Jacobsen v. Lambers

Decision Date09 May 1995
Docket NumberCiv. A. No. 94-2440-KHV.
Citation888 F. Supp. 1088
PartiesHarlan L. JACOBSEN, Editor/Publisher of Solo RFD, Plaintiff, v. Scott LAMBERS, et al., Defendants.
CourtU.S. District Court — District of Kansas

Harlan L. Jacobsen, Sioux Falls, SD, pro se.

Robert L. Bezek, Jr., Anderson, Byrd, Richeson & Flaherty, Ottawa, KS and Michael K. Seck, Fisher, Patterson, Sayler & Smith, Overland Park, KS, for defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff Harlan L. Jacobsen edits and publishes a singles newspaper called Solo RFD. After the City of Ottawa, Kansas, seized his newsrack, arrested him, and charged him with the crime of distributing newspapers without a license, Jacobsen filed suit for declaratory and injunctive relief and damages under 42 U.S.C. § 1983. Jacobsen claims that the city ordinance under which he has been prosecuted, and his property seized, is unconstitutional. More specifically, Jacobsen claims that Ordinance No. 3103-94 violates his rights under the First Amendment of the United States Constitution and that the city officials who enforced that ordinance violated his rights under the First, Fifth and Fourteenth Amendments. In particular, Jacobsen seeks relief from City Manager Scott Lambers and city police officer Merle Taylor in their individual and official capacities.

This matter comes before the Court on Defendants' Motion for Summary Judgment (Doc. # 22), filed April 3, 1995. For reasons stated below, the Court finds that said motion should be sustained in part and overruled in part.

Summary Judgment Standards

Rule 56(c) of the Federal Rules of Civil Procedure directs the entry of summary judgment in favor of a party who "shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A principal purpose of the summary judgment rule is to "isolate and dispose of factually unsupported claims or defenses...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The court's inquiry is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Entry of summary judgment is mandated, after an adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Meredith v. Beech Aircraft Corp., 18 F.3d 890, 893 (10th Cir.1994). Summary judgment is inappropriate, however, if there is sufficient evidence on which a trier of fact could reasonably find for the nonmoving party. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (10th Cir.1991).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact by informing the court of the basis for its motion. Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993). This burden, however, does not require the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553 (emphasis in original). Once the moving party properly supports its motion, the nonmoving party "may not rest on its pleadings, but must set forth specific facts showing that there is a genuine issue for trial...." Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.1993). The court reviews the evidence in the light most favorable to the nonmoving party, e.g., Thrasher v. B & B Chem. Co., Inc., 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular claim. Anderson, 477 U.S. at 254-55, 106 S.Ct. at 2513-14.

Uncontroverted Facts

The following facts are undisputed for purposes of this motion:

In June or July of 1994, Harlan L. Jacobsen, a resident of South Dakota, installed a newsrack on a public sidewalk in front of the post office in Ottawa, Kansas.1 When he returned a month later to deliver more papers, he learned that the newsrack was missing. Jacobsen called the post office on or about September 24, 1994, and spoke to a maintenance person who said that the post office had not removed the newsrack. Immediately after this conversation, Jacobsen faxed to the Ottawa City Attorney, Forrest Lowry, copies of a federal court order from the United States District Court for the District of Arizona. This order purported to prohibit all United States post offices from interfering with Jacobsen's right to place newsracks in front of post offices. Jacobsen also faxed Lowry an article concerning a court order which purported to bar the City of Omaha, Nebraska, from charging a license fee for the sale of newspapers.

Within 24 hours, Jacobsen received a telephone call from Scott Lambers, Ottawa City Manager. Lambers is responsible for administering of all city affairs, including the enforcement of municipal laws and ordinances, under K.S.A. § 12-1014. Lambers told Jacobsen that the city had not removed his newsrack but that he would check to see where the newsrack was. He suggested that Jacobsen should call the police.

Shortly after the conversation with Lambers, Jacobsen received a letter dated September 30, 1994, from Ottawa Police Chief Jeffrey Herrman. Herrman indicated that the post office had removed the newsrack and placed it on the side of the post office building (from whence it disappeared). Hermann also informed Jacobsen that city approval was required for placement of a newsrack.

In response to Hermann's letter, Jacobsen called Lambers. Jacobsen told Lambers that he would be in Ottawa to install another newsrack on Friday or Saturday. Jacobsen and Lambers agreed that Jacobsen would put the newsrack in the same place in front of the post office, but that Jacobsen would not cable it to a traffic sign. Because Lambers had not been aware of Herrman's letter, he asked Jacobsen to fax him a copy. Lambers also informed Jacobsen that the newsracks were not prohibited.

