Harmon v. Kansas City

• Decision Date: 20 April 1999
• Docket Number: No. 98-3630,98-3630
• Citation: 197 F.3d 321
• Parties: (8th Cir. 1999) Jill Harmon and John Kean, Appellees, v. City of Kansas City, Missouri, Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 321

197 F.3d 321 (8th Cir. 1999)

Jill Harmon and John Kean, Appellees, v. City of Kansas City, Missouri, Appellant.

No. 98-3630

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: April 20, 1999

Filed: October 20, 1999

Appeal from the United States District Court for the Western District of Missouri

[Copyrighted Material Omitted] Before RICHARD S. ARNOLD and WOLLMAN,¹ Circuit Judges, and MAGNUSON,² District Judge.

MAGNUSON, District Judge.

Appellant City of Kansas City, Missouri ("the City") appeals an order by the District Court declaring ordinance number 50-2 of the Kansas City Municipal Code ("section 50-2") unconstitutional on its face and as applied to Appellees John Kean and Jill Harmon. Section 50-2 regulates the sale and advertisement of certain products on Kansas City streets and sidewalks. We conclude that the District court properly refused to abstain from this case and also properly ruled that Appellee Kean has standing to assert an as applied challenge for damages. However, because Kean and Harmon now lack standing to seek injunctive relief, and because the District court need not have determined the constitutionality of section 50-2 on its face, we affirm in part and vacate in part the decision of the District Court.

I. Background

Since 1996, Appellees John Kean and Jill Harmon, also known as the "Butterflies," have actively sought to spread their beliefs regarding personal, social, and political issues on the public sidewalks in Kansas City. Their message, in part, has been delivered by the distribution of "symbolic expressions" regarding the homeless and the hungry, including anklets, bracelets, and wood products. In addition, they distribute pamphlets with pictures to address topics such as equality, hunger, prevention of and recovery from abuse, healing, spiritual injuries, and love. None of these items contain words. Although Appellees do not sell these items, they do request a donation for them. The money raised from donations is used to create more pamphlets and jewelry and to purchase food for the hungry.

While sharing their message, Appellees have been harassed on multiple occasions by the Kansas City Police Department. Twice, police helicopters flew so low over Appellees that they could feel the wind from the helicopter's blades. Appellees also experienced close police motorcycle ride-bys and a police car stakeout. Further, Kean had been threatened with arrest by the Kansas City Police Department. four times, including twice for alleged violations of section 50-2. On June 7, 1996, Kean was arrested for violating a Kansas City ordinance which placed an 11:00 P.M. curfew on the distribution of leaflets in the Westport area of Kansas City.³ Appellees were also arrested for blocking a sidewalk by causing a crowd to gather, in violation of another section of the municipal code.

On July 19, 1996, Harmon and Kean had spread out their blankets and trinkets on the corner of 11th and Main Street in Kansas City, when two police officers approached them. The officers told Appellees to leave the area or they would be arrested. In the midst of this encounter, a woman in the crowd approached Harmon and inquired as to the price of a bracelet. Harmon requested a seven-dollar donation. At that point, an officer informed Harmon that she had violated section 50-2 of the Kansas City Code by attempting to sell an item on a city sidewalk and issued her a citation. In toto, section 50-2 reads:

No person shall sell, solicit, or offer for sale or hawk or peddle any article, thing, or personal service, except newspapers and magazines, in or upon any street, sidewalk, alley, public way, public building, public park or place in the city; provided that nothing contained in this section shall be construed to prohibit the sale of articles from traveling florists or grocers; hucksters, as defined in Section 40-108; food or beverage wagons, including any street vendor of food regulated by the Health Department as a food vendor selling food in or upon any street, sidewalk, alley, public way, building or place not controlled by the Board of Parks and Recreation Commissioners; or vendors of milk and dairy products and hot tamales; or producers of farm products as defined in RSMo 71.630; or businesses. which are wholly located on private property but which sell articles to persons on the public sidewalk; provided, further, this section shall not be deemed to apply to the sale of any personal property at any established place in any public building, public park or public place by express authority of the government agency in control thereof.

Kansas City Mun. Code 50-2. Thereafter, Appellees left the area, and because of fear of prosecution, restricted their activities to the Westport area.

