Schwitzgebel v. City of Strongsville, 1:94CV757.

• Decision Date: 28 August 1995
• Docket Number: No. 1:94CV757.,1:94CV757.
• Parties: H. Paul SCHWITZGEBEL, et al., Plaintiffs, v. CITY OF STRONGSVILLE, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

898 F. Supp. 1208

H. Paul SCHWITZGEBEL, et al., Plaintiffs, v. CITY OF STRONGSVILLE, et al., Defendants.

No. 1:94CV757.

United States District Court, N.D. Ohio, Eastern Division.

August 28, 1995.

COPYRIGHT MATERIAL OMITTED

William M. Saks, American Civil Liberties Union Of Ohio Foundation, Cleveland, OH, Alfred R. Cowger, Jr., Cleveland, OH, for H. Paul Schwitzgebel, James E. DeLong.

John Thomas McLandrich, Todd M. Raskin, Kimberly A. Brennan, Mazanec, Raskin & Ryder, Solon, OH, John D. Ryan, Office Of The Law Director, City of Strongsville, Strongsville, OH, for City of Strongsville, OH, Walter F. Ehrnfelt, Lee J. Colegrove, David Tomcho, Todd Shaw, Pamela Stephan, Robert Satterwaite.

Dennis B. Ehrie, Scott W. Spencer, Spencer & Ehrie, Columbus, OH, Michael E. Murman, Murman & Associates, Lakewood, OH, for Ohio Republican Party.

MEMORANDUM & ORDER

O'MALLEY, District Judge.

The two plaintiffs in this case, James DeLong and H. Paul Schwitzgebel, are both individuals who attended a presidential campaign rally held by the Bush-Quayle '92 Committee, Inc. The rally was held on the grounds of the Public Commons of the City of Strongsville, Ohio on October 28, 1992. At the rally, the plaintiffs held up signs protesting then-President George Bush's supposed inaction on the issues of AIDS research and funding. After a brouhaha ensued, plaintiffs were arrested. The charges against plaintiffs were eventually dropped.

Plaintiffs then filed this case, naming the following parties as defendants: (1) the City of Strongsville ("the City"); (2) Strongsville Mayor Walter Ehrnfelt, in both his individual and official capacities ("the Mayor"); (3) the Cuyahoga County Republican Central Committee; (4) the Bush-Quayle '92 Committee, Inc.; and (5) the five Strongsville police officers who were involved in the arrest of plaintiffs, in both their individual and official capacities ("the Police Officers").¹ In their first amended complaint, plaintiffs claim that defendants violated their First Amendment and Sixth Amendment rights under color of state law, in violation of 42 U.S.C. § 1983, and also claim that defendants are liable for false arrest under Ohio law.

The Bush-Quayle '92 Committee filed a motion to dismiss, and this Court granted that motion on October 13, 1994. The Cuyahoga County Republican Central Committee also filed a motion to dismiss, and this Court granted that motion on October 17, 1994.²

Subsequently, the remaining defendants filed a motion for summary judgment (docket no. 51). In response, plaintiffs filed a memorandum captioned "Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment, Motion for Reconsideration, Voluntary Dismissal of Sixth Amendment Claim, and Motion for Leave to File Brief Beyond Page Limitation" (docket no. 58). The Court frowns on such combinations and urges counsel to separate its motions from each other and from memoranda in response or reply. In any event, the Court rules on these two docket entries as follows:

1. plaintiffs' motion to voluntarily dismiss their Sixth Amendment claims (docket no. 58)³ is GRANTED;

2. plaintiffs' motion for leave to file a brief in excess of the page limitation (docket no. 58) is GRANTED;

3. plaintiffs' motion for reconsideration of the Court's Orders dismissing defendants Cuyahoga County Republican Central Committee and Bush-Quayle '92 Committee, Inc. (docket no. 58) is DENIED; and

4. defendants' motion for summary judgment on plaintiffs' First Amendment claims (docket no. 51) is GRANTED. The plaintiffs' remaining state law claims for false arrest are dismissed without prejudice.

