounter but, concerned about his own safety and perceiving Patch to be better protected, retreated to his vehicle and pulled away.

Clark then contacted Lieutenant Barton to determine whether Plaintiffs were participating in some sort of government exercise. Barton responded in the negative. At Barton's direction, Clark next contacted Detective Tim Parker ("Parker"), speaking briefly to the department dispatcher before reaching Parker. Clark described the encounter to Parker, telling him that he witnessed the escort vehicle — which he described as resembling an "unmarked police car or a law enforcement vehicle" — pass the truck crossing the double yellow lines, and that the truck's driver wore body armor and a helmet. (J.A. at 263) Clark also told Parker about the pictures on the sides of the trucks. Within five to ten minutes, Parker met Clark at the location of his police cruiser, on Deer Trail Road. Another officer, Lisa Walsh ("Walsh"), arrived on the scene shortly before Parker, having responded to a broadcast of the Springboro Police dispatcher. The dispatcher apparently misunderstood Clark's initial call and had erroneously announced that Plaintiffs had assault weapons, not merely that they wore assault gear. Upon learning of the mix up, Clark radioed dispatch and told them he had not observed assault weapons.

Next, Detective Parker contacted Steven Morris ("Morris"), Supervisory Special Agent of the Federal Bureau of Investigation ("FBI") Dayton Office. Parker described Clark's encounter with Plaintiffs and mentioned the pictures on the trucks. Purportedly concerned about domestic terrorism targeting abortion doctors and clinics, Morris told Parker he would "grab a couple of guys and . . . come by and . . . find out who these people were or what they were doing." (J.A. at 356) Morris apparently called the Dayton office and, in response to his request, Agents Robert Buzzard, James Howley, Tim Shaw, and Tymothy Burkey proceeded to the scene.⁴ According to Parker's account, the FBI requested that Parker prevent Plaintiffs from leaving.⁵

As the foregoing events unfolded, several other law enforcement officers arrived on the scene, including Detective Eric Kuhlman ("Kuhlman"), Sergeant Jeff Piper ("Piper"), and Officer Brian Hubbard ("Hubbard"). Parker testified that these officers responded to a dispatch made at his prompting to other local jurisdictions that described a stop of someone in SWAT gear, eliciting information about possible SWAT training exercises. Parker further deduced that the officers proceeded to the scene without specific direction.

In the meantime, Plaintiffs had identified a secondary location to park the trucks for the night (a local church's parking lot) and had completed covering the pictures on the sides of the trucks with tarps. More skilled at handling the trucks, Harrington backed the first truck out for Patch, they switched drivers, and Patch began heading toward the church. Two police cars followed Patch. Harrington then returned to the second truck, backed it out of the drive, and drove in the same direction as Patch. Henkel subsequently returned to the escort car and just before he turned out of the driveway, five police cars...