Lytle v. Doyle
| Decision Date | 17 December 2001 |
| Docket Number | Civil Action No. 299CV1366. |
| Citation | 197 F.Supp.2d 481 |
| Parties | David LYTLE, Jeanette Lytle, and Joan Maguire, Plaintiffs, v. Jack DOYLE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Anthony S. Mulford, Davis & Brynteson, P.C., Chesapeake, Scott D. Cardani, Richmond, Michael J. DePrimo, Stephen M. Crampton, Brian Fahling, American Family Association, Center for Law & Policy, Tupelo, MS, for Plaintiffs.
Kevin O. Barnard, Gregory E. Lucyk, William H. Hurd, Mark L. Earley, Office of the Attorney General, Richmond, VA, for Defendant Jack Doyle, Etc.
Alison P. Landry, Kevin O. Barnard, Thomas J. Lambert, Gregory E. Lucyk, William H. Hurd, Mark L. Earley, Office of the Attorney General, Richmond, VA for Defendant Charles D. Nottingham, Etc.
Jack E. Cloud, Harold P. Juren, Office of the City Attorney, Norfolk, VA, for Defendant City of Norfolk, Virginia.
The plaintiffs, David Lytle, Jeanette Lytle, and Joan Maguire (collectively, the "Lytles"), have challenged the constitutionality of Virginia Code Section 46.2-930, which prohibits loitering on bridges designated by the Commonwealth's Commissioner of Transportation. The Lytles initially filed this action on August 27, 1999 to enjoin the enforcement of the statute on the grounds that it violates their First and Fourteenth Amendment rights. On November 2, 1999, the court issued an Opinion and Order granting the preliminary injunction. Currently pending before the court are cross-motions for summary judgment.
The defendants in this case are Jack Doyle, the Commonwealth's Attorney for the City of Norfolk; Charles D. Nottingham, the Commissioner of Transportation for the Commonwealth of Virginia (collectively, the "Commissioner"); and the City of Norfolk, Virginia (the "City").1 Plaintiffs allege that the Virginia statute is unconstitutional and seek nominal damages from the City under 42 U.S.C. § 1983. The motions have been fully briefed, and the court held a hearing on this matter on November 27, 2001. The court finds that there are no material facts in dispute, and the case can be decided on the summary judgment motions. For the reasons that follow, the court holds that the statute is unconstitutionally vague, but that the plaintiffs are not entitled to relief under 42 U.S.C. § 1983.
The Lytles are anti-abortion protestors who participated in a demonstration against abortion on July 16, 1999 on the Picadilly Overpass ("the Overpass"), a pedestrian bridge crossing Interstate 64 in the City of Norfolk. At the time, there were signs posted at the Overpass that prohibited loitering. The protestors demonstrated by holding large posters with messages opposing abortion. Lt. Charles Brewer, a police officer in the Norfolk Police Department, arrived at the Overpass with other officers and warned the protestors that they would be arrested for loitering if they did not halt their activities. After two protestors were arrested, the Lytles ceased their demonstration and left the Overpass. Following the July 16 demonstration, it was determined that the "no loitering" signs were erroneously posted at the Overpass without the consent of the Transportation Commissioner. On August 27, 1999, the Lytles filed a complaint under 42 U.S.C. § 1983, alleging violations of their constitutional rights and challenging the constitutionality of the statute under which the police threatened to arrest the plaintiffs.
The facts surrounding the incident on July 16, 1999 are more fully explained in the court's November 2, 1999 opinion granting the Lytles' motion for preliminary relief, and the December 22, 1999 opinion dismissing the claims against Lt. Brewer. However, additional facts are necessary to properly resolve the Lytles' claim for damages under 42 U.S.C. § 1983. In that claim, the Lytles allege that the City police acted pursuant to a policy, custom, or practice, for which the City should be held liable.
