Copper v. City of Fargo, Civ. No. A3-93-130.
| Decision Date | 30 December 1994 |
| Docket Number | Civ. No. A3-93-130. |
| Citation | 905 F. Supp. 680 |
| Parties | Gilbert COPPER and Adele Norberg, Plaintiffs, v. CITY OF FARGO, Sherri Arnold, and Kevin Niemann, Defendants. |
| Court | U.S. District Court — District of South Dakota |
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Thomas W. Condit, Condit & Dressing Co., LPA, Cincinnati, OH, Peter B. Crary, Fargo, ND, for plaintiffs.
Mike Miller, Solberg, Stewart, Miller, Johnson & Noack, Fargo, ND, for defendants.
On August 18, 1993, plaintiffs Gilbert Copper and Adele Norberg filed this civil action against defendants Officer Sherri Arnold, Officer Kevin Niemann and the City of Fargo seeking redress for alleged violations arising out of the unconstitutional enforcement of Fargo Municipal Code § 10-0802. Plaintiffs' complaint sets forth four causes of action based on federal constitutional and state law theories. Pending before the court are defendants' motion for summary judgment, defendants' request for an oral hearing on their motion for summary judgment, plaintiffs' motion for partial summary judgment, plaintiffs' motion for oral argument on the pending motions, and plaintiffs' motion for leave to file a reply to defendants' motion for summary judgment.
Prior to August 20, 1991, the City of Fargo enacted a residential picketing ordinance which provided as follows:
Fargo Municipal Code § 10-0801 and § 10-0802 (1985) (amended Feb. 1, 1993). This ordinance is similar to an ordinance enacted in Brookfield, Wisconsin. The Brookfield ordinance, which was upheld by the United States Supreme Court in Frisby v. Schultz, contains a flat ban on targeted residential picketing, providing: "It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield." Frisby v. Schultz, 487 U.S. 474, 477, 108 S.Ct. 2495, 2498, 101 L.Ed.2d 420 (1988).
On August 20, 1991, plaintiffs participated in a public pro-life demonstration in the residential neighborhood of Lynn Gifford, spokesperson for the Women's Health Organization.1 Copper, Norberg, and four other individuals walked back and forth on public sidewalks and streets carrying signs or enlarged photographs of fetuses. Plaintiffs contend that Copper's picketing route "started at the corner of Fourth Street and Seventh Avenue South, and then proceeded on an `L-shaped' route east on Seventh Avenue South and north on Third Street North, then back on the opposite sides of those two streets, covering an area estimated by Copper to be ¼ mile in length." (Pls.' Statement of Material Facts at 2). Norberg's picketing route was allegedly limited to walking east and west on Seventh Avenue South between Third Street South and Fourth Street South or north and south on Third Street South between Sixth Avenue South and Seventh Avenue South. (Id. at 3; Defs.' Statement of Material Facts at 2). Plaintiffs assert that they did not block or impede any person's access to or from private property and that they remained silent during their picketing activities except when approached by others. (Pls.' Statement of Material Facts at 2). Plaintiffs also allege that they made no more than momentary stops in front of any particular residence until their encounter with Marty Stutlien. (Pls.Compl. at 4).
While plaintiffs were demonstrating, Marty Stutlien, who lives at 725 Third Street South in the same apartment complex as Lynn Gifford, interrupted the picketing. Stutlien told the picketers to leave, yelled at them, tore up some of their placards and allegedly assaulted a juvenile picketer and ripped his shirt. (Defs.' Statement of Material Facts at 2; Copper Depo. at 89-96). Stutlien also allegedly sprayed water on the picketers from a water hose. (Id.).
