Schneider v. Town of Campbell, 16-cv-208-jdp
| Decision Date | 29 December 2017 |
| Docket Number | 16-cv-208-jdp |
| Parties | FREDERICK P. SCHNEIDER, Plaintiff, v. TOWN OF CAMPBELL, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Plaintiff Frederick Schneider brought this lawsuit after he was arrested for displaying signs and flags on a highway overpass in Campbell, Wisconsin. Schneider asserted numerous claims under federal and state law against the Town of Campbell, La Crosse County, and several law enforcement officers, but the court dismissed all but one claim at summary judgment. Dkt. 85. Schneider's remaining claim is that the ordinance under which he was arrested violates his right to free speech under the federal and state constitutions. The court stayed a decision on that claim pending resolution of the appeal in Luce v. Town of Campbell, 113 F. Supp. 3d 1002 (W.D. Wis. 2015), which involved a challenge to the same ordinance. Now that the court of appeals has decided the appeal and returned the mandate, Luce v. Town of Campbell, 872 F.3d 512 (7th Cir. 2017), the stay can be lifted.
Although this court issued multiple orders reminding the parties not to file additional motions while the case was stayed, Dkt. 90 and Dkt. 97, Schneider filed five: (1) a "third motion for summary judgment," Dkt. 92; (2) a "motion for reinstatement of law license and direct clerk to send certificate of good standing to 11th Circuit US Court of Appeals," Dkt. 96; (3) a "motion to withdraw appearance," Dkt. 98; (4) a "motion to appear and for other purposes," Dkt. 99; and (5) a "motion for attorney fees and costs," Dkt. 101. For the reasons explained below, the court will deny all of these motions, with the exception of counsel's motion to withdraw. And because Luce makes it clear that Schneider cannot prevail on his remaining claim, the court will grant summary judgment in favor of the town.
In February 2017, the Indiana Supreme Court suspended Schneider's counsel's law license and it remains suspended at this time. Counsel has filed three motions arising out of the Indiana Supreme Court's decision.
First, he filed a "motion to reinstate law license" after the clerk of court in this district refused to send a certificate of good standing to the Court of Appeals for Eleventh Circuit in light of the Indiana Supreme Court's decision. Under Rule 1 of this court's local rules, Available at http://www.wiwd.uscourts.gov/local-rules. Counsel asked the court to "reinstate [his] license so that [he] may finish this case for Mr. Schneider." Dkt. 96, at 4. He also asked the court to "direct the Clerk to send an active in good standing certificate to the 11th Circuit U.S. Court of Appeals." Id. at 5.
Second, without rescinding his previous motion, counsel moved to withdraw from the case on the ground that he is "not active in good standing before this court." Dkt. 98. Third, without rescinding his motion to withdraw, counsel filed a "motion to appear and for otherpurposes," in which he argued that his "suspension" in this court was "invalid" because he did not receive notice and hearing. Dkt. 99.
From these motions, the court's understanding is that counsel is challenging the application of this court's Local Rule 1 to the discipline he received from the Indiana Supreme Court. But this court already addressed that issue in a separate lawsuit that counsel filed. Straw v. U.S. District Court for the Western District of Wisconsin, No. 17-cv-842 (W.D. Wis. Dec. 1, 2017), Dkt. 7. In that case, the court concluded that counsel was not entitled to notice and hearing in this district because he had an opportunity for a full and fair hearing by the Indiana Supreme Court. Id. That is a sufficient ground for denying counsel's request to allow him to continue practicing in this district.
Even if the court were to consider the merits of counsel's new filings, he has not shown that he is entitled to relief. Although he says that the Indiana Supreme Court discriminated and retaliated against him, he does not support that allegation with any evidence and he does not challenge the court's reasons for disciplining him. In particular, he does not deny that he raised frivolous claims and arguments in four lawsuits. He points to a decision in which the Virginia State Bar Disciplinary Bar declined to suspend his license, but that disagreement does not show that the Indiana Supreme Court was wrong or failed to provide counsel due process. In the absence of any argument from counsel as to why the Indiana Supreme Court's decision was incorrect, this court sees no reason to make an exception to its reciprocal discipline rule. The court will deny counsel's request to refrain from applying Local Rule 1 and grant counsel's motion to withdraw from the case.
