Mayor of the City of Lansing v. Knights of the Ku Klux Klan

• Decision Date: 04 April 1997
• Docket Number: Docket No. 187765
• Citation: 564 N.W.2d 177,222 Mich.App. 637
• Parties: MAYOR OF THE CITY OF LANSING and City of Lansing, Plaintiffs/Counterdefendants-Appellees, v. KNIGHTS OF THE KU KLUX KLAN and David A. Neumann, Defendants/Counterplaintiffs-Appellants. (After Remand)
• Court: Court of Appeal of Michigan — District of US

Page 177

564 N.W.2d 177

222 Mich.App. 637

MAYOR OF THE CITY OF LANSING and City of Lansing Plaintiffs/Counterdefendants-Appellees, v. KNIGHTS OF THE KU KLUX KLAN and David A. Neumann Defendants/Counterplaintiffs-Appellants. (After Remand)

Docket No. 187765.

Court of Appeals of Michigan.

Submitted Feb. 4, 1997, at Lansing.

Decided April 4, 1997, at 9:45 a.m.

Released for Publication June 16, 1997.

[222 Mich.App. 639] Brian W. Bevez, Assistant City Attorney, Lansing, for Plaintiffs and Counter defendants-Appellees.

Mark Granzotto and Paul J. Denenfeld, Detroit, for Defendants and Counter plaintiffs-Appellants.

Before O'CONNELL, P.J., and MARKMAN and M.J. TALBOT, ^* JJ.

AFTER REMAND

MARKMAN, Judge.

Defendants, the Knights of the Ku Klux Klan and David A. Neumann, appeal as of right from an order granting summary disposition for plaintiffs, the mayor of the City of Lansing and the City of Lansing with regard to defendants' countersuit, which sought damages pursuant to 42 USC § 1983 and for malicious prosecution. We affirm.

On July 8, 1994, following the issuance of a state permit for a Klan rally to be held on the grounds of the Capitol building on July 23, 1994, plaintiffs filed a complaint for injunctive relief, asking the circuit court to order that the rally be held at an alternate site in light of various public safety concerns. Defendants counterclaimed, alleging that plaintiffs' initiation of the suit constituted an unconstitutional prior restraint on defendants' First Amendment rights, in violation of 42 USC § 1983 and the Michigan Constitution, and that the suit constituted malicious prosecution.

Plaintiffs' suit was prompted by the events attending defendants' previous rally on the Capitol grounds on April 23, 1994. Despite the presence of approximately five hundred uniformed state and city police officers and total expenditures of $147,000 in public funds (including $47,000 by the City of Lansing), the April rally triggered occurrences of public disorder and violence. The mayor testified that "the crowd got out of control," "police security was breached," and that the police "lost control," and a police officer testified that "there came a point in time where basically we had no control of the crowd." On the basis of this history, the mayor asked defendants to change the location of the rally to a nearby city park--a more defensible but also a more remote location in terms of the potential audience for defendants' message. Defendants rejected the offer. Plaintiffs then filed a complaint seeking injunctive relief, claiming that they would be unable to provide adequate police protection for the second rally as planned. The Ingham Circuit Court granted a preliminary injunction prohibiting the demonstration from being conducted on the Capitol grounds.

On appeal by defendants, a panel of this Court peremptorily reversed the circuit court's decision in an order that stated in relevant part:

Based upon the facts presented to this Court in the briefs of the parties and in the complaint and affidavits of plaintiff, the circuit court's July 21, 1994 preliminary injunction represents an abuse of discretion. The facts of this case do not justify enjoining defendant's exercise of its First Amendment rights in a quintessentially public forum, and we find that the preliminary injunction was not narrowly drawn to achieve a compelling state interest. Madsen v. Women's Health Center, Inc., [512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) ]; Forsyth County v. The Nationalist Movement, 505 U.S. [123, 112 S.Ct. 2395], 120 L.Ed.2d 101 (1992); Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988); Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988); Perry Education Ass'n v. Perry Local Educat[ors'] Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Christian Knights of the Ku Klux Klan [Invisible Empire, Inc.] v. District of Columbia, 972 F.2d 365 ( [ ]1992). Insulting and even outrageous speech must be tolerated in order to protect First Amendment freedoms. Boos v. Barry, 485 U.S. at 322 . The grounds of the State Capitol are both symbolic and directly relevant to defendant's intended message. The threat of violence relied upon by plaintiff is insufficient to prohibit entirely defendant's speech in the public forum chosen by defendant. [Mayor of the City of Lansing v Knights of the Ku Klux Klan, unpublished order of the Court of Appeals, entered August 2, 1994 (Docket No. 177118).]

