Powell v. Noble

• Decision Date: 14 August 2015
• Docket Number: No. 14–3039.,14–3039.
• Citation: 798 F.3d 690
• Parties: Jason POWELL, Plaintiff–Appellant v. Larry NOBLE, in his official capacity as Commissioner of Iowa Department of Public Safety ; Gary Slater, in his official capacity as Fair Secretary/Manager/CEO of Iowa State Fair; D. Smith, individually and in his official capacity as Officer for Iowa State Fair Patrol; Michael Cunningham, individually and in his official capacity as Trooper for the Iowa State Patrol, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

798 F.3d 690

Jason POWELL, Plaintiff–Appellant

v.Larry NOBLE, in his official capacity as Commissioner of Iowa Department of Public Safety ; Gary Slater, in his official capacity as Fair Secretary/Manager/CEO of Iowa State Fair; D. Smith, individually and in his official capacity as Officer for Iowa State Fair Patrol; Michael Cunningham, individually and in his official capacity as Trooper for the Iowa State Patrol, Defendants–Appellees.

No. 14–3039.

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2015.

Filed: Aug. 14, 2015.

Nathan Kellum, argued, Memphis, TN, for Plaintiff–Appellant.

Jeffrey C. Peterzalek, AAG, argued, Grant Keith Dugdale, David L. Dorff, AAG, on the brief, Des Moines, IA, for Defendants–Appellees.

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

Opinion

SHEPHERD, Circuit Judge.

Jason Powell brought a civil rights action pursuant to 42 U.S.C. §§ 1983 and 1988 against four Iowa officials—Larry Noble, Gary Slater, Doug Smith, and Michael Cunningham—after he was ejected from the Iowa State Fairgrounds while engaging in religious expression. Powell also moved for a preliminary injunction, which the district court granted in part and denied in part. Powell filed this interlocutory appeal challenging the denial. Having jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm the district court's denial of Powell's motion based on his First Amendment claim and remand the case to the district court to consider Powell's request for preliminary injunctive relief based on his due process claim.

I. Background

Powell is a Christian who contends that his beliefs compel him to publicly share his faith with others. To achieve this goal, Powell seeks out public places where he can find significant numbers of people near his home in Des Moines, Iowa, and shares his faith by wearing clothing bearing Christian messages, holding signs, engaging in open-air speech, and having conversations with individuals willing to speak with him. Powell asserts he does not try to draw crowds, interfere with traffic, conduct any form of demonstration, or otherwise cause a disturbance with his speech, but only seeks to share his message with those willing to receive it.

The events leading to this lawsuit occurred on August 15 and 16, 2013, when Powell went to the Iowa State Fairgrounds seeking to share his Christian message. The fairgrounds, which are owned by the State of Iowa and managed by the Iowa State Fair Board, cover approximately 435 acres in Des Moines and include campgrounds, fair facilities, and parking areas. The fairgrounds are the home of the Iowa State Fair, an annual event that attracts more than one million visitors per year. The fair takes place within a select portion of the fairgrounds, and fairgoers must pay admission to enter the fair.

The 2013 Iowa State Fair ran from August 8 to August 18. On August 15, Powell went to the fairgrounds in the late afternoon and positioned himself on a sidewalk on the west side of the fairgrounds, outside the paid admission area. Powell stood close to the intersection of East 30th Street and Grand Avenue near the main gate to the fair, Gate 11. During the fair, East 30th Street is open to vehicles and often heavily trafficked, while Grand Avenue is generally closed to automobile traffic. Vehicles drop off and pick up fairgoers at Gate 11. Des Moines police officers are stationed at Gate 11 during the fair to help control traffic. Powell stated he chose to stand in this location because it offered a convergence of pedestrian traffic, and indeed, of the approximately 86,000 people who attended the fair on August 15, about 30,000 people entered or exited through Gate 11. After choosing this location, Powell began sharing a religious message via oral presentation, a sign, an expressive t-shirt, and one-on-one conversations. Powell asserts he did not block any pedestrian traffic, create congestion, or otherwise cause a disturbance. Around 8:00 p.m., several uniformed Iowa State Fair Patrol Officers, including Appellee Smith, approached Powell and told him to leave the fairgrounds. He asked the officers to confirm whether he was standing on public property and they reiterated that he needed to leave the property immediately. Powell again tried to clarify why he was being asked to leave, and Smith told him he would be arrested for criminal trespass if he did not leave immediately. Smith also told Powell he could continue his expressive activities across the street on non-fairground property. Powell did not find the location across the street suitable for his purposes and left the area.

