Hansen v. Williamson

• Decision Date: 20 June 2006
• Docket Number: No. 04-74379.,04-74379.
• Citation: 440 F.Supp.2d 663
• Parties: Thomas D. HANSEN, Plaintiff(s), v. Donald WILLIAMSON, individually and in his official capacity as Mayor of the City of Flint, and the City of Flint, Defendant(s).
• Court: U.S. District Court — Eastern District of Michigan

440 F.Supp.2d 663

Thomas D. HANSEN, Plaintiff(s), v. Donald WILLIAMSON, individually and in his official capacity as Mayor of the City of Flint, and the City of Flint, Defendant(s).

No. 04-74379.

United States District Court, E.D. Michigan, Southern Division.

June 20, 2006.

COPYRIGHT MATERIAL OMITTED

Gregory T. Gibbs, Jeanmarie Miller, Gregory T. Gibbs Assoc., Flint, MI, Kary L. Moss, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI, James J. Walsh, Bodman, Ann Arbor, MI, for Plaintiff.

Trachelle C. Young, Flint City Law Department, H. William Reising, Plunkett & Cooney, Flint, MI, for Defendants.

ORDER

ROBERTS, District Judge.

I. INTRODUCTION

This matter is before the Court on: 1) Defendant Williamson's Motion for Summary Judgment (Doc. # 31), and 2) Defendant City of Flint's Motion for Summary Judgment (Doc. # 26). For the reasons stated, Defendant Williamson's Motion is GRANTED IN PART and DENIED IN PART. Defendant City of Flint's Motion is GRANTED in its entirety.

II. BACKGROUND

Plaintiff Thomas D. Hansen is an independent contractor with Booth Newspapers, Inc. He delivers the Flint Journal, a local newspaper circulated in Flint, Michigan. He brings this action against Defendants City of Flint ("the City" or "Flint") and Flint Mayor Donald Williamson.

On September 21, 2004, Plaintiff was delivering the Flint Journal to regular subscribers who worked at Flint City Hall. While on the elevator, Plaintiff encountered Defendant Williamson. Plaintiff says Williamson noticed his newspapers. Williamson asked Plaintiff what he was doing. When Plaintiff told him, Williamson asked him if he was aware of an Executive Order Williamson enacted which Williamson said precludes such deliveries. Williamson was referring to Executive Order # 04-0007, which he enacted on July 7, 2004. It prohibits employees from reading, storing or bringing newspapers and other reading materials unrelated to City business on City property:

Section 2. Prohibited Storage of Reading Materials. All employees of the City of Flint are hereby prohibited from bringing unto any City property, or into any City vehicle, newspapers, magazines, or other reading materials that are unrelated to City business.

Pl. Exh. 8. One week later, Williamson enacted a second Executive Order, # 04-0005, to establish a policy that all Executive Orders are to be enforced by City department heads and supervisors. See Pl. Exh. 9. Failure to enforce the Orders would result in disciplinary action, including possible termination. Id.

Asserting that Williamson did not have the authority to prohibit his deliveries, Plaintiff told Williamson that it would take a court order to stop him from delivering papers at City Hall. Williamson then asked Plaintiff if he had a peddler's license. When Plaintiff said "no," Williamson said "I'll show you how much authority I have," and used a cell phone to call Flint Chief of Police Gary Hagler. Pl. Exh. 10 at p. 50. Williamson told the Chief that he wanted Plaintiff arrested for peddling without a license. Plaintiff asked Williamson if he was going to have him arrested for delivering papers to subscription customers. Williamson said "yes." Williamson then asked Plaintiff to give the names of his subscribers. Plaintiff refused.

The Chief sent Captain Scott Sutter and Sergeant Michael Lipp. Plaintiff and Williamson were still in the elevator when Sutter and Lipp arrived.¹ Williamson told them that he wanted Plaintiff arrested for peddling without a permit. Plaintiff says the officers asked him to step out of the elevator and told him to place his hands against the wall. The officers then frisked Plaintiff and led him away to the Flint Police Station, which is adjacent to City Hall. Plaintiff was not handcuffed.

