Hewett v. City of King

• Decision Date: 08 July 2014
• Docket Number: No. 1:12CV1179.,1:12CV1179.
• Parties: Steven HEWETT, Plaintiff, v. CITY OF KING, Defendant, and The American Legion and American Legion Post 290 of King, North Carolina, Defendant–Intervenors.
• Court: U.S. District Court — Middle District of North Carolina

29 F.Supp.3d 584

Steven HEWETT, Plaintiff,
v.
CITY OF KING, Defendant,
and
The American Legion and American Legion Post 290 of King, North Carolina, Defendant–Intervenors.

No. 1:12CV1179.

United States District Court,
M.D. North Carolina.

Signed July 8, 2014.

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Ayesha N. Khan, Gregory M. Lipper, Zachary A. Dietert, Americans United for Separation of Church and State, Washington, DC, John M. Moye, Kilpatrick Townsend & Stockton LLP, Raleigh, NC, Chris W. Haaf, Kilpatrick Townsend & Stockton, LLP, Winston–Salem, NC, for Plaintiff.

Elizabeth A. Martineau, Gray King Chamberlin & Martineau, LLP, Crystal–Gaye M. Trotter, Martineau King PLLC, Charlotte, NC, Bryan H. Beauman, Sturgill, Turner, Barker & Moloney, LLC, Lexington, KY, Joseph Paul Infranco, Alliance Defending Freedom, Scottsdale, AZ, for Defendant.

D.J. O'Brien, III, Kearns Davis, Brooks Pierce McLendon Humphrey & Leonard, Greensboro, NC, Glenna Riley, Joseph R. Hicks, Richard K. Willard, Shannen Wayne Coffin, Steptoe & Johnson LLP, Washington, DC, Hiram S. Sasser, Liberty Institute, Plano, TX, for Defendant–Intervenors.

MEMORANDUM OPINION AND ORDER
BEATY, District Judge.

On November 2, 2012, Plaintiff Steven Hewett (“Plaintiff”) filed his Complaint in this case against Defendant City of King (“Defendant City of King” or “the City”) seeking declaratory and injunctive relief under 42 U.S.C. § 1983, the First Amendment of the United States Constitution, and Article I, §§ 13 and 19 of the North Carolina Constitution. This matter is before the Court on Motions for Summary Judgment [Docs. # 68, # 70, # 72] filed by (1) Defendant City of King, (2) the American

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Legion and American Legion Post 290 of King, North Carolina (“Defendant–Intervenors”), and (3) Plaintiff. The Motions for Summary Judgment are fully briefed and ripe for adjudication by this Court. Also before the Court is a Motion in Limine to Exclude Expert Testimony [Doc. # 88] filed by Plaintiff requesting that the Court exclude the expert testimony of Professor Joseph T. Glatthaar, the expert witness retained by Defendant–Intervenors. Furthermore, Defendant City of King has filed a Motion to File Supplemental Brief [Doc. # 113]. Plaintiff has filed a Response in Opposition to Defendant City of King's Motion for Supplemental Briefing [Doc. # 117] and Defendant City of King has filed its Reply Brief [Doc. # 118]. For the reasons set forth below this Court will grant in part and deny in part Plaintiff's Motion for Summary Judgment [Doc. # 72], the Court will grant in part and deny in part Defendant City of King's Motion for Summary Judgment [Doc. # 68], and deny Defendant–Intervenors' Motions for Summary Judgment [Docs. # 70]. Though Plaintiff requests that this Court grant its Motion in Limine to Exclude Expert Testimony [Doc. # 88] of Dr. Joseph T. Glatthaar, the Court will defer disposition of that Motion to the trial court, as this Court finds that based on the evidence of Plaintiff's expert witness alone, Dr. Kurt Piehler, and other evidence in the record, that there is a genuine issue of material fact relating to the issue that is subject to such evidence. Thus, the Court will defer all outstanding evidentiary motions in this case to the trial court. Finally, the Court will deny Defendant City of King's Motion to File Supplemental Brief [Doc. # 113].

I. FACTUAL BACKGROUND

The following is a presentation of the undisputed facts in this case. However, to the extent any disputed facts must be resolved in the light most favorable to the nonmoving party, the Court will address those additional facts in the relevant and appropriate context below.

Plaintiff, a resident of King, North Carolina initiated the instant action by filing a Complaint [Doc. # 1] with the Court on November 2, 2012. Plaintiff alleges that Defendant City of King violated his First Amendment rights by promoting religion, specifically Christianity, by (1) allowing the Christian flag to fly in the City's Central Park at the Veterans Memorial ¹; (2) placing a statue depicting a soldier kneeling in front of a cross in the City's Central Park at the Veterans Memorial; and (3) hosting invocations, benedictions, and other alleged Christian practices at memorial events held at the Veterans Memorial. The Court will discuss the factual background of each alleged violation in turn.

