Phelps-Roper v. City of Manchester, Mo.
| Decision Date | 08 September 2010 |
| Docket Number | Case No. 4:09-CV-1298 CDP |
| Parties | Shirley L. PHELPS-ROPER, et al., Plaintiffs, v. CITY OF MANCHESTER, MISSOURI, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Anthony E. Rothert, American Civil Liberties Union of Eastern Missouri, St. Louis, MO, for Plaintiffs.
Evan Z. Reid, Neal F. Perryman, Lewis Rice, Patrick R. Gunn, Gunn and Gunn, St. Louis, MO, for Defendant.
Plaintiffs Shirley Phelps-Roper and Megan Phelps-Roper bring this action under 42 U.S.C. § 1983 against the City of Manchester, Missouri, claiming that a Manchester city ordinance violates their First Amendment right to free speech. Plaintiffs are members of the Westboro Baptist Church in Topeka, Kansas, whose teachings include the beliefs that homosexuality is a grave sin and American society's acceptance of homosexuality prompts God's wrath. In order to express these beliefs, plaintiffs and other WBC members have picketed funerals for years, including more recently the funerals of American soldiers. In response to plaintiffs' activities, the City of Manchester enacted a city ordinance prohibiting pickets and protests within 300 feet of a funeral or burial service in Manchester. After this lawsuit was filed, the City twice repealed and enacted new versions of the ordinance, which is codified as § 210.264 of the City of Manchester Code of Ordinances.
For the reasons that follow, I conclude that the Manchester ordinance in all three versions violates plaintiffs' First Amendment right to free speech, and so I will grant judgment to plaintiffs and enjoin enforcement of the ordinance. I will also deny Manchester's motions to strike.
Plaintiffs Shirley Phelps-Roper and Megan Phelps-Roper are members of the Westboro Baptist Church in Topeka, Kansas. The Church's teachings include the beliefs that homosexuality is a grave sin, American society's acceptance of homosexuality causes God's wrath, and God is killing American soldiers out of wrath for society's acceptance of homosexuality. Plaintiffs have expressed these beliefs for several years by picketing and protesting funerals, because they believe this public platform is the only place where they can express themselves in a timely manner to their intended audience—funeral attendees. Their pickets and protests are conducted on public streets and sidewalks.
In response to plaintiffs' pickets and protests, defendant City of Manchester, Missouri enacted a city ordinance on March 5, 2007 that prohibited pickets and protests within 300 feet of funerals or burial services within Manchester. Specifically, the original ordinance made it unlawful:
for any person to engage in picketing or other protest activities within three hundred (300) feet in front of or about any location at which a funeral is held, within one (1) hour prior to the commencement of any funeral and until one (1) hour following the cessation of any funeral.
City of Manchester Ordinance no. 07-1746 (codified at Manchester, Mo., Code of Ordinances § 210.264) (repealed September 21, 2009). Plaintiffs became aware of the ordinance soon after its enactment and chose not to picket in Manchester out of fear of prosecution. In particular, plaintiffs planned to picket funerals that they mistakenly believed were being held in Manchester in January of 2009, but they abandoned those plans because of the ordinance.
Believing that their First Amendment rights had been violated, plaintiffs filed this lawsuit in August of 2009. Soon afterwards, Manchester repealed the original version of § 210.264 and enacted a second version on September 21, 2009. This version provided, in relevant part:
no person shall picket or engage in other protest activities, nor shall any association or corporation cause picketing or other protest activities to occur, within three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one (1) hour before or one (1) hour after the conducting of any actual funeral or burial service at that place. No person shall picket or engage in protest activities, nor shall any association or corporation cause picketing, or other protest activities to occur, within three hundred (300) feet of any funeral procession.
Manchester Ordinance No. 09-1955 (codified at Manchester, Mo., Code of Ordinances § 210.264) (repealed October 19, 2009). The second version defined "other protest activities" as "any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral procession." Id. Manchester then repealed the second version and enacted a third version on October 19, 2009, which remains in force. The current version is identical the second version except it omits the last sentence prohibiting picketing or protesting funeral processions. See Manchester Ordinance No. 09-1957 (codified at Manchester, Mo., Code of Ordinances § 210.264). Plaintiffs' Second Amended Complaint challenges all three versions of the ordinance.
