National People's Action v. Village of Wilmette
| Decision Date | 03 October 1990 |
| Docket Number | No. 89-3446,89-3446 |
| Citation | 914 F.2d 1008 |
| Parties | NATIONAL PEOPLE'S ACTION, Plaintiff-Appellee, v. VILLAGE OF WILMETTE and Fred W. Stoecker, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Edward A. Voci, Chicago, Ill., for plaintiff-appellee.
Anne Lorenz, Garr & Associates, Gregory E. Rogus, Segal, McCambridge, Singer & Mahoney, Chicago, Ill., Robert J. Mangler, Wilmette, Ill., for defendants-appellants.
Before COFFEY, RIPPLE and MANION, Circuit Judges.
National People's Action (NPA) filed suit pursuant to 42 U.S.C. Sec. 1983 against the Village of Wilmette (Village), challenging the constitutionality of the Village's registration ordinance regulating door-to-door solicitation. NPA sought money damages and an injunction against further enforcement of the ordinance. The district court denied NPA's motion for a preliminary injunction against the Village's prohibition of solicitors who have been convicted of a felony within the previous five years, but the court granted NPA's motion for a preliminary injunction against the Village's requirement that prospective solicitors submit fingerprints on their application for registration. The appellants filed a timely notice of appeal. For the following reasons, we affirm.
NPA's complaint alleged that section 5-5.3 of the Village of Wilmette Code (registration of solicitors) violated its first amendment free speech rights because the fingerprinting requirement discouraged its employee-solicitors from applying for a solicitation permit. In addition, the complaint alleged that the ordinance was overly broad in prohibiting the registration as a solicitor of any person who had been convicted of a felony within the previous five years.
The district court denied a preliminary injunction regarding the prohibition against the registration of felons. It granted a preliminary injunction regarding the fingerprinting requirement. The Village and Police Chief Stoecker appealed the grant of the preliminary injunction. 1 On November 17, 1989, the appellants moved in this court for an order staying the preliminary injunction. A motions panel of this court denied the stay on December 14, 1989.
The first witness at the hearing on the preliminary injunction was Fred Stoecker, the chief of police for the Village. He testified that a prospective solicitor was required to submit a registration application and to be fingerprinted in the lobby of the police station. 2 Chief Stoecker acknowledged that the fingerprints on the registration form (as opposed to special fingerprint cards) could not be used for classification purposes. Upon questioning by the court, Chief Stoecker testified that the fingerprinting requirement served two purposes: to use for comparison purposes in the event a solicitor is suspected in a crime, and to receive more accurate information on the registration form. When the court asked Chief Stoecker to clarify the latter purpose, the following colloquy ensued:
Q. [by the court] What is the basis for your belief that if fingerprints are required on that form the information that you get from the person seeking to be a solicitor in your town will be more accurate?
A. We have had many occasions when we are asked for applications and they are sent in, information is sent in, and once solicitors come into the building and see the process they leave.
Q. So that is the basis for that belief?
A. Yes.
The court also received testimony from Frederick Clauser, the deputy chief of police, who stated that he was unaware of any occasion in which the fingerprints on the registration forms were used to confirm that a solicitor had committed a crime, although he believed that it would be feasible to use the fingerprints in that manner. 3 Finally, several NPA solicitors testified that they refused to give fingerprints at the police station because the process was associated with having committed a crime. Rather than be fingerprinted, the solicitors chose not to solicit in Wilmette.
On November 2, 1989, the district court issued oral findings of fact in support of its decision to grant a preliminary injunction. The court summarized its conclusion as follows: "The Court is not convinced that the requirement serves any useful purpose and, further, it finds it significantly deters qualified solicitors from coming into the village." Tr. of Nov. 2, 1989 at 6. In addition, the court found that the evidence at the hearing indicated that the fingerprints were not used to check identification, and that the Village had other means available to check if the applicants had a criminal record. With respect to the use of the fingerprints in later criminal investigations, the court concluded:
The only possible use of these prints for a legitimate government purpose might be in solving a crime where latent prints were found at the scene, however, because of the way the prints are taken such use here is problematic. Further, the evidence does not reflect that this has ever happened in Wilmette.
