Clary v. City of Cape Girardeau
| Decision Date | 29 February 2016 |
| Docket Number | Case No. 1:14-CV-125-CEJ |
| Citation | 165 F.Supp.3d 808 |
| Parties | David Clary, Plaintiff, v. City of Cape Girardeau, Missouri and Matthew Peters, Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Anthony E. Rothert, Andrew J. McNulty, Jessie M. Steffan, American Civil Liberties Union of Missouri Foundation, Grant R. Doty, U.S. Equal Employment Opportunity Commission, St. Louis, MO, Gillian R. Wilcox, American Civil Liberties Union of Missouri, Kansas City, MO, for Plaintiff.
Albert M. Spradling III, Spradling & Spradling, Cape Girardeau, MO, for Defendants.
CAROL E. JACKSON
This matter is before the Court on the parties' cross-motions for summary judgment, pursuant to Fed. R. Civ. P. 56(a)
. The issues are fully briefed.
Plaintiff David Clary brings this action pursuant to 42 U.S.C. § 1983
, claiming that the defendants violated his First Amendment right to freedom of speech. The defendants are the City of Cape Girardeau, Missouri (the “City”) and Matthew Peters, one of the City's police officers, who is sued only in his individual capacity.
On the morning of August 30, 2013, plaintiff was driving his truck in the City when he made an illegal right turn at an intersection. Peters, who was in a marked police car, saw plaintiff make the illegal turn and decided to initiate a traffic stop. Peters turned on the police car's emergency lights, signaling plaintiff to pull over.
The parties dispute where the traffic stop occurred. According to defendants, plaintiff drove onto the parking lot of a battery store and the traffic stop occurred there. Plaintiff maintains that he pulled over on the public street adjacent to the battery store. Because it does not affect the outcome, the Court will assume that the stop occurred on a private parking lot.
After plaintiff stopped his truck, Peters parked his police car behind it. The parties also dispute whether Peters parked five feet from the rear of plaintiff's truck or a full car-length away. Regardless, neither party contends that the distance between the vehicles or between plaintiff and Peters was ever fifty feet or more. Once stopped, plaintiff and Peters exited their respective vehicles. Peters instructed plaintiff to get back into his truck, and plaintiff complied. Peters then approached and told plaintiff that he was being stopped for making an illegal right turn.
In response to Peters' request, plaintiff produced his driver's license and vehicle registration, both of which were valid. Peters returned to the police car where he verified plaintiff's documentation and prepared a citation and a summons for the illegal right turn. When Peters returned to the truck, he told plaintiff that a citation was being issued for the traffic violation. He also told plaintiff that he could either plead guilty by mail and pay a fine or dispute the citation by appearing in court on the date listed on the summons. Plaintiff signed the citation and acknowledged receipt of the summons.
Plaintiff then told Peters that he intended to appear in court to challenge the citation, because it was “crap.” He also said that the citation was “bullshit” and called Peters a “dick.” Peters responded, “I'm sorry.” Plaintiff then again called Peters a “dick.” Peters asked plaintiff why he had said that, and plaintiff replied to the effect that Peters had been a “dick” from the moment he first exited the police car. Peters handed plaintiff the citation, told plaintiff to “drive safely” and to “have a nice day,” and walked back to his police car.
After Peters walked back to his police car, plaintiff told him to “go fuck” himself. When Peters asked plaintiff what he had said, plaintiff replied, “fuck off.” The parties disagree about whether or not plaintiff yelled the profanity. Because it does not affect the outcome, the Court will accept defendants' contention that he did. According to defendants, after plaintiff began yelling approximately ten people exited a pool store that was located across a four-lane street and more than 100 feet from the scene and watched the encounter. Defendants also contend that a man also exited the battery store and began watching. Plaintiff does not concede that anyone came out the pool store; he asserts that one person came out of the battery store only after he had stopped yelling.
In response to the profanity, Peters told plaintiff, “[I]f I can hear your voice over 50 feet, I'm going to take you to jail.” Pl. Dep. 14:19–20. Peters then reiterated his intention to arrest plaintiff if he continued to yell. Plaintiff responded that Peters should either “do it or shut the fuck up.” Peters then walked back to plaintiff's truck and told him to exit the vehicle. Plaintiff complied and was handcuffed. Plaintiff was arrested for violating § 17-157(a)(9) of the Cape Girardeau Code of Ordinances, not for the illegal right turn.
According to defendants, Peters arrested plaintiff because [Doc. # 22 at 5] However, despite the City's policy that an officer should record witnesses to a violation of the ordinance when those witnesses are identifiable, Peters did not do so. Peters did not interview or attempt to interview any witnesses or alleged victims either before or after the arrest. He spoke to the person who had exited the battery retailer, but only to obtain permission to leave plaintiff's truck on the parking lot while he took plaintiff to the police station.
