Roe v. Milligan

• Citation: 479 F.Supp.2d 995
• Decision Date: 27 March 2007
• Docket Number: No. 4:06-cv-00300.,4:06-cv-00300.
• Parties: Scott Wayne ROE and Dale Klyn, Plaintiffs, v. Officer Mark L. MILLIGAN, and Sgt. Chris Logan, of the Ottumwa Police Department, in their personal and official capacities; The Ottumwa Police Department; and Alan Monroe Wilson, Wayne County Attorney, in his personal and official capacities, Defendants, State of Iowa, Intervenor.
• Court: U.S. District Court — Southern District of Iowa

Page 995

479 F.Supp.2d 995

Scott Wayne ROE and Dale Klyn, Plaintiffs, v. Officer Mark L. MILLIGAN, and Sgt. Chris Logan, of the Ottumwa Police Department, in their personal and official capacities; The Ottumwa Police Department; and Alan Monroe Wilson, Wayne County Attorney, in his personal and official capacities, Defendants State of Iowa, Intervenor.

No. 4:06-cv-00300.

United States District Court, S.D. Iowa, Central Division.

March 27, 2007.

COPYRIGHT MATERIAL OMITTED

Randall C. Wilson, Des Moines, IA, for Plaintiffs.

Gregory A. Witke, Bradshaw Fowler Proctor & Fairgrove, Hugh J. Cain, Hopkins & Huebner, Des Moines, IA, for Defendants.

Mark Hunacek, Ames, IA, Thomas J. Miller, Attorney General, Jeffrey C. Peterzalek, Assistant Attorney General, Des Moines, IA, for Intervenor.

ORDER ON PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION OF CONSTITUTIONAL CLAIMS

PRATT, Chief District Judge.

Before the Court is Plaintiffs, Scott Wayne Roe and Dale Klyn's ("Roe" and "Klyn") Motion for Summary Adjudication of Constitutional Claims, filed on December 5, 2006. Clerk's No. 17. On December 14, 2006, intervenor, the State of Iowa, filed a Motion for Partial Summary Judgment and Resistance to Plaintiffs' Motion for Summary Judgment¹ (Clerk's No. 19), to which all Defendants join. See Clerk's Nos. 20, 29. On January 8, 2007, Plaintiffs filed a reply. Clerk's No. 23. The matter is fully submitted. For the reasons discussed below, Plaintiffs' motion is DENIED as to their First Amendment challenge, and GRANTED as to their Fourteenth Amendment challenge.

I. FACTS

A. Scott Wayne Roe

The facts of this case are not in dispute. On June 4, 2006, Plaintiff Roe was engaged in a protest on his property. On his front lawn area, Roe displayed a United States flag in an inverted position² with the phrase "CORRUPTION OF BLOOD" in block letters written on it.³ Underneath the inverted flag, held up by a pole, Roe placed a life-size cardboard cut-out picture of a police officer. See Pls.' App. at D2 (re-enacted picture of protest). Roe's display was intended as "a protest of the ordinances that were being passed by the City of Ottumwa, Iowa and the manner in which they were being enforced." Pls.' Statement of Material Facts ¶ 5. Officer Mark Milligan ("Milligan") and Sergeant Chris Logan ("Logan") arrived at the scene after one of Roe's neighbors called the police to complain. After an extended discussion with Roe, Officer Milligan and Sergeant Logan required "Roe to remove the flag under threat of physical arrest." Id. ¶ 6. Roe removed the flag in response. Thereafter, Roe received a citation for violation of Iowa Code section 718A.1, which prohibits flag desecration. Roe was tried in the Iowa District Court in and for Wapello County on September 22, 2006. On November 30, 2006, Magistrate Kevin Maughan held that Iowa Code section 718A.1 was unconstitutional as applied to the facts of Roe's case, found Roe not guilty, and dismissed the matter.

B. Dale Klyn

Elsewhere in Iowa, in Wayne County, Plaintiff Klyn began flying his flag upside-down to signify distress both for what he considered an unfair loss in a bankruptcy proceeding, and in support of a campaign for mental health care services for military veterans. On July 7, 2006, Klyn received a criminal complaint in the mail. The complaint charged Klyn with disorderly conduct, specifically:

DISORDERLY CONDUCT, in violation of Iowa Code Section 723.4(6) ... in that ... [he] on, the 4th day of July, 2006, in Wayne County, did knowingly and publicly use the flag of the United States in a disrespectful manner by flying it upside down with the intent or reasonable expectation that such use will encourage or provoke another to commit a public offense.

Id. ¶ 30. Trial was set for August 30, 2006, in the Iowa District Court in and for Wayne County. On August 29, 2006, one day before trial, Alan Monroe Wilson ("Wilson"), the Wayne County Attorney, dismissed the criminal complaint against Klyn.⁴

II. RELEVANT STATUTES

718A.1 Desecration of flag or insignia.

Any person who in any manner, for exhibition or display, shall place or cause to be placed, any word, figure, mark, picture, design, drawing, or any advertisement of any nature, upon any flag, standard, color, ensign, shield, or other insignia of the United States, or upon any flag, ensign, great seal, or other insignia of this state, or shall expose or cause to be exposed to public view, any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag; ensign, great seal, or other insignia of this state, upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed, any word, figure, mark, picture, design, or drawing, or any advertisement of any nature, or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away, or for use for any purpose any article or substance, being an article of merchandise or a receptacle of merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached or otherwise placed, a representation of any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag, ensign, great seal, or other insignia of this state, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed, or who shall publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque, either by words or act, such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state, or who shall, for any purpose, place such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state, upon the ground or where the same may be trod upon, shall be deemed guilty of a simple misdemeanor.

Iowa Code § 718A.1 (2006) (hereinafter "flag desecration statute").⁵ 723.4 Disorderly conduct.

A person commits a simple misdemeanor when the person does any of the following:

. . .

6. Knowingly and publicly uses the' flag of the United States in such a manner as to show disrespect for the flag as a symbol of the United States, with the intent or reasonable expectation that such use will provoke or encourage another to commit a public offense.

Iowa Code § 723.4(6) (hereinafter "flag misuse statute").

III. STANDARD FOR SUMMARY JUDGMENT

Summary judgment has a special place in civil litigation. The device "has proven its usefulness as a means of avoiding fulldress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways." Mesnick v. Gen. Elec. Co., 950 F2d 816, 822 (1st Cir.1991). In operation, the role of summary judgment is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required. See id.; see also Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). "[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy ...." Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir.1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n. 5 (8th Cir.1975)). The purpose of the rule is not "`ut litigants off from their right of trial by jury if they really have issues to try,'" Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)), but to avoid "useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir.1976) (citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th Cir.1975)).

The plain language of Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The precise standard for granting summary judgment is well-established and oft-repeated: summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). The court does not weigh the evidence nor make credibility determinations, rather the court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Once the moving party has carried its burden, the nonmoving party must go beyond the pleadings and, by affidavits or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. See Fed. R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; A...