During a brief questioning, Plaintiff says Lipp told him that delivering papers in City Hall was against Williamson's Executive Order. But, per Plaintiff, the officers said that they did not know whether they would arrest him. Lipp told Plaintiff that an appearance ticket might be issued. Lipp says that he considered doing so because Plaintiff said that he sold a paper (presumably that day) to someone who was not a subscriber and who he believed was sent by the Mayor to "set him up." Plaintiff only denies the statement in an (inadmissible) unsworn affidavit. Pl. Exh. 21 at ¶ 6. But, in his deposition, Plaintiff denied selling any papers to individuals on the day of the incident (although he admitted doing so on a few other occasions).

Sutter conferred with Chief Hagler and the City's legal counsel after he and Lipp questioned Plaintiff. Based on those discussions, Plaintiff was released. Plaintiff estimates that the entire incident lasted 25 to 30 minutes. No charges were ever filed.

The peddler ordinance referenced by Williamson prohibits peddling, soliciting or canvassing in the City of Flint without a license:

§ 12-172 License; Peddling or Vending in Certain Area [sic] Prohibited.

(a) It shall be unlawful for any solicitor, canvasser or peddler to engage in such business in the city without first having obtained a license therefor in the manner set forth in this article. Any license so issued shall not permit any person to engage in the business of peddling or vending any goods, wares or merchandise except in areas zoned for commercial sales.

Pl. Exh. 18. Peddlers, solicitors and canvassers are defined in the ordinance:

For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

PEDDLER. Any person 18 years of age or older, engaged in the business or occupation of selling or offering for sale, goods, wares, merchandise, flowers, foods or beverages, or in the course of traveling from one location to another, on private or public property in the city.

* * *

SOLICITOR or CANVASSER. Any person 18 years of age or older engaged in the business or occupation of taking orders or attempting to take orders, in the course of traveling from one location to another, on private or public property in the city, for the sale and purchase of service, goods, wares, merchandise or any tangible property, for future delivery or for services to be performed in the future, whether or not such individual has, carries or exposes for such sale a sample of the subject of such sale, or whether he is collecting advance payments on such sales or not.

Id at § 12-171.

A person must apply for a peddler's license through the City. Id at § 12-173. The City Clerk decides whether a license should issue:

Upon receipt of an application for a license under this article, together with the appropriate fee, the City Clerk shall make such investigation as he deems necessary for the protection of the public good. If as a result of such investigation, the applicant's character and business reputation are found to be unsatisfactory, the application shall be denied. If as a result of the investigation the character and business reputation appear to be satisfactory, the City Clerk shall issue a license.

Pl. Exh. 18, § 12-175(a).

The day after his encounter with Williamson, Plaintiff says he went to the City Clerk's office and asked whether he needed a peddler's license to deliver newspapers. Per Plaintiff, City Clerk Inez Brown told him that he probably would not need a license. And, Defendants do not dispute Plaintiffs assertion that no news carriers were prosecuted for violation of the ordinance in the five years preceding this incident.

Williamson says he enacted the Executive Order banning newspapers and other literature in response to his observation that City workers were reading newspapers and other literature during times when they were supposed to be working. Plaintiff opines, however, that Williamson bears a grudge against the Flint Journal specifically. The grudge, per Plaintiff, stems from editorials in the Flint Journal critical of Williamson and/or with which he disagreed. In fact, months after he was elected (and presumably before this incident) Williamson publicly called for a boycott of the Flint Journal. And, in an interview Williamson gave, during which he referred to this incident, he is quoted as saying that Flint Journals are not allowed on City Hall property, but that his office² puts the Detroit Free Press in the lunchroom. Pl. Exh. 4 at pp. 9-10. Notably, in the same interview, Williamson is also quoted as saying that he does not oppose the sale of Flint Journals by the retail store located in the lobby of City Hall. Id at p. 10. Williamson did not deny the accuracy of the quotes attributed to him.

Plaintiff alleges that the stop, frisk and arrest of him for delivering newspapers to subscribers infringed upon his First and Fourth Amendment rights in violation of 42 U.S.C. § 1983. Defendants request summary judgment on both claims.

III. STANDARD OF REVIEW

Under Fed. R. Civ. P 56(c), summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir.1995). A fact is "material" and precludes a grant of summary judgment if "proof of that fact would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect application of appropriate principle[s] of law to the rights and obligations of the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). The court must view the evidence in the light most favorable to the nonmoving party and it must also draw all reasonable inferences in the nonmoving party's favor. Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir.1995).

The moving party bears the initial burden of showing that there is...