The Norfolk City Charter vests ultimate authority over the police department in the City Manager. As part of this authority, the City Manager established the following hierarchy of police department oversight:
1. City Manager
2. Deputy City Manager
3. Assistant City Manager
4. Chief of Police
5. Assistant Chief of Police
6. Captain
7. Lieutenant
8. Sergeant
9. Corporal
10. Officer II
11. Officer I
The Norfolk Police Department is split into a number of divisions, including three uniformed divisions: the First and Second Patrol Divisions and the Special Enforcement Division. The two patrol divisions were commanded by Assistant Chief of Police Joe Jackson at all times relevant to this case. The two patrol divisions are each commanded by a captain and are divided into three sectors, each of which is patrolled by a platoon commanded by a lieutenant. Every sector lieutenant has sergeants, corporals and police officers under his or her command. The Piccadilly Overpass is located in the Gold Sector of the Second Patrol Division. At all times relevant to this case, Captain Sharon Chamberlain commanded the Second Patrol Division, Lt. Betty Davis was the Gold Sector commander, and Lt. Brewer was the Blue Sector commander.
A general order prescribed by the City Manager in accordance with section 60 of the Norfolk City Charter governs the preparation, format, and distribution of all written directives in the Norfolk Police Department. These include rules and regulations, manuals, standard operating procedures, memoranda, and personnel orders. All orders, rules and regulations applicable to the entire Police Department must be approved by the City Manager. Only standard operating procedures and personnel orders may be approved by the Chief of Police. Standard operating procedures are defined in the General Order as "operating procedures for the particular unit or division" which "do not establish substantive rules or policies." See Oliver Dep. Ex. 4, p. 3. No one lower in rank than the Chief of Police is authorized to issue any written directives. Any operating procedure approved by the Chief of Police for a particular unit is subject to review by the City Manager, who has the final authority.
At least one of the plaintiffs demonstrated at the Piccadilly Overpass on two separate occasions before the incident that gave rise to this case. On July 25, 1997, the plaintiffs and other protestors assembled at the Overpass but were eventually ordered by State Police troopers and Norfolk police officers to leave. Unpersuaded, the plaintiffs returned approximately one year later on July 31, 1998, and resumed protesting. The Norfolk police again responded to the scene in response to a request from the Virginia State Police. The police instructed the protestors to leave because they believed the activity on the Overpass was adversely affecting the movement of traffic on the interstate, creating a dangerous traffic situation since the roads were slick from rain. No one was arrested at this time due to the uncertainty of any violations, but the officer reporting the incident to Captain Chamberlain noted that possible violations were "being researched." Captain Chamberlain notified her immediate superior, Asst. Chief of Police Jackson, of the "traffic circumstances" relating to this incident, but did not discuss the incident with any other superior officer. She also did not report the incident to anyone in the City Manager's office. Neither the City Manager, the Assistant City Manager supervising the Police Department, nor the Chief of Police had any knowledge of either incident until after this suit was filed. Similarly, Lt. Brewer, who was subsequently dispatched to the same location on July 16, 1999, had no knowledge of either incident.
Following the July, 1998 incident, Captain Chamberlain requested one of her sector lieutenants, Betty Davis, to investigate different options for handling the ongoing problems related to the use of the Overpass. Captain Chamberlain evidently spoke with an attorney from the Norfolk City Attorney's Office about the situation, and made notes during that conversation on post-it stickers.2 At some point in August, 1998, "no loitering" signs were posted at the Overpass, presumably by the Virginia Department of Transportation. Neither the City Manager, the Assistant City Manager overseeing the Police Department, nor the Chief of Police knew of the existence of these "no loitering" signs.
On August 7, 1998, Lt. Davis prepared a memorandum titled "Protestors on Pedestrian Bridge—(Norview and I-64)" (hereinafter "Davis Memo"). The Davis Memo instructs officers who observe protestors on the Overpass to "issue a summons for State Code 46.2-930 (Loitering on bridges)." The memo states that officers were to read to the protestors the following statement:
You are in violation of State Code 46.2-930 Loitering on bridges. If you do not leave this area you will be placed under arrest. Do you understand? (no compliance) You are under arrest.
See Pl. Br. Ex. J (internal quotations omitted).
Lt. Davis drafted the Davis Memo after conversations with Norfolk Deputy City Attorney Andre Allen Foreman and Assistant Commonwealth's Attorney Richard Bragg concerning laws that might apply to individuals disrupting traffic from pedestrian walkways over interstate highways. Lt. Davis left a copy of this memo for Captain Chamberlain, with a note stating that the original "was put in [the] book for the troops." This book referred to the Second Patrol Division's "roll call" book in which information for officers of that division was inserted. While officers of the division were supposed to look at the roll call book on a regular basis, there is no evidence that they did, and no evidence that the contents...
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