This conclusion means that counsel was not authorized to file his motion for summary judgment or his motion for fees. But even if counsel had been authorized to file those motions, the court would deny both of them, for the reasons explained below.
The court considered the following claims in its March 15, 2017 opinion on the parties' cross motions for summary judgment: (1) a Town of Campbell ordinance prohibiting signs and other displays on certain highway overpasses violates the First Amendment and the Wisconsin Constitution; (2) defendants violated the First Amendment, the Fourth Amendment, and the Wisconsin Constitution when they arrested Schneider for violating the ordinance; (3) defendants violated the Fifth Amendment and the Wisconsin Constitution by "restricting [Schneider's] liberty"; (4) defendants violated Schneider's right to due process; (5) defendants violated his right to equal protection by enforcing the ordinance against him but not a local inn; (5) defendants conspired to violate Schneider's constitutional rights; (6) the county had an unconstitutional policy; (7) defendants violated the Americans with Disabilities Act and the Rehabilitation Act when they arrested Schneider; and (8) defendants committed various common law torts against Schneider. Dkt. 85.
The court granted defendants' summary judgment motion as to all of these claims, with one exception. As to Schneider's claim that the ordinance was unconstitutional, the court stayed a decision pending resolution of the appeal in Luce.
In Luce, 872 F.3d 512, the court of appeals considered the constitutionality of two parts of the ordinance: one provision that banned displays "on" certain highway overpasses and another provision that banned displays "within one hundred (100) feet" of those overpasses. The court upheld the first provision on the ground that it was a reasonable time, place, andmanner restriction in light of the risk that highway displays could cause an accident, but the court remanded the case to the district court for further proceedings to determine whether the town could justify the ban of displays within 100 feet of the overpasses, id. at 517-18.
Luce forecloses Schneider's remaining claim. It is undisputed that Schneider was displaying signs and flags on the highway overpass, Dkt. 85, at 3, so his conduct was not protected by the First Amendment under the holding in Luce. And unlike the plaintiffs in Luce, Schneider has not alleged that he has any intention of displaying signs within 100 feet of an overpass, so he does not have standing to challenge that portion of the ordinance. ACLU of Illinois v. Alvarez, 679 F.3d 583, 590-91 (7th Cir. 2012) () (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).
Schneider does not directly challenge these conclusions in his new summary judgment motion, but he nevertheless contends that he is entitled to judgment as a matter of law on numerous grounds. Many of the issues Schneider raises were resolved in the March 2017 opinion and the court declines to revisit those issues. But two issues are at least arguably related to the remaining claim: (1) "the police chief [Andrew Gavrilos] should have allowed Schneider to do his displays off of the overpass if he so chose instead of arresting him," Dkt. 93, at 4; and (2) Luce is distinguishable because the highway in that case had a higher speed limit. Neither of these contentions has merit.
The first contention fails because it is not a challenge to the constitutionality of the ordinance. Rather, it is a claim that Gavrilos violated Schneider's rights by failing to give himthe option of displaying signs at a different location. But the court already dismissed Gavrilos from the case on the ground that he did not violate Schneider's clearly established rights and Schneider does not seek reconsideration of that decision. Thus, this claim is outside the current scope of the case. It is also outside the scope of the complaint because Schneider did not raise the claim before now.
In any event, the claim is frivolous. As discussed in the March 2017 opinion, in determining the constitutionality of an arrest, the question is whether the officer had probable cause that the suspect had violated the law. Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008). As also discussed in that opinion, Gavrilos had probable cause because he reasonably believed that Schneider was displaying signs on a highway overpass covered by the ordinance. That is...
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