Jacobsen arrived in Ottawa on October 1, 1994, at approximately 4:00 p.m. As he unloaded the newsrack at the post office, a police car arrived, and an officer told Jacobsen that a City of Ottawa ordinance required a permit for such newsracks. Two additional police cars then appeared, and city police officer Merle Taylor arrived on the scene. Jacobsen told Taylor about his agreement with Lambers and suggested Taylor contact Lambers about the situation. Instead, Taylor talked to his captain, who ordered that "either Jacobsen moves the newsrack or they ... arrest him." Taylor therefore ordered Jacobsen's arrest.2

After taking him into custody, officers charged Jacobsen with violating Ordinance No. 3103-94, Section 11-402a of the Ottawa Municipal Code. That ordinance, which purports to define, regulate, and license itinerant salesmen, merchants, solicitors, and vendors, is attached hereto as Exhibit A.

Lambers now believes that the ordinance required Jacobsen to obtain a city license before placing his newsrack on a public sidewalk. Jacobsen neither sought nor obtained such a license, although Lambers claims that the city would have issued one if Jacobsen had completed the necessary application and paid the requisite fee. According to Lambers, that fee — $25.00 for each 14-day period — is intended to cover the administrative cost of licensure.

Jacobsen sues Lambers and Taylor in their individual and official capacities, seeking declaratory and injunctive relief and actual and punitive damages. Jacobsen claims that defendants are liable under 42 U.S.C. § 1983 because, in violation of his rights under the First, Fifth, and Fourteenth Amendments and pursuant to an ordinance which is unconstitutional both facially and as applied, defendants seized his property, arrested him, and prevented him from distributing his newspaper through channels guaranteed by the First Amendment.

Defendants seek summary judgment. First, they assert that the ordinance in question is not unconstitutional on its face or as applied because it is content-neutral, gives city officials no discretion with regard to issuance of licenses, and imposes only a reasonable licensure fee sufficient to cover administrative costs. Second, defendants assert that plaintiff has failed to demonstrate that they are unprotected by the doctrine of qualified immunity and are otherwise subject to liability. Finally, defendants argue that plaintiff has failed to demonstrate that defendants were responsible in their official capacities for creating the policy or procedure which violated plaintiff's constitutional rights. Accordingly, defendants insist that they are entitled to judgment as a matter of law.

Analysis
A. Constitutionality of Ordinance No. 3103-94

In his complaint, Jacobsen asks the Court to declare that Ordinance No. 3103-94 is unconstitutional, both on its face and as applied. Defendants contend that the ordinance is constitutional on both fronts because it is content-neutral, does not give the city unbridled discretion with respect to issuance, and does not place unreasonable restrictions upon plaintiff's ability to disseminate his message.3

Preliminarily, we note that Ordinance No. 3103-94 is a law of general applicability which purports to define, regulate and license itinerant salesmen, merchants, solicitors and vendors. As such, it is not aimed at expressive activity or at conduct commonly associated with speech. Plaintiff does not argue that the ordinance has no valid application, but only that as written, it cannot constitutionally be applied to activity protected by the First Amendment. Consequently, plaintiff's attack on the ordinance is a challenge to the ordinance as applied, and the Court limits...

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3 cases
  • Gasparo v. City of New York
    • United States
    • U.S. District Court — Eastern District of New York
    • 28 Mayo 1998
    ...109 F.3d 1268 (8th Cir.1997); Sentinel Communications Co. v. Watts, 936 F.2d 1189 (11th Cir.1991) (citing cases); Jacobsen v. Lambers, 888 F.Supp. 1088, 1093 (D.Kan.1995) (citing It is thus well settled that newsracks implicate the First Amendment. The question that this court must therefor......
  • Jacobsen v. Iowa Dept. of Transp.
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    • U.S. District Court — Southern District of Iowa
    • 7 Mayo 2013
    ...Jacobsen v. Howard, 904 F. Supp. 1065 (D. S.D. 1995) (aff'd in part, vacated in part, 109 F.3d 1268 (8th Cir. 1997)); Jacobsen v. Lambers, 888 F. Supp. 1088 (D. Kan. 1995); Jacobsen v. Rauh, Civ. A. No. 89-2255-V, 1991 WL 97530 (D. Kan. May 30, 1991). 6. Although the Court has already deter......
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