Reform Am. v. City of Detroit

• Decision Date: 17 June 2022
• Docket Number: 21-1552
• Parties: REFORM AMERICA ; Mark Harrington, Plaintiffs-Appellants, v. CITY OF DETROIT, MICHIGAN; Darin Szilagy, individually and in his official capacity as a Police Commander, City of Detroit Police Department; Kurt Worboys, individually and in his official capacity as a Police Captain, City of Detroit Police Department; Ronald Lach, individually and in his official capacity as a police officer, City of Detroit Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

37 F.4th 1138

REFORM AMERICA ; Mark Harrington, Plaintiffs-Appellants,

v.CITY OF DETROIT, MICHIGAN; Darin Szilagy, individually and in his official capacity as a Police Commander, City of Detroit Police Department; Kurt Worboys, individually and in his official capacity as a Police Captain, City of Detroit Police Department; Ronald Lach, individually and in his official capacity as a police officer, City of Detroit Police Department, Defendants-Appellees.

No. 21-1552

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2022

Decided and Filed: June 17, 2022

ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellants. Sheri L. Whyte, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellees. ON BRIEF: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellants. Sheri L. Whyte, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellees.

Before: McKEAGUE, STRANCH, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

Reform America, a nonprofit corporation that does business as Created Equal, is an organization that engages in anti-abortion protests. To that end, the group and its founder, Mark Harrington, sought to demonstrate at the Democratic Party's presidential-primary debates in Detroit, Michigan, in the summer of 2019. In response to security concerns, however, the Detroit Police Department ("DPD") imposed and enforced several measures that impeded the group's speech. A "restricted area" blocked access to the debate venue's immediate vicinity. Protestors were divided into "right-leaning" and "left-leaning" camps and were barred from commingling. And Harrington himself was even briefly detained after a confrontation with police.

Fed up with the speech restrictions, Harrington and his group eventually abandoned the site for good. They also filed a federal complaint alleging violations of the First and Fourth Amendments and the Equal Protection Clause of the Fourteenth Amendment. But the district court granted summary judgment to defendants—the City of Detroit and three individual officers—reasoning that no constitutional violations occurred. Likewise discerning no violations, we affirm.

I.

On July 30 and 31, 2019, candidates for the Democratic Party's nomination in the 2020 presidential election gathered for a pair of televised debates at the Fox Theatre in Detroit. Given the political salience of the event, it attracted many attendees, as well as protestors of all ideological stripes. Among the latter was Created Equal. As part of its effort to expose what it terms "the atrocity of abortion," the group says that it often attends public events to display posters with graphic images of aborted fetuses, distribute anti-abortion literature, and "engag[e] in civil discussions with those who support abortion." And during the events in question, group members hoped to do so in the debates’ immediate vicinity, where they believed their message would have the greatest impact.

Yet the group would soon encounter several obstacles to its plan. After the Democratic National Committee had selected Detroit as the debates’ location, media and law enforcement began to collaborate on how to successfully execute the event. Together, DPD, the United States Secret Service, the Department of Homeland Security, CNN (which would televise the debates), and Olympia Entertainment (which owns and operates the Fox Theatre), devised a surrounding "restricted area" to protect the candidates and ensure order. The geographic scope of that area is depicted with red and black lines on the diagram below.¹ All told, it comprised the Fox Theatre itself, the nearby parking lot of the St. John's Church, the two Comerica Park parking lots to the east, and three additional blocks to the south. The restricted area thus totaled just under eight square blocks.

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Realizing that hosting twenty leading politicians could foster potential threats, DPD's officers took several measures to secure the restricted area. It was swept for explosives and closed to vehicular traffic. Though pedestrians did not have to undergo a security screening to enter the restricted area, they could do so only if they held either media credentials or tickets for the debate.² Even for ticketholders permitted into the restricted area, the police prohibited protest activities. Though protestors were free to speak and handbill almost anywhere outside the restricted area, the only speech activities permitted within it unfolded at a "candidate support corral" that CNN had established at one of the privately owned Comerica Park parking lots depicted above. And when those supporters of Democratic candidates strayed from the "corral" to demonstrate elsewhere in the restricted area, DPD officers promptly escorted them back.