Shortly after the confrontation between Stutlien and the picketers, Fargo Police Officers Kevin Niemann and Sherri Arnold arrived on the scene.2 They had been dispatched to Gifford's address with a report that a fight had occurred. (Depo. of Kevin Niemann, dated Apr. 19 & 20, 1994, at 9-10). As he was pulling up to the curb, Niemann observed about five people carrying pro-life signs standing on the sidewalk near Gifford's residence.3 (Id. at 10-11). After Niemann observed the picketers for no more than ten seconds, they "scurried" northbound on Third Street. (Id. at 11-12, 17). Niemann called them back and questioned them about the reported incident. (Id. at 12-13).4
Niemann testified that the picketers wanted him to arrest Stutlien for assaulting a juvenile. (Id. at 13). He allegedly explained that if the juvenile wanted to press charges against Stutlien, the juvenile must provide certain information, such as his full name, address, etc. (Id.) The juvenile refused to provide any information except to state that his name was "Gabriel." (Id. at 13-14). Niemann claims that the picketers eventually agreed not to press charges against Stutlien and to go home. (Id. at 14; Pls.' Mot. for Partial Summ.J., app. at 23). However, just as the picketers were about to disburse, Leo Castellano arrived and insisted that "Gabriel" pursue a criminal assault claim against Stutlien. (Depo. of Kevin Niemann, dated Apr. 19 & 20, 1994, at 14-16; Pls.' Mot. for Partial Summ.J., app. at 23). Niemann testified that he explained to Castellano why he could not arrest Stutlien, but Castellano insisted that Niemann arrest Stutlien immediately or the picketers would not leave the area. (Depo. of Kevin Niemann, dated Apr. 19 & 20, 1994, at 16). Niemann allegedly asked the picketers to leave, but they refused.
Copper testified that he informed Niemann of his belief that according to a United States Supreme Court decision, he and the other demonstrators could legally picket in a residential area if they walked a certain distance, spaced themselves a certain distance apart and continually moved silently past a certain number of dwellings. (Depo. of Gilbert Copper, dated Apr. 20 & 21, 1994, at 101; Copper Aff. at 2). Copper also testified that he described the demonstrators' picketing route to Niemann and explained that the demonstrators were not illegally picketing.5 Niemann allegedly disagreed with Copper about the legality of plaintiffs' demonstration and informed Copper that the picketers would be arrested if they did not leave the neighborhood. (Copper Aff. at 2). "After considering his options, Copper decided to continue picketing." (Pls. Statement of Material Facts at 4).
Niemann arrested the picketers, including plaintiffs, for picketing a private residence. Copper and Norberg contend that defendant Arnold acted in concert with and as a backup to Officer Niemann when he arrested the picketers. (Copper Aff. at 2; Norberg Aff. at 5). The City of Fargo filed charges in Cass County District Court against plaintiffs for violating Fargo Municipal Code § 10-0802. On February 18, 1992, the Honorable Frank L. Racek dismissed the charges against plaintiffs, ruling that the picketing ordinance was constitutional on its face, but unconstitutional as applied to Copper, Norberg, and the other picketers who demonstrated near the Gifford residence on August 20, 1991. Plaintiffs then filed this action seeking redress for the allegedly unconstitutional enforcement of Fargo's residential picketing ordinance.
On August 15, 1994, plaintiffs filed a motion for leave to file an answer brief in response to defendants' motion for summary judgment. Since defendants did not resist this motion and since the court may find plaintiffs' brief helpful, the court will grant plaintiffs' request.
Summary judgment is appropriate 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.Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "A dispute is genuine when `the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Westchem Agr. Chemicals, Inc. v. Ford Motor Co., 990 F.2d 426, 429 (8th Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of summary judgment ... against a party failing to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The court considering a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party who enjoys "the benefit of all reasonable inferences to be drawn from the facts." Vacca v. Viacom Broadcasting of Missouri, Inc. et al., 875 F.2d 1337, 1339 (8th Cir.1989) (citation omitted). Summary judgment is improper if the court finds a genuine issue of material fact; however, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment...." Commercial Union Insurance Co. v. Schmidt, 967 F.2d 270, 271-72 (8th Cir.1992) (citation omitted). The issue is whether the evidence submitted presents a sufficient...
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