Daubenmire v. City of Columbus

Decision Date06 November 2007
Docket NumberNo. 06-3461.,06-3461.
Citation507 F.3d 383
PartiesDavid E. DAUBENMIRE; Charles S. Spingola; Thomas R. Meyer, Plaintiffs-Appellants, v. CITY OF COLUMBUS; Michael Piccininni; Todd S. Bush; John Does One Through Five, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Thomas W. Condit, Cincinnati, Ohio, for Appellants. Paula Jennings Lloyd, Columbus City Attorney's Office, Columbus, Ohio, for Appellees. ON BRIEF: Thomas W. Condit, Cincinnati, Ohio, for Appellants. Paula Jennings Lloyd, Columbus City Attorney's Office, Columbus, Ohio, for Appellees.

Before: SILER, GIBBONS, and ROGERS, Circuit Judges.


SILER, Circuit Judge.

David Daubenmire, Thomas Meyer, and Charles Spingola (collectively, "Plaintiffs") appeal from the district court's judgment dismissing their 42 U.S.C. § 1983 claims. Meyer and Spingola allege that the City of Columbus ("City"), Sergeant Michael Piccininni, and Officer Todd Bush1 (collectively, "Defendants") violated their First, Fourth, and Fourteenth Amendment rights in connection with their arrests and prosecution for open burning without a permit on June 23, 2001. Plaintiffs seek injunctive relief and a declaratory judgment against the City, stating that they desire to engage in ceremonial burning in the future, that their rights under the First and Fourteenth Amendments have been violated, and that the City's policies and practices regarding open burning permits are unconstitutional. They contend that the district court made the following errors: (1) holding that plaintiffs lacked standing to pursue their claims for prospective injunctive and declaratory relief; (2) finding that Meyer and Spingola are collaterally estopped from asserting their claims in connection with their 2001 arrests and prosecutions; and (3) disregarding the liberal pleading standard under Federal Rule of Civil Procedure 12(b)(6) when it concluded that Meyer and Spingola failed to allege a prima facie case of selective enforcement. We AFFIRM in part, REVERSE in part, and REMAND to the district court.


On June 23, 2001, Spingola and Meyer attended a "Gay Pride" parade in Columbus, Ohio to protest what they believe to be "the perverse celebration of the Homosexual lifestyle." During the parade, Spingola and Meyer burned a "rainbow flag" and were subsequently arrested by Sergeant Piccininni and Officer Bush. Plaintiffs were charged with open burning without a permit, in violation of Columbus City Code § 2501.985 and Ohio Fire Code ("O.F.C.") F-403, as incorporated into Title 25 of the Columbus City Code.

Spingola and Meyer moved to dismiss the charges against them, claiming that O.F.C. F-403 violates the First Amendment's prohibition on laws abridging freedom of speech. In defense of the City police officer's actions, prosecutors argued that "the City would have issued a permit for open burning ... had Spingola and Meyer merely applied for one." However the Franklin County Municipal Court held that O.F.C. F-403, "as applied to flag burning," was an unconstitutional intrusion upon their First Amendment right to free speech. City of Columbus v. Meyer, 152 Ohio App.3d 46, 786 N.E.2d 521, 524 (2003). The Ohio Court of Appeals reversed and reinstated the open burning charges. Id. at 530. The Ohio Supreme Court denied review.

During the appeal of their state court claims, Spingola and Meyer allege that they heard that Bill Buckel conducted an open burning without a permit and without any interference by City officials. Buckel had applied for an open burning permit in order to burn voter registration forms on a City sidewalk in front of the Ohio Secretary of State's office, but allegedly received a letter from the City's Director of Public Service stating that the City would not issue permits for an open burn in a public right of way. Although Buckel's request was denied, he proceeded with his demonstration. Plaintiffs infer that Buckel was allowed to conduct his open burning without a permit because the City officials were indifferent regarding the content of Buckel's message. In contrast, Plaintiffs assert that they were arrested "because City officials are sympathetic to the Homosexual rights movement and hostile to [Plaintiffs], whose message greatly irritates and offends the Homosexual community."

On remand to the Franklin County Municipal Court, Spingola and Meyer entered pleas of no-contest and were found guilty of open burning without a permit. They claim they had "no incentive to litigate their selective prosecution/equal protection claims" because they faced a possible six-month jail sentence and the trial judge made a pretrial ruling that prevented them from presenting evidence of selective prosecution.