On April 7, 1997, Appellees filed a pro se action in District Court against the City seeking damages and declaratory and injunctive relief on the basis that section 50- 2 is facially unconstitutional and unconstitutional as applied under the First and Fourteenth Amendments. On May 13, 1997, the City filed a motion to dismiss or to stay the proceedings in the federal case. The City first asserted that Younger abstention was proper because a case was pending against Harmon in municipal court for an alleged violation of section 50-2 in which Harmon had filed a motion challenging the constitutionality of the ordinance.⁴ Secondly, the City argued that Kean lacked standing to challenge the constitutionality of the ordinance because he had neither been arrested nor charged with violating section 50-2.

The District Court applied Younger abstention as to Harmon and therefore, dismissed her from the federal suit without prejudice. As to Kean, the court refused to abstain from the case and further, found that he possessed standing to challenge the ordinance despite the fact that he had not been arrested or given a citation. The District Court proceeded to hold that section 50-2 was unconstitutional as applied to Kean and on its face and therefore, granted summary judgment in his favor. Subsequent to this ruling, the City dismissed its municipal case against Harmon. On May 26, 1998, the District Court granted Harmon's motion for reconsideration and reinstated her claim, extending the scope of the April 2 summary judgment order to Harmon based on its belief that both Appellees engaged in the same activity at the same time.

On June 11, 1998, the District Court held a bench trial to determine damages for Harmon and Kean, resulting in an award of $25,000 to Harmon and $10,000 to Kean. The court later awarded a total of $73,576.25 in attorney's fees. Moreover, the court permanently enjoined the City from enforcing section 50-2. The City now appeals the District Court's decision as to the constitutionality of section 50-2 and the monetary and injunctive relief issued pursuant thereto.

II. Abstention

The District Court's initial application of the Younger abstention doctrine to Harmon's suit is not disputed. However, the City does challenge the court's refusal to abstain from Kean's suit and its later reinstatement of Harmon's case, claiming that such action interfered with an ongoing state proceeding. In Younger v. Harris, 401 U.S. 37, 43-44 (1971), the Supreme Court advanced the position that federal courts should refrain from interfering with pending state judicial proceedings absent extraordinary circumstances. Under Younger, abstention is warranted if the action complained of constitutes the basis of an ongoing state judicial proceeding, the proceedings implicate important state interests, and an adequate opportunity exists in the state proceedings to raise constitutional challenges. See Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996).

The District Court did not abstain from Kean's suit because it found that the actions complained of did not constitute the basis of an ongoing state judicial proceeding. Simply put, Kean was not charged in municipal court. The City argues, however, that by proceeding with Kean's case in federal court, the District Court might. have interfered with Harmon's case in state court because the "municipal court could not continue with a prosecution under an ordinance that a federal court has held to be unconstitutional." (Appellant's Br. at 12.) But the mere fact that a co-plaintiff has been charged under a statute that is being challenged as unconstitutional does not amount to federal intervention. See Womens Servs., P.C. v. Douglas, 653 F.2d 355, 356 (8th Cir. 1981) (citing Younger, 401 U.S. at 43-54.) Accordingly, we conclude that the District court acted within its discretion in refusing to abstain from Harmon's case. See Fuller, 76 F.3d at 959 (reviewing a district court's decision on Younger abstention under an abuse of discretion standard.)

The City further argues that the District Court was required to abstain because Kean's rights were intertwined with Harmon's rights; therefore, proceeding with the federal case would interfere with the municipal court's ruling.⁵ Admittedly, in extraordinary circumstances where the federal plaintiff is actually attempting to interfere with the state lawsuit, a showing of intertwining interests may warrant abstention. See Hicks v. Miranda, 422 U.S. 332, 348-49 (1975); Stivers v. Minnesota, 575 F.2d 200, 202-03 (8th Cir. 1978). But those extraordinary circumstances are not present here. Kean did not take any action (such as seeking a stay of the state court proceedings) which would interfere with the state proceedings against Harmon. SeeWomens Servs., 653 F.2d at 356-57 (noting that "a crucial aspect of this case is that the federal plaintiffs did not seek to enjoin the . . . criminal proceeding against [their co-plaintiff]").

As to Harmon, the District Court reinstated her as a plaintiff in the federal case only after the City dismissed its claims against her in municipal court. Thus, Harmon's federal suit could not interfere with a ...