Kirkland v. Luken

• Decision Date: 06 March 2008
• Docket Number: No. C-1-02-364.,C-1-02-364.
• Citation: Kirkland v. Luken, 536 F.Supp.2d 857 (S.D. Ohio 2008)
• Parties: William KIRKLAND, Plaintiff, v. Mayor Charlie LUKEN, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

536 F.Supp.2d 857

William KIRKLAND, Plaintiff, v.Mayor Charlie LUKEN, et al., Defendants.

No. C-1-02-364.

United States District Court, S.D. Ohio, Western Division.

March 6, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William Kirkland, Cincinnati, OH, pro se.

Thomas James Harris, III, Cincinnati City Solicitor's Office, Cincinnati, OH, for Defendants.

ORDER

HERMAN J. WEBER, Senior District Judge.

I.Introduction

Plaintiff brings this action pursuant to 42 U.S.C. § 1981,42 U.S.C. § 1983, and42 U.S.C. § 1985 for alleged violations of civil rights secured by the United States Constitution.He also asserts claims under state law.Pending before the Court are plaintiffs objections to the Report and Recommendation of the Magistrate Judge (doc. no. 38), plaintiffsMotion for Evidentiary Hearing(id.) and defendants' Response (doc. no. 40).The Magistrate Judge recommended that defendants' Motion for Summary Judgment granted, judgment be entered in defendants' favor, and this case be terminated upon the docket of this Court(doc. no. 32).

II.Summary Judgment Standard

A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue of material fact,`and that the movant is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(c).SeeCelotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986);Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).The moving party has the burden of showing the absence of genuine disputes over facts which, under governing substantive law, might affect the outcome of the action.Celotex,477 U.S. at 323, 106 S.Ct. 2548.

While all facts and inferences must be construed in a light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986), that party"may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial."Anderson,477 U.S. at 248, 106 S.Ct. 2505.

III.Plaintiffs Objections

Plaintiff makes the following objections to the Report and Recommendation of the Magistrate Judge:

1.Plaintiff objects to the Magistrate Judge's finding that this complaint arises from his conduct at, and removal from, two public meetings of the Cincinnati City Council.(R & R paragraph 1, pg. 879).

2.Plaintiff objects to the Magistrate Judge admonishing him for referring to Mayor Luken as "Charlie."(R & R footnote 2, pg. 879).

3.Plaintiff objects to the Magistrate Judge's finding that he was removed from the City Council meeting by Sgt. Gladden for stepping away from the podium and approaching the Mayor while shouting loudly.(R & R paragraph 1, pg. 879).¹

4.Plaintiff objects to the Magistrate Judge's finding that it is unquestionably clear that defendants Mayor Luken and Vice-Mayor Reece are protected, at least, by qualified immunity (R & R paragraph 1, pg. 881), and that when plaintiff was removed from each Council meeting, Mayor Luken was enforcing an appropriate time, place, and manner restriction.(R & R paragraph 3, pg. 881).²

5.Plaintiff objects to the Magistrate Judge sua sponte introducing into the litigation Cincinnati City Council Rule 2.6.(R & R paragraph 1, pg. 881).

6.Plaintiff objects to the Magistrate Judge's finding that defendants Luken and Reece or the other defendants are entitled to qualified immunity.(R & R paragraph 3, and 4, footnote 4, pg. 881).³

IV.The Record

In arguing their positions, the parties refer, to a videotape made of the first City Council meeting on May 23, 2001.For reasons that do not readily appear in the record, the tape has not been made available to this Court.Accordingly, the Court is unable to refer to the videotape.The parties have also submitted the trial transcript (t.t. # 20) and the sentencing hearing transcript (s.t. # 19) in State of Ohio v. William Kirkland,Case No. 01-CRB-17165 in the Municipal Court of Hamilton County, Ohio, to assist the Court in its determination of plaintiffs objections.The Court finds there is a manifest necessity in the interest of justice to unseal the transcripts and consider them in resolving plaintiffs objections.

V.Facts

The facts giving rise to this case are as follows: Plaintiff attended a City Council meeting on May 23, 2001, completed a speaker's card, and, after the discussion of the items on the agenda had been completed, was called to the podium to speak on a non-agenda item for a period of time not to exceed two minutes.After using the term "Nigganati,"plaintiff was ruled out of order by Mayor Luken, whereupon plaintiff stepped away from the podium and approached the Mayor while shouting loudly, as a result of which he was asked to leave the meeting by Sergeant Gladden several times.Plaintiff refused to leave unless he was placed under arrest.Plaintiff was then arrested by Sergeant Gladden and transported to the Hamilton County Justice Center by Officer Sneed, who filed a complaint against him for criminal trespass in violation of O.R.C. § 2911.21.Plaintiff was tried and convicted of that offense by the Hamilton County Municipal Court.State of Ohio v. William Kirkland,Case No. 01-CRB-17165.