Because of conflicting interpretations of the scope and effect of our interlocutory decision, the parties then brought cross motions for summary disposition in the trial court. Defendants claimed that this Court's decision overturning the preliminary injunction rendered plaintiffs' case moot and that defendants were entitled to partial summary disposition with respect to their § 1983 claim and to compensatory and punitive damages. Plaintiffs claimed that they were entitled to summary disposition with respect to the § 1983 claim because their request for injunctive relief had not been arbitrary or capricious and had sought only to impose a permissible restriction on the place the rally was to be held. Following oral argument, the trial court issued a written opinion and order granting plaintiffs' motion for summary disposition with regard to defendants' counterclaims, apparently pursuant to MCR 2.116(C)(10). The court concluded that plaintiffs could not be held liable under 42 USC 1983 for seeking an overly broad injunction and that defendants' malicious prosecution claim failed because they had not demonstrated that plaintiffs' suit lacked probable cause.

The only issue before us is the appropriateness of the trial court's grant of summary disposition in favor of plaintiffs with respect to the § 1983 counterclaim, because defendants do not challenge the dismissal of their malicious prosecution theory on appeal. This Court reviews decisions regarding motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 85, 520 N.W.2d 633 (1994).

MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to [judgment] as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Id.]

42 USC § 1983 provides that a person, including a public officer, acting under color of law who

subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Proper analysis of a § 1983 claim against a municipality requires examination of two issues: "(1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation." Collins v. Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 1066, 117 L.Ed.2d 261 (1992). Here, we assume that the harm to defendants--which consists of a time-shifting of the planned rally due to judicial adjudication of the First Amendment issues--was caused by a constitutional violation, because this Court reversed the preliminary injunction on First Amendment grounds. ¹ The issue before us, therefore becomes whether plaintiffs' action of seeking an injunction to limit the location of the rally "caused" the constitutional violation.

Here, plaintiffs' actions consisted exclusively of availing themselves of the legal process to try to limit the location of defendants' rally. The United States Supreme Court has recognized the validity under the First Amendment of injunctions placing narrowly-tailored time, place, and manner restrictions on speech. See Madsen, supra. ² Here, plaintiffs, having some reason to anticipate violence, attempted to strike at it preemptively by pursuing an injunction to limit the place of the planned rally to a more easily defended location. Plaintiffs presented a colorable claim that their proposed injunction constituted an appropriate time, place, or manner restriction on defendants' First Amendment rights and sought a court ruling with respect to the issue. ³

The direct "cause" of the constitutional violation here was the court's issuance of the overbroad injunction, not plaintiffs' pursuit thereof. If the court had denied the injunction, there would have been no constitutional violation. However, defendants argue that plaintiffs "caused" the constitutional violation because the court would not have issued the overbroad injunction unless plaintiffs had requested it. In other words, "but for" plaintiffs' lawsuit, the court would not have been prompted into taking its action.

Under federal law, the general rule is that if an injunction issues erroneously, any resulting irreparable injury is not redressable because the error was an act of the court, not of the party who sought the injunction. Detroit Newspaper Publishers Ass'n v. Detroit Typographical Union No. 18, Int'l Typographical Union, 471 F.2d 872, 876 (C.A.6, 1972). Similarly, in Michigan, at common law the general rule is that there is no tort liability for wrongfully suing out an injunction. In re Prichard Estate, 169 Mich.App. 140, 149, 425 N.W.2d 744 (1988). Federal and state court rules provide exceptions to this general rule. ⁴ Nevertheless, under the general rule, the act of filing a complaint seeking injunctive relief does not "cause" the erroneous issuance of the requested injunction for purposes of § 1983 because any erroneous issuance of an injunction is the...