After discovery ended, the parties filed cross-motions for summary judgment on the constitutionality of all three versions of the ordinance. Plaintiffs contend the ordinance in all its versions (1) is an unconstitutionally content-based regulation of speech; (2) is an unreasonable restriction on the time, place, and manner of speech that does not serve a legitimate government interest, is not narrowly tailored, and does not leave open ample alternatives for communication; and is impermissibly (3) overbroad and (4) vague. Manchester denies each of these claims, and also moves for summary judgment on the grounds that plaintiffs lack standing to sue and are collaterally estopped from litigating the ordinance's constitutionality by a Sixth Circuit decision upholding the constitutionality of a similar Ohio statute.1 Manchesteralso argues that plaintiffs' claims against the first two versions are now moot because these versions have been repealed. Finally, Manchester has moved to strike portions of plaintiffs' affidavits in support of their motion for summary judgment and their reply statement of facts.
In its first motion to strike, Manchester moves to strike portions of plaintiffs' affidavits, in which plaintiffs aver that they were chilled from exercising their First Amendment rights because of Manchester's ordinance. Manchester claims these statements are conclusory and improper under Fed.R.Civ.P. 56(e). I disagree. Rule 56(e) requires affidavits (1) to be "made on personal knowledge," (2) to set forth facts that would be admissible in evidence, and (3) to show that the affiant is competent to testify on the matters stated. Fed.R.Civ.P. 56(e); accord McSpadden v. Mullins, 456 F.2d 428, 430 (8th Cir.1972). I have reviewed plaintiffs' affidavits, and both contain sufficient factual details based on plaintiffs' personal knowledge—including plaintiffs's decision not to picket Manchester while picketing in other places in the Saint Louis area.
In its second motion to strike, Manchester requests that I strike plaintiffs' reply statement of facts, because plaintiffs have not moved for leave to file this statement pursuant to Local Rule 7-4.01(E) of the Local Rules for the United States District Court for the Eastern District of Missouri. But Manchester has not shown any prejudice resulting from plaintiffs' failure to move for leave, and nothing in the reply statement of facts has affected my decision in this case. Accordingly, I will deny both of Manchester's motions to strike.
Manchester also contends that plaintiffs' claims against the first and second versions of the ordinance are now moot, because the city has repealed those versions. As a general rule, cases become moot when the issues are no longer "live," or the "parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (internal citation and quotation marks omitted). A case is not moot, however, if (1) the challenged action was too short in duration to be fully litigated before its cessation; and (2) there is a reasonable expectation that plaintiff will be subjected to the same action. Id. at 483, 102 S.Ct. 1181; accord Kirkeby v. Furness, 92 F.3d 655, 661 (8th Cir.1996). Here, the first and second versions of the Manchester ordinance were repealed after plaintiffs filed their complaint in August of 2009: the first version was repealed on September 21, 2009, and the second on October 19, 2009. Additionally, there is no indication that Manchester will refrain from re-enacting these versions at some future date. Plaintiffs' claims against the first and second versions of the ordinance are therefore not moot.
Manchester next asserts that plaintiffs lack standing to challenge the ordinance,because they have never picketed in Manchester and cannot name a funeral they plan to picket in the future. Plaintiffs respond that they have made a sufficient showing of their intent to picket in Manchester and Manchester's willingness to enforce the ordinance. I agree with plaintiffs.
District courts only have jurisdiction to consider actual cases and controversies. U.S. Const. art. III § 2; see also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Encompassed within Article III's case-or-controversy requirement is the requirement that parties have standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In the First Amendment context, a plaintiff has standing to challenge a regulation—even if she has not been cited for violating it—if she intends to engage in speech prohibited by the regulation, "and there exists a credible threat of prosecution" if she does engage in such speech. Babbitt v....
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