Keister v. Bell
| Citation | 461 F.Supp.3d 1152 |
| Decision Date | 19 May 2020 |
| Docket Number | Case No.: 7:17-cv-00131-RDP |
| Parties | Rodney KEISTER, Plaintiff, v. Stuart BELL, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Jason B. Tingle, Jauregui & Lindsey LLC, Birmingham, AL, Mark Anthony Mangini, Nathan W. Kellum, Pro Hac Vice, Center for Religious Expression, Memphis, TN, Walter Martin Weber, American Center for Law & Justice, Annandale, VA, for Plaintiff.
Cole Robinson Gresham, Jay M. Ezelle, Michael R. Lasserre, Starnes Davis Florie LLP, Birmingham, AL, for Defendants.
This case is before the court on the parties’ cross Motions for Summary Judgment. (Docs. # 59, 60). The motions are fully briefed. After careful consideration, and for the reasons explained below, the court finds that Defendants’ Motion for Summary Judgment (Doc. # 59) is due to be granted, and Plaintiff's Motion for Summary Judgment (Doc. # 60) is due to denied.
The facts of this case have been briefed (repeatedly) by the parties. This court , and the Eleventh Circuit, Keister v. Bell , 879 F.3d 1282, (11th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 208, 202 L.Ed.2d 200 (2018), have addressed requests for interim relief. Although the material facts that form the basis of Plaintiff's Complaint have not substantially changed, the parties, after conducting extensive discovery, have presented their fact submissions and legal arguments. Thus, the court once again dives in and reviews the undisputed Rule 56 facts.
Plaintiff Rodney Keister ("Keister") is a traveling Christian missionary, who is personally dedicated to glorifying God through the public sharing of the gospel in public areas throughout the nation. (Id. at ¶¶ 12-13). His basic message is that whoever trusts in Jesus Christ will be saved from their sins. (Id. at ¶ 25). As part of his ministry, he presents the merits of Christianity by preaching, handing out religious literature ("gospel tracts"), and engaging people in one-on-one conversations and prayer. (Id. at ¶¶ 17-19). Keister has a sincere desire to reach out to college-aged students, and he regularly visits college and university campuses. (Id. ). He typically conveys his message on public sidewalks. (Id. at ¶ 15). He generally does not draw large crowds, nor does he intend to do so. (Id. at ¶¶ 21, 22). He does not hinder pedestrian traffic, solicit or ask for money, harass passersby, or litter. (Id. at ¶¶ 22, 23). Keister is sometimes accompanied in his sidewalk evangelism by one or two friends. (Doc. # 39 at ¶¶ 24).
On March 10, 2016, Keister arrived at the University of Alabama ("University" or "UA"). (Id. at ¶ 29). The University is a state-funded public university located in Tuscaloosa, Alabama. (Id .). Around 4:00 p.m., Keister and a companion began speaking with passersby and distributing literature on the University's campus. (Id. at ¶¶ 45, 54). Keister's companion briefly used a megaphone while speaking, but Keister did not. (Doc. # 59-4 at 20-21). The duo were located on a sidewalk on UA's campus next to 6th Avenue, near the corner of Smith Hall and Lloyd Hall. (Doc. # 39 at ¶ 52). Shortly after Keister and his companion began their sidewalk evangelism, they were approached by the campus police and a University representative, who informed them that they could not continue their activities because University policy required a grounds use permit before engaging in such expressive conduct. (Id. at ¶¶ 55-57). The University representative confirmed that the "campus is open to the public, and Keister was allowed to be there, but he could not engage in his preferred forms of expression on the University's campus without first obtaining a [grounds use] permit." (Id. at ¶ 60).
Because Keister and his companion did not have a grounds use permit, they moved to the sidewalk at the intersection of University Boulevard and Hackberry Lane (the "intersection"). (Id. at ¶¶ 60-65). Keister testified that he picked this spot for two reasons. First, he believed it was a public city sidewalk, as opposed to UA property (where he would be required to apply for and receive a grounds use permit). (Id. ). Second, Keister contends that while speaking with a campus police officer on 6th Avenue, Keister specifically proposed that he move locations and preach on the sidewalks at the University Boulevard and Hackberry Lane intersection. (Id. ). In response, the campus police officer stated, "[o]n that corner, you're good." (Id. at ¶ 68).