Further, given the Court's grant of the remaining defendants' motion for summary judgment, which disposes of this case in its entirety, the outstanding motions for certification of the Court's earlier Orders (docket nos. 52 and 57) are DENIED as moot. For the same reason, defendants' supplemental motion for summary judgment (docket no. 63) and plaintiffs' motion to strike the supplemental motion (docket no. 66) are also DENIED as moot.

I.

The following material facts are not in dispute. On October 28, 1992, the Bush-Quayle '92 Committee ("the Committee") held a campaign rally in the Public Commons of the City of Strongsville, Ohio. The rally was authorized by a permit granted by the Mayor on October 27, 1992, in exchange for one dollar. The permit stated that "the use of the Commons shall be limited to the members of the Strongsville Republican Organization and their invitees who are holders of an invitation and the Strongsville Republican Organization is authorized to further restrict the use of the premises by category of invitation." On its application for the permit, the Strongsville Republican Organization stated that it expected about 10,000 people would attend the rally.

Before the rally took place, flyers were distributed announcing the rally. Across the top of the flyers was printed:

MAYOR WALTER F. EHRNFELT INVITES YOU TO COME AND SEE ... PRESIDENT GEORGE BUSH.

(Ellipsis in original). Tickets were also distributed, across the top of which was printed:

ADMIT ONE FAMILY

Mayor Walter F. Ehrnfelt

and the Republican Party

invite you to see and hear

PRESIDENT GEORGE BUSH

and the Oak Ridge Boys at

Strongsville Commons

It is not clear how these tickets were distributed, but apparently they were generally available to anybody who wanted one. For example, any student from the Strongsville High School who wished to attend the rally was permitted to leave school and transported to the Commons on City school buses.

As might be expected, the Strongsville Police Department made special preparations for the rally. The Strongsville Chief of Police placed defendant Sergeant Satterwaite in charge of a team of officers assigned to patrol the Commons. The police officers were also specifically directed to provide assistance to the federal Secret Service. Included on the team of police officers supervised by Satterwaite were defendants Stephan, Shaw, and Tomcho.

On the day of the rally, plaintiffs DeLong and Schwitzgebel went to the Strongsville Commons, bearing tickets. The Commons was surrounded by fencing, with gates through which all attendees had to pass. At each gate was stationed one Secret Service officer and one uniformed Strongsville police officer. The two lawmen at each gate examined all prospective attendees for items that might pose security risks. The officers generally forbade entrance to prospective attendees who were carrying lawn chairs, umbrellas, placards on sticks, and certain other personal property. Prospective attendees were also generally forbidden entrance if they were carrying any signs or wearing any buttons, even signs and buttons supportive of the Bush-Quayle ticket. Individuals were allowed inside the fenced area only if they agreed to leave any offending personal property at the gate. It is questionable whether the requirement that attendees not bring their own posters into the fenced area was really enforced for reasons of security: once inside the fenced area, placards saying "BUSH QUAYLE 92" or "BUSH" were made available to attendees. One result of this policy, of course, was to homogenize the display of placards held aloft by the crowd.

Both plaintiffs passed through the security check at the gate and were admitted into the fenced area. Although they had admission tickets, plaintiffs were not asked to present them. The security check did not uncover two small signs that plaintiffs had somehow concealed, and the plaintiffs carried these signs into the fenced area.

Upon gaining entrance to the restricted area, plaintiffs held up their signs. One of the signs stated: "The Government Has Blood On Its Hands! One AIDS Death Every 10 Minutes." The second sign contained a message printed over a picture of President Bush, reading: "1,500,000 DEAD FROM AIDS. STOP THIS MONSTER! ACT UP." Shortly after plaintiffs held their signs aloft, a small ruckus ensued. It is unclear exactly what happened, but it appears plaintiffs were surrounded by other rally attendees, who tried to block plaintiffs' signs with their own "BUSH" and "BUSH QUAYLE 92" signs. Amidst some pushing and shoving, one crowd member snatched DeLong's poster. Whether by chance or