The next day, Powell returned to the fairgrounds in the late afternoon and stood in front of some public restrooms near Gate 15 on the north side of the fairgrounds, again outside the paid admission area. Gate 15 is near some of the primary parking areas for the fair, and the roadways in this area experience heavy vehicular and pedestrian traffic. Of the approximately 95,000 visitors who came to the fair on August 16, about 24,000 came through Gate 15. At this location, Powell began sharing his message by holding up a sign attached to an aluminum pole. He did not make an oral presentation. Powell asserts he was careful to stand in a spot where he was not blocking access to the restrooms or fair entrance. Shortly after 7:00 p.m., Fair Patrol Officers approached Powell and told him to leave. Powell asked why he had to leave, and the officers told him the fair owned the property and did not want him there. When Powell asked if he was on public or private property, one of the officers asked if he was the same person who caused a problem the prior day and then radioed the Iowa State Patrol, who sent Appellee Cunningham, an Iowa State Trooper, and another officer to the scene. Cunningham escorted Powell to a booking area inside the fair, where he told Powell he had committed trespass and issued him an ejection notice stating he was banned from the fair for its duration. Cunningham warned Powell to stay away and told him he would be charged with criminal trespass if he returned to the fairgrounds for any reason during the duration of the fair. Fearing arrest, Powell left and did not return to the fairgrounds during the 2013 fair.

In June 2014, Powell filed a complaint against four defendants: Smith and Cunningham, who were involved in ejecting him from the fair; Slater, the manager and CEO of the fair; and Noble, the Commissioner of the Iowa Department of Public Safety. The complaint alleged that Powell's ejection violated his free speech and due process rights. Powell also filed a motion for preliminary injunction asking the district court to enjoin the appellees from “applying [a] First Amendment ban on Powell's expression ... so as to prevent Powell and other disfavored third party speakers from engaging in protected expression on public sidewalks outside of the Iowa State Fair during the 2014 event and all other future Iowa State Fairs.” R. Doc. 3, at 1. Appellees resisted Powell's motion, arguing he failed to meet his burden of showing he was entitled to a preliminary injunction. In their response to Powell's motion, appellees stated that while the fair does not have any written rules regulating visitors' exercise of free speech during the fair, the fair does enforce two unwritten rules, which they described as follows: (1) “the activity must not impede the flow of people into, out of, or within the Fairgrounds;” and (2) “if a visitor brings a sign, the sign must not be attached to any kind of pole or stick due to safety concerns with the pole or stick being used as a weapon.” R. Doc. 12–4, at 2–3. Regarding the first rule, appellees explained that “[w]ith more than a million people visiting the fair each year, maintaining the flow of people throughout the Fairgrounds becomes a paramount concern. People standing in the entryways of the fairgrounds can impede or interfere with the flow of people.” R. Doc. 12–4, at 2–3. In his reply to the appellees' response, Powell argued that these unwritten rules are unconstitutional because they violate his First Amendment and due process rights. Powell asked the court to enjoin application of these rules, in addition to his earlier request that the court enjoin the “ban on Powell's expression on public ways outside [the] Fair.” R. Doc. 15, at 3.

The district court held a hearing on Powell's motion. Powell testified at that hearing, as did Slater and two Fair Patrol Officers who were involved in ejecting Powell from the fairgrounds, Rhonda Hummel and Terry Orr. Hummel testified she was dispatched to Gate 11 on the evening of August 15 because someone reported there was a person standing outside that gate impeding the flow of pedestrians. When Hummel arrived at Gate 11, she observed Powell standing approximately 15 feet from a ticket booth holding a poster-sized sign attached to a pole and obstructing pedestrian traffic on the sidewalk, causing pedestrians to enter the street to pass him. Hummel was not part of the conversation between Smith and Powell, but she observed Smith speak to Powell and then saw Powell leave the fairgrounds. Hummel testified she would not have been concerned about Powell impeding traffic if he had moved farther north or south of the main gate to less-congested portions of the fairgrounds. Orr was dispatched to Gate 15 on the evening of August 16 based on a report that there was an individual standing partially in the street who was impeding people from entering the fair. When Orr arrived at Gate 15, he observed Powell standing partially in the street, holding a sign attached to an aluminum pole, and stopping people as they tried to enter the fair. Orr asked Powell to leave the fairgrounds and told him he could cross the street to a convenience store to continue his speech. Orr testified he was not concerned about the metal pole Powell was holding, and while he was concerned that Powell was impeding traffic, he did not...