A. Additional Facts Relevant to Spingola in 2004

In 2004, Spingola once again planned to attend the annual "Gay Pride" parade in Columbus and to burn a "rainbow flag" in protest of the event. He alleges that he had multiple contacts with City and state offices in an effort to obtain an open burn permit for at least three weeks prior to the June 26 parade. As of June 23, 2004, however, Spingola had not received approval from the City. Spingola submitted another application. The City finally issued Spingola an open burn permit less than twenty-four hours before the parade, but only did so after Spingola's attorney contacted the City Prosecutor's office to inquire why a burn permit had not yet been issued to Spingola and threatened litigation if the City denied the permit application. Spingola alleges that "he still faced intimidation from the City when one of its police officers approached him ... and threatened [him] with arrest if he did not begin his burn demonstration right at 1:00 p.m." even though his burn application allowed him to wait until 1:30 p.m. However, Spingola was not arrested.

B. Additional Facts Relevant to Daubenmire in 2004

Daubenmire is the founder of "Pass the Salt Ministries," a Christian organization "devoted to upholding Christian Values in American Culture." In July 2004, he applied to the City for open burning permits for two ceremonial burnings: (1) the burning of the Koran and the "rainbow flag" at City Hall on July 19, 2004; and (2) the burning of several United States Supreme Court decisions, "viewed by Christians as undermining Biblical morality and giving constitutional protection to sinful behavior," outside of the federal courthouse on July 23, 2004. When Daubenmire received no reply from the City, he assumed that his burn applications had been approved.

Before Daubenmire began his July 19 burning, however, the ceremonial site was "surrounded and monitored by dozens of City police officers, creating an environment of great intimidation for the peaceful assembly of Christians." A City official informed Daubenmire that his permit had been denied and the official threatened to arrest anyone who conducted an open burning. Daubenmire consequently cancelled the demonstration.

On July 20, Daubenmire and one or more other Christian leaders met with City officials to challenge the denial of the burn permit. According to Daubenmire, "At least one City official indicated that a permit had not been issued to [him] because of the content of what was being burned (i.e., the Koran), suggesting that the City did not want to damage its good relations with the Muslim community." The Christian leaders responded by threatening a press conference "to expose to the community the expense incurred by the City for its massive police presence to monitor peaceful Christians" during their demonstration. The City agreed to issue burn permits for July 22 and 23, although Daubenmire had to reapply for the permits, which each had a twenty-minute time limit.

On July 22, the ceremonial burning took place "without incident." However, on July 23, before the procession of protestors arrived at the federal courthouse where the Supreme Court cases were to be burned, City officials informed the Christian leaders that the burn permit had expired. Some of the demonstrators returned to City Hall, where one Christian leader burned the Court decisions and was arrested.

C. Procedural History

In November 2004, Plaintiffs filed the present suit in federal court asserting three causes of action under § 1983:(1) Meyer and Spingola allege that defendants violated their First, Fourth, and Fourteenth Amendment rights in connection with their arrests and prosecution for open burning without a permit on June 23, 2001; (2) Plaintiffs seek injunctive relief against the City so they may engage in future ceremonial burning; and (3) Plaintiffs seek a declaratory judgment against the City, claiming that their First and Fourteenth Amendments rights have been violated and that the City's policies and practices regarding open burning permits are unconstitutional.

Defendants filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted Defendants' motions, holding that Meyer and Spingola were collaterally estopped from asserting their first cause of action and, furthermore, that they failed to allege a prima facie case of selective enforcement. Daubenmire v. City of Columbus, 452 F.Supp.2d 794, 804-10 (S.D.Ohio 2006). The court dismissed Plaintiffs' second cause of action, concluding that they lacked standing to sue for injunctive relief. Id. at 811-12. Finally, the court concluded that it would not exercise its discretionary jurisdiction under 28 U.S.C. § 2201 to determine whether the City violated Plaintiffs' First and Fourteenth Amendment rights. Id. at 812.


We review de novo an order dismissing a complaint under Rule 12(b)(6) for failure to state a claim for relief. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir.1998). We must "construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff can...

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