We conclude that the village fingerprint requirement at best only slightly serves some kind of a government interest, that it has the effect of chilling proper solicitation, and in fact is used by Wilmette for that very purpose.
The standards that apply to a grant of a preliminary injunction are well established. Initially, the district court must consider a number of factors in deciding whether to grant a preliminary injunction:
Before a preliminary injunction will issue, the movant must show, as a threshold matter, that: (1) they have no adequate remedy at law; (2) they will suffer irreparable harm if the injunction is not granted; and (3) they have some likelihood of success on the merits in the sense that their "chances are better than negligible." Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-87 (7th Cir.1984); see also Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). If the movant can meet this threshold burden, the inquiry then becomes a "sliding scale" analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits.
Ping v. National Educ. Ass'n, 870 F.2d 1369, 1371 (7th Cir.1989) (emphasis in original).
The standard that we apply to review the district court's determination is "tailored to the various functions that the district court must perform in fulfillment of its responsibilities." Thornton v. Barnes, 890 F.2d 1380, 1384 (7th Cir.1989). This court summarized this review as follows:
[T]he preliminary injunction decision involves the resolution of a number of different issues, some of which are non-discretionary; others, like the final weighing and balancing of the equities, are classically left to the discretion of the district judge. Appellate review therefore must vary with the nature of the lower court decision. When a court of appeals considers a preliminary injunction order, which should set forth the judge's reasoning under Fed.R.Civ.P. 65(d), the factual determinations are reviewed under a clearly erroneous standard and the necessary legal conclusions are given de novo review. SEC v. Suter, 732 F.2d 1294, 1300 (7th Cir.1984); E. Remy Martin & Co. v. Shaw-Ross International Imports, 756 F.2d 1525, 1529 (11th Cir.1985). However, the ultimate evaluation and balancing of the equitable factors is a highly discretionary decision and one to which this court must give substantial deference. The variance in the standard of review expressed in Roland may, in part, be attributed to the existence of errors of law or fact. Clearly, a factual or legal error may alone be sufficient to establish that the court "abused its discretion" in making its final determination.
Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.1986); see also Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1014 (7th Cir.1990) (). Based on these standards, " ' "our review is limited to determining 'whether the judge exceeded the bounds of permissible choice in the circumstances, not what we would have done if we had been in his shoes.' " ' " Thornton, 890 F.2d at 1385 (quoting International Kennel Club, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1084 (7th Cir.1988) (quoting A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 906 (7th Cir.1986) (quoting Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 390 (7th Cir.1984)))); see also Cox v. City of Chicago, 868 F.2d 217, 219 (7th Cir.1989) (); David K. v. Lane, 839 F.2d 1265, 1271 (7th Cir.1988) ().
An ordinance that regulates first amendment activity must be "narrowly drawn." Village of Schaumberg v. Citizens for a Better Env't, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980); Hynes v. Mayor of Oradell, 425 U.S. 610, 617, 96 S.Ct. 1755, 1759, 48 L.Ed.2d 243 (1976). Also, the ordinance must be designed not to "unnecessarily interfer[e] with First Amendment freedoms." Schaumberg, 444 U.S. at 637, 100 S.Ct. at 836. " 'Precision of regulation must be the touchstone....' " Id. (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963)).
The Supreme Court, in dicta, has approved the use of identification devices as a requirement for receiving a solicitation permit. See Martin v. City of Struthers, 319 U.S. 141, 148, 63 S.Ct. 862, 866, 87 L.Ed. 1313 (1943); Cantwell v. Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed. 1213 (1940); see also Hynes, 425 U.S. at 618, 96 S.Ct. at 1759. This regulation is allowed because of the legitimate interests of the state to protect its citizens...
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