The practice in effect on May 23, 2001, for the right to speak on a non-agenda item at a City Council meeting is described by Mr. John J. Cranley, IV in the following testimony given during Mr. Kirkland's criminal trial:

DIRECT EXAMINATION

BY MS. CRAWFORD:

Q.State your name for the record, sir, and spell your last name.

A.My name is John J. Cranley, IV.Cr-a-n-l-e-y.

Q.And how are you employed?

A.I'm a City Councilman.And I'm a lawyer at the law firm Taft, Stettinius & Hollister.

Q.Okay.And how long have you been a City Councilman, Sir?`

A.Since December.

Q.Of?

A. 2000.

Q. 2000?

A.Yes.

Q.And were you attended — in attendance at the City Council meeting on or about May 23rd, 2001?

A.Assuming that's the time when Mr. Kirkland was arrested, yes.

Q.Okay.Tell me about the procedure about how someone gets the privilege of the floor?

A.Basically what we have, there are a couple different ways depending on whether it's a committee or a Council meeting.But generally speaking you can at the permission of the Chair or a member of Council you can speak on a particular issue.And then you can speak for two minutes per individual at the end of each Committee meeting and City Council.

Q.Okay.I'm not clear about that.Can you say that one more time quickly?You said that at the end of — say that again?

A.At the end of Council meetings as well as committee meetings.

Q.Okay.

A.Any member of the public generally speaking is allowed to fill out a card and have two minutes.

Q.All right.And is the City Council chambers, in fact, the people's chamber?

MR. COSGROVE: Objection THE COURT: Basis?

A.That's — MR. COSGROVE: That's a characterization of people's chamber.

Q.As a rule.

THE COURT: You can answer as best you can`answer.I believe the question is is it the people's chamber.

A.Okay.It's the people's chamber.

Q.And what does that mean, people's chamber?

A.It means that the elective body, the voice of the people, is the voice of those who are elected and who try to' discern the will of the people and, legislate on behalf of the common good.

Q.All right.And can you tell me on this particular date, May 23rd, 2001, isn't it a fact during the time Mr. Kirkland spoke, he was speaking on a nonagenda item?

A.I think that's right.

Q.Okay.

A.That is my memory.

Q.What is?

A.That's my memory.

Q.Okay.What is a non-agenda item?A.Presumably what you mean by that is he spoke at the end of the meeting as opposed to during the course of agenda items.

Q.What?

A.What weary to

Q.I was asking you what Was the difference.I think you were explaining about what a non-agenda item 18.

A.Well, what we like to do at the end of the meeting, on a non-agenda item opportunity, to speak is to give someone an ability to speak about anything they like.

Q.Anything they like.And when you say anything they like, what do you mean by that?

A.Well, the theory is that, you know, if somebody — if somebody, let's say, some person has a bad sewer in their neighborhood; or if somebody feels strongly that we need to care more about the mentally ill, you know; or mental health issues; or somebody cares about things; we should pay more attention to litter, you know; it's an opportunity for people to come down and sort of put things on the table that normally wouldn't be on the table in the course of a regular agenda.

Q.Now, would that include someone who is upset or angry about the Police Chief using the "n" word?

A.Sure.

Q.Okay.And, okay, if someone used that speech and specifically used the "n" word in context of explaining something that they're unhappy about, would that be acceptable?

A.I think its highly circumstantial.

Q.And it depends on what?

A.You know, if you are reading Huckleberry Finn, and you use the word in specific context, I think it depends.

Q.Just depend?

A.It depends on the circumstances.

Q.All right.

A.Obviously, I think as a general rule, especially in a City Council meeting which since it is aired on TV, a lot of times people at home flip through channels and see it.And I think that it world be almost never appropriate to use that word in City Council meetings.But, sure, hypothetically speaking, you would have a circumstance where you were reading something else that somebody else said.Something like that.

THE COURT: Very well.

A.Huckleberry.Finn.

THE COURT: Very well.

MS. CRAWFORD: Thank you, sir.

Q.And on this particular date were you the one who gave William Kirkland the privilege of the floor for two minutes?

A.Probably.I usually at the end of the meeting am the one who will...