Habiger v. City of Fargo

• Decision Date: 04 April 1996
• Docket Number: No. 95-1574,95-1574
• Citation: 80 F.3d 289
• Parties: David HABIGER, Plaintiff-Appellant, v. CITY OF FARGO; Ann Alzheimer, in her official capacity and as an individual; Mike Kjera, in his official capacity and as an individual; Scott Stenerson, in his official capacity and as an individual; Don Lawyer, in his official capacity and as an individual; Mark Lykken, in his official capacity and as an individual, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 289

80 F.3d 289

David HABIGER, Plaintiff-Appellant, v. CITY OF FARGO; Ann Alzheimer, in her official capacity and as an individual; Mike Kjera, in his official capacity and as an individual; Scott Stenerson, in his official capacity and as an individual; Don Lawyer, in his official capacity

and as an individual; Mark Lykken, in his official capacity

and as an individual, Defendants-Appellees.

No. 95-1574.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 18, 1995.

Decided April 4, 1996.

Appeal from the United States District Court for North Dakota; Karen Klein, Judge.

Thomas W. Strahan, Minneapolis, MN, argued (Richard D. Varriano, on brief), for appellant.

Mike Miller, Fargo, ND, argued, for appellee.

Before WHITE, ^* Associate Justice (Ret.), McMILLIAN and LOKEN, Circuit Judges.

WHITE, Associate Justice (Ret.).

I. INTRODUCTION

Plaintiff-Appellant David A. Habiger ("Habiger") appeals from the district court's entry of partial summary judgment and a jury verdict against him in his Section 1983 action brought in the wake of his arrest for violating a temporary restraining order ("TRO"). The district court rejected his unlawful arrest claim, ruling for the police officers on qualified immunity grounds and dismissing the claim against the City of Fargo ("the City") based on its alleged failure to train its police officers. Habiger v. City of Fargo, 905 F.Supp. 709 (D.N.D.1995). A jury then found that neither the City nor its officers were liable for using excessive force in arresting Habiger. Habiger now appeals, complaining that the district court erred in (1) granting summary judgment to the officers on qualified immunity grounds; (2) dismissing the illegal arrest/failure to train claim against the City; and (3) refusing to instruct the jury that it should consider the legality of the arrest in determining whether the officers' use of force in arresting Habiger was objectively reasonable. For the reasons stated below, we reject each of these claims of error, and AFFIRM the judgment of the district court.

II. BACKGROUND

A.

On October 28, 1991, a North Dakota state trial court issued a TRO restricting the protesting activity of pro-life demonstrators in the immediate vicinity of the Fargo Women's Health Organization, Inc. ("FWHO" or "the clinic"). Fargo Women's Health Organization, Inc. v. Lambs of Christ, No. 91-1953 (Cass County Dist. Ct. filed Oct. 28, 1991). The operative provisions of the TRO enjoined the pro-life protestors from:

(a). trespassing on, sitting in, blocking, impeding or obstructing ingress or egress from FWHO facilities and the homes and residences of Plaintiffs Miks, Wicklund, and Bovard, as well as the homes and residences of any staff (paid or volunteer) or patients of FWHO.

(b). harassing, intimidating or physically abusing persons entering, leaving or working at FWHO facilities;

(c). obstructing the work of the persons located at FWHO facilities by any means--including singing, chanting, yelling, shouting, or screaming--that substantially interferes with the provision of medical services including counseling, with[in] such facility;

(d). going within 100 feet of the property line of FWHO during such times as they are open for business, except that one person may quietly and peacefully picket such facility, so long as that person does not interfere with the operations of said facility as provided herein.

(e). following, harassing, photographing, videotaping, and intimidating, or speaking to staff and patients of FWHO who have indicated that they do not wish to be spoken to.

(f). distributing leaflets or brochures to any person who has indicated orally or by gesture that such person does not wish to receive such literature.

(g). inducing, encouraging, or directing others to take any of the actions described in paragraphs (a).-- (f). above.

...

IT IS FURTHER ORDERED THAT THE Cass County Sheriff, Fargo Police Department, and any other Law Enforcement Authority may enforce this order and may make arrests for the violation of this order.

Id. at 2-4.