Shortly after arriving at the intersection of University Boulevard and Hackberry Lane, Keister was again approached by UA campus police, who informed him that the intersection (and its contiguous sidewalk) were indeed part of UA's campus, and UA's grounds use policy applied at that location as well. (Id. at ¶ 73). Fearing arrest for criminal trespass, Keister left UA's campus and has not returned.2 (Id. at ¶¶ 74). Keister testified that he "fervently desires" to return to the public sidewalks next to public streets flowing through UA's campus. (Id. at ¶¶ 77, 86). Specifically, Keister wishes to return to the sidewalks situated at the corner of University Boulevard and Hackberry Lane and share his message with UA students and others affiliated with the University. (Id. ).
On January 25, 2017, Keister filed his complaint in this court alleging violations of 42 U.S.C. §§ 1983 and 1988, and asserting that UA's grounds use policy violates the First Amendment's free speech clause and the Fourteenth Amendment's due process clause. (Doc. # 1). The next day Keister filed a Motion for Preliminary Injunction. (Docs. # 6, 7). In his Motion, Keister argued the University's ground use policy violates the First Amendment, and that the University should be enjoined from enforcing its ground use policy because the intersection of University Boulevard and Hackberry Lane is a traditional public forum and the policy cannot withstand scrutiny. (Id. ). This court set an expedited briefing schedule and held a preliminary injunction hearing. (Docs. # 8, 16). After the hearing, this court issued a written opinion and denied Keister's Motion. (Docs. # 22, 23). In its Memorandum Opinion, the court determined that the intersection was a limited public forum, and the grounds use policy satisfied the requisite level of scrutiny. (Doc. # 22).
Keister appealed the ruling. (Doc. # 26). The Eleventh Circuit affirmed, holding that this court properly determined the intersection at issue is a limited public forum within UA's campus. Keister , 879 F.3d at 1291. Keister filed a petition seeking rehearing en banc , but his request was denied. Keister then petitioned the Supreme Court for a writ of certiorari. That petition was also denied.
After the Supreme Court denied certiorari, the parties continued litigating in this court. Keister filed an amended complaint, again alleging violations of both the First Amendment and the Due Process Clause. (Doc. # 39). In response, Defendants filed a Motion to Dismiss Keister's Amended Complaint (Doc. # 41), which the court denied. (Docs. # 49, 50). On October 10, 2019, the parties filed cross Motions for Summary Judgment. (Docs. # 59, 60). Those have been fully briefed and are now ripe for decision.
University Boulevard and Hackberry Lane are city streets that run through and beyond the perimeter of UA's campus. (Doc. # 39 at ¶¶ 34-36). Sidewalks abound both University Boulevard and Hackberry Lane. (Id. at ¶ 37). At the preliminary injunction stage, the district court found that the sidewalks were located in the "heart" of UA's campus. (Doc. # 22 at 3). In its opinion affirming this court's denial of Keister's Motion for Preliminary Injunction, the Eleventh Circuit stated:
Because Mr. Keister pled in his Complaint that the intersection is within UA campus's bounds, we need not resolve the parties’ disputes as to who maintains and owns the sidewalks at issue. What is clear is that the intersection is within UA's campus and UA treats it as such, as the district court found. And that is all that matters for our purposes today. See Bloedorn , 631 F.3d at 1233 (11th Cir. 2011) ( ) (internal quotations and citations omitted).
Keister , 879 F.3d at 1290 n.5. On remand, Keister amended his complaint and now claims that the intersection at the intersection of University Boulevard and Hackberry Lane is near UA's campus, but not on it, inside it, or a part of it. (Doc. # 39 at ¶¶ 28-44). The below map shows the circled location of the intersection in reference to the outer limits of UA's campus:
. Further, Keister claims that newly presented evidence shows that the corner sidewalks are city property, not UA property. (Doc. # 60-8 at 4). Defendants, of course, dispute that the city owns the sidewalks. (Doc. # 63 at 15-16).3 Although the parties dispute whether the city or the University owns the sidewalks at the intersection, it is undisputed that they are maintained by the University. (Doc. # 22 at 3 n.4; Doc. # 60-7; Doc. # 63 at 15-16)
The University is not fenced-off, gated, or otherwise self-contained. (Doc. # 39 at ¶¶ 30, 31). The intersection at issue is surrounded by UA buildings and is approximately one block from UA's famous Quad. (Doc. # 59-2 at ¶ 34). Visible from the intersection are numerous UA facilities and landmarks. (Id. at ¶ 35). Russell Hall, where Keister was preaching, sits at the northeast corner of the intersection. (Id. ). Gallalee Hall and a UA Parking lot (with a sign restricting its use to UA faculty and staff) occupy its northwest corner. (Id. ). The southwest...
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