Peters acknowledges that his only evidence that anyone was disturbed by plaintiff's conduct was the fact that people exited the two stores and watched the encounter. Peters Dep. 31:1–5 (). Peters testified in his deposition that had any of these individuals reported being disturbed by the profanity, then plaintiff would have been guilty of peace disturbance, which is covered by a different ordinance. Id. at 18:19–24. Peters further admitted that he would not normally obtain the names of witnesses or victims for “something like this,” because the “victim” is the “general population.” Id. at 19:3–17.
Plaintiff was taken to the police station where he was fingerprinted and photographed. He was detained there for approximately one hour.
After a bench trial in the City's municipal court, plaintiff was found guilty of making an illegal right turn for which he was assessed a fine and court costs. He was found not guilty of violating Ordinance 17-157(a)(9).
Ordinance § 17-157 prohibits certain categories of noise-producing activity, such as broadcasting electronically amplified music at night without a permit in a residential area. The parties agree that no court in Missouri has ever had cause to interpret § 17-157. The plaintiff was charged and acquitted of violating § 17-157(a)(9) (the “Ordinance”), which provides as follows:
Cape Girardeau Code of Ordinances § 17-157(a)(9).
Unlike other sections of § 17-157, subsection (a)(9) does not specify at what distance from the source of the yelling, shouting, hooting, whistling, or singing a sound must be audible to constitute a violation. Further, the Ordinance does not define “yelling,” “shouting,” “hooting,” “whistling,” “singing,” “annoy,” “disturb,” “quiet,” “comfort,” “repose,” or “vicinity.” Defendants contend that the only two factors that determine whether a person has committed a violation are: (1) the “level of [that person's] voice” and (2) whether that sound “disturb[s]” “[s]omeone in [a] business.” [Doc. # 22 at 5] Nevertheless, defendants concede that the Ordinance plainly forbids “annoy [ing]” or “disturb[ing]” anyone in any “dwelling, hotel or other type of residence” or “annoy[ing]” or “disturb[ing]” “any persons in the vicinity[.]”
The City has an unwritten policy that its police officers have “discretion to decide” based on their “common sense” whether a person's yelling, shouting, hooting, whistling, or singing is violative of the Ordinance. Barker Dep. 10:14–16, 12:15–18. Further, the City interprets the Ordinance to mean that an individual may be guilty of a violation even in the absence of a non-officer complainant. Id. at 10:6–16. That is to say, a police officer can be the complainant if the officer is himself annoyed or disturbed by a person's yelling, shouting, hooting, whistling, or singing, provided that the officer can hear the sound at a distance of at least fifty feet. Id. at 22:4–10.
Peters interprets the Ordinance to mean that he may arrest someone for yelling, shouting, hooting, whistling, or singing that “disturb[s] [a] business [ ],” even if the businessperson who is disturbed is a mere five feet from the source of the sound. Peters Dep. 21:11–25, 24:4–10. By way of example, though Peters' common sense tells him that “normal speech” “probably” would not disturb a business, he believes that a person yelling political slogans in favor of a particular candidate for office would be guilty of violating the...
To continue reading
Request your trial
-
Langford v. City of St. Louis
...of the Ordinance is "distinct from a policy of limited enforcement or prosecutorial discretion." Clary v. City of Cape Girardeau, Mo. , 165 F.Supp.3d 808, 817 (E.D. Mo. 2016). "[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige ." Uni......
-
Our Lady's Inn v. City of St. Louis
...interest in the enforcement of a regulation that contravenes the Constitution or Missouri law. See Clary v. City of Cape Girardeau , 165 F.Supp.3d 808, 831–32 (E.D. Mo. 2016). Third, Plaintiffs have succeeded on their as applied challenge to the Ordinance. Finally, "it is always in the publ......
-
Fernandez v. St. Louis Cnty.
...100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) ; Fields v. City of Omaha , 810 F.2d 830, 834 (8th Cir. 1987) ; Clary v. City of Cape Girardeau , 165 F.Supp.3d 808, 830 (E.D. Mo. 2016). "The basic purpose of § 1983 damages is to compensate persons for injuries that are caused by the deprivation of co......
-
Hoyland v. McMenomy
...right to free speech would chill a person of ordinary firmness from exercising that right in the future." Clary v. City of Cape Girardeau , 165 F.Supp.3d 808, 826 (E.D. Mo. 2016) (citing Peterson , 754 F.3d at 602 ).C. Causal Connection Under the third part of the test, "a plaintiff must sh......