The pro-life protestors challenged the constitutionality of the TRO, but the North Dakota Supreme Court, ten months after the arrest challenged in this case, upheld those provisions of the TRO that are directly involved in this case. See Fargo Women's Health Organization, Inc. v. Lambs of Christ, 488 N.W.2d 401 (N.D.1992). ¹ Specifically, the court upheld the excessive noise restriction contained in paragraph (c), supra, which is involved here, on the ground that the noise created by the protestors had been so loud and invasive as to substantially interfere with the provision of medical services. Id. at 409-10. On this appeal, Habiger does not challenge this judgment and does not contest the facial validity of paragraph (c) or any other provision of the TRO. ²

In its opinion, the North Dakota Supreme Court described the events leading up to the issuance of the TRO:

Since 1981, the Fargo Women's Health Organization has operated a clinic which provides a full range of gynecological medical services including first trimester abortions. Approximately 75 demonstrations by anti-abortion protestors have been held in the vicinity of the clinic. It appears that most of these demonstrations were peaceful consisting of picketing, leafleting, and speaking to people in the area near the clinic. Beginning March 29, 1991, the character of the protests changed. On that day, 26 people stormed the clinic, broke down a door, occupied its rooms, and locked themselves together using bicycle locks. The demonstrators refused to leave, were arrested, and were removed by Fargo police after their locks were removed by a locksmith.

On nine other occasions in the ensuing seven months, demonstrators were arrested for criminal acts committed in conjunction with anti-abortion protests. As a result of these actions, patients were confronted and jostled as they attempted to walk to the clinic. Some patients were able to reach the clinic only with the assistance of volunteer "escorts" or professional security officers who walked them through groups of hostile, screaming protestors that surrounded them, stood in their way, forced leaflets into patients' hands and otherwise impeded patients' access to the clinic. Protestors struck, pushed, and threatened escorts and guards with physical harm. One protestor was arrested trying to climb the clinic's fence in order to reach a patient using the clinic's rear entrance.

Patients who attempted to drive to the clinic were confronted at the entrance to the clinic parking lot. Protestors stood in the way of the cars, climbed onto the vehicles' hoods or under the cars. Some protestors attempted to fasten themselves to the frames of cars in order to delay their removal from the site. On one occasion, protestors placed blocks against the tires and attempted to cut a cable in order to disable a car after they succeeded in stopping it in the clinic's driveway. On another occasion, protestors waited across the street from the clinic for a car to approach the parking lot at which point they rushed into the street, stopped the car, and blocked the public road. As a result of these tactics, the clinic was effectively blockaded; patients and staff could not enter or leave the clinic for hours at a time.

The protestors called these blockades "rescues." At anti-abortion rallies held after the "rescues" began, spokesmen for the associations asked volunteers to participate by being jailed for rescuing babies. The rescues were to be part of a two-year campaign to force the clinic to close.

Away from the clinic, protestors followed clinic staff members in cars, and into grocery stores, airports, and other public buildings. Their activities were particularly intense against one of the clinic's doctors. During a five month period, groups as large as 30 demonstrated at the gate of her home, congregating in predawn hours, shouting and honking car horns, and attempting to block the departure of the doctor and her family members. Some protestors roamed on the doctor's property, leaving a banner draped over a car, a baby stroller and basket on her porch. During times when the protestors were near the site, the doctor's house and garage were vandalized. Protestors followed the doctor in cars as she drove to Fargo or to the airport. Groups waited for the doctor in airport parking ramps and rushed at her, yelling and flashing cameras. They leafleted cars at the school of the doctor's daughter, and two protestors were asked to leave the school building when they attempted to obtain a photo of her daughter. A car full of protestors also followed the daughter of one of the clinic's volunteers.

Id. at 404-05.

B.

On the morning of October 31, 1991, Habiger and approximately seventy-five other individuals participated in a protest near the clinic to protest the issuance of the TRO. During the protest, several police officers, including Sergeant Don Lawyer ("Lawyer") were in front of the clinic to enforce the TRO. After Habiger walked over to Lawyer, Lawyer told him that he could not cross the red-line marking the 100 foot radius around the clinic. Habiger responded that, "this is quite a country we got here. We're living on the edge of socialism. It's more like a communist regime." Habiger, at 712.

After several of the protestors refused to stand behind the line, approached within 80 feet of the clinic property, sat down, and refused to move, the police officers began arresting them for violating the terms of the TRO. About the time that the officers began arresting the protestors, Habiger, from behind the line, began to criticize loudly the officers' conduct. Lawyer repeatedly asked Habiger to quiet down. Despite Lawyer's requests, Habiger continued to condemn the police officers in loud tones:

This is a dictatorship in this town. An evil city. You work for evil people that are killing human beings in there. You don't...