A. Flag Display

In 2003, Defendant City of King initiated plans to build a Veterans Memorial in the City's Central Park and designated five members ² to head the Veterans Memorial committee to create the Memorial. ( See August 4, 2003 Committee Minutes [Doc. # 75–5], Ex. R6 at 2; August 14,

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2003 Committee Minutes [Doc. # 74–1], Ex. I1 at 5.) ³ The Memorial was completed in 2004 and consists of three platforms “(1) a large stone pentagonal platform, (2) a smaller black granite pentagonal platform atop the stone platform, and (3) an even smaller black granite platform atop the other two platforms.” (Compl. at ¶ 14.) The two larger platforms supports flagpoles on each of the pentagonal corners and the smallest platform support one flagpole at its center. The members of the Veterans Memorial committee recommended that the Memorial display eleven flags: (1) five flags from the five branches of the armed forces, (2) the American flag, (3) the State flag, (4) the City flag, (5) the American Legion flag, (6) the Prisoner of War flag, and (7) the Christian flag. (American Legion Post 290 Resps. to Pl.'s First Set of Interrogs. [Doc. # 74–4], at 4.) Veterans Memorial committee member Eligah Epperson (“Epperson”) recommended that the Christian flag be flown, which some of the other committee members supported, and Epperson felt that the Christian flag “represented the morals and beliefs of their community.” (American Legion Post 290 Resps. to Pl.'s Second Set of Interrogs. [Doc. # 74–5], at 2.) However, committee member Colonel James Ingram had reservations about flying the Christian flag on the eleventh flagpole, recommending that the committee choose a flag with a “closer connection to the military or veterans” and did not vote for the recommendation that the Christian flag be flown, due to his reservations. ( Id. at 3.) The City adopted the recommendation that the Christian flag be flown on the eleventh flagpole. ( Id.)

From 2004 until 2010, the Christian flag was consistently flown at the Veterans Memorial, without complaint, until the City took it down in the fall of 2010. The decision to remove the Christian flag from the Veterans Memorial was prompted by Plaintiff's anonymous call to City Manager John Cater (“Cater”) to voice his concern about the Christian flag being flown at the Veterans Memorial. (Video Recording KK5, available at http:// tinyurl. com/ Exhibit KK 5). In discussing his concern with Cater, Plaintiff's essential complaint was that he believed the display of the Christian flag at the Veterans Memorial was a misrepresentation of veterans and that the City was likely “in violation of separation of church and state.” ( Id. at 4:55–5:03). Cater noted that Plaintiff was the only person to complain of the Christian flag aspect of the Memorial and Cater told Plaintiff that he, Plaintiff, was ashamed of his complaint because he would not give Cater his full name. However, Cater also acknowledged that he heard arguments similar to Plaintiff's and that “legally speaking [Plaintiff is] probably correct.” ( Id. at 12:00–12:32). Subsequent to the phone call between Cater and Plaintiff, Cater informed the City Council about Plaintiff's phone call and the city attorney recommended that the City remove the flag. On August 2, 2010, the City Council held a council meeting and discussed, among other things, Plaintiff's phone call to Cater and the city attorney's recommendation. (Aug. 2, 2010 City Council Minutes [Doc. # 74–11], at 5.) The City Council voted 3 to 0 to keep the Christian flag at the Veterans Memorial. ( Id.) Mayor Pro Tempore Dillard Burnette (“Burnette”), in referring to the anonymity

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of Plaintiff's phone call, stated that “[t]his shows how cowardly these people are” and Mayor Jack Warren (“the Mayor” or “Mayor Warren”) stated that Plaintiff “definitely needs us to pray for him.” (Aug. 4, 2010 News Article [Doc. # 75–7]; Def.'s Resp. to Pl.'s First Reqs. for Admissions [Doc. # 74–10], at 1, 2 (admitting that Mayor Warren and Burnette made statements discussed in news article).) However, after receiving letters from the American Civil Liberties Union (“ACLU”) and upon advice of the City Attorney, the City Council voted the next month, 3 to 1, to remove the Christian flag from the Memorial. (Sept. 15, 2010 City Council Minutes [Doc. # 74–13].) Councilman Wesley Carter, the only council member to vote against the removal of the Christian flag at the September 15, 2010 meeting, stated that he felt that it was his and others' “religious right and the religious freedom that we are granted by the Constitution to fly that flag” and that the nation “was founded on Christian principles, and [the] flag represents those principles.” (The Stokes News Article [Doc. # 81–4], at 1; Def.'s Resp. to Pl.'s First Reqs. for Admissions [Doc. # 74–10], at 2 (admitting statement).)

After the City voted to remove the Christian flag, it received phone calls (approximately fifty to one hundred), letters, emails, and a petition with hundreds of signatures, the bulk of which expressed grievances with removal of the Christian flag from the Veterans Memorial. (Petition [Doc. # 76]; Letters and Emails [Doc. # 76–1]; Cater Email [Doc. 76–2], at 43 (stating that the City received fifty to one hundred phone calls regarding the removal of the Christian flag).) Plaintiff also alleged that he faced repercussions after it was determined that he lodged the complaint regarding the Christian flag. In Plaintiff's deposition testimony, he states that such repercussions included (1) being assaulted by a neighbor; (2) having an...