Members of Created Equal discovered all this at about 6 p.m. on July 30, when they arrived to begin their protest. They first sought to enter the restricted area from the north, near where the above diagram shows the intersection of Fisher Freeway and Woodward Avenue (the road that bisects the restricted area). When group members arrived at the boundary of the restricted area, DPD Sergeant Jay Everitt asked them—as captured on Harrington's own bodycam footage—"You got a ticket?" Harrington responded, "No." Everitt then informed the group that it could not access the restricted area without presenting the proper credentials. Harrington loudly objected that the officers had established a "police state," but he and the group eventually walked away.

Moving eastward, the group next tried to enter the restricted area from the eastern side of Woodward Avenue. But it was intercepted again by DPD officers; this time, Officers Allyne and Thomas. Officer Allyne asked the group if its members held tickets to the debate. Harrington responded, "No. We just have the First Amendment." When officers explained that entry into the restricted area required tickets, Harrington again objected that "this isn't Venezuela" or a "police state." He also began to argue with DPD Captain Kurt Worboys, who had been standing near Officer Allyne. Soon after, another officer, Lieutenant Brandon Cole, began to explain that the group was free to protest anywhere it wanted outside the restricted area or within "free speech areas" about three blocks south, in Grand Circus Park. Harrington objected once again to the restrictions, but the interaction broke off and the group continued to walk eastward.

Created Equal then ventured into the parking lot of the St. John's Church, enclosed in the above diagram with red lines. Once there, group members briefly displayed their signs by leaning them against the parking lot's fence so that they faced Woodward Avenue. Seeing this, however, Captain Worboys and Officer Cole told the group that the church parking lot was private property and that Created Equal was not permitted to be there. Yet rather than leave, Harrington objected that several media personnel were freely operating within the lot. He also argued that he could not be made to leave until the property owner had personally instructed him to. Captain Worboys responded that the "owner" (technically, an Olympia affiliate leasing the lot to host the media personnel present) had already informed officers that it did not want Created Equal on the premises.

Having noticed the unfolding altercation, DPD Commander Darin Szilagy stepped in. Commander Szilagy was then serving as DPD's "tactical lead," charged with maintaining the integrity of the restricted area and coordinating the response to potential emergencies. Szilagy likewise informed Harrington that someone from Olympia had requested that the group leave. Szilagy also explained that DPD was not biased against Created Equal's speech but simply wanted to maintain event security by enforcing the restricted area. After Harrington again objected that officers were permitting the media (but not Created Equal) to remain in the lot, Captain Worboys explained that CNN was allowed to be there because it had paid to do so.

Still, however, Harrington refused to leave the church parking lot and continued to argue with officers. Commander Szilagy responded that he did not "have time" for the discussion and ordered the surrounding officers to arrest Harrington. Officers held Harrington's hands behind his back and began to place him in flex cuffs. Yet Harrington relented and agreed to leave. Officers released him and escorted the group to the lot's exit—a large gap in the surrounding fence.

Created Equal next traveled about three blocks south to Grand Circus Park—the location of the "free speech areas." Upon their arrival, group members established a protest site in the park's western portion, labeled "Free Speech Area 2" (" FSA 2") on the above diagram. The group suffered no interference with its protest activities while it remained in FSA 2. Eventually though, group members decided that "Free Speech Area 1" (" FSA 1") to the east was the better protest site, as it had a clearer sightline to the Fox Theatre. Yet when they tried to move eastward across Woodward Avenue, Officer Ronald Lach and other members of DPD told them that they could either turn back to FSA 2 or be arrested. To reduce the potential for violence, DPD officers required that protestors for putatively "right-leaning" causes remain in FSA 2, while protestors for putatively "left-leaning" causes had to remain in FSA 1. A group member objected that officers were discriminating against Created Equal's speech because it "ha[d] a right to be over there." But the officers explained that, in fact, they were keeping the respective groups divided to maintain peace and safety. The group member again objected that the division was unconstitutional. Officer Lach responded "let it be unconstitutional then" and reiterated his "legal order" to turn back. After Harrington himself briefly argued with the officers, Created Equal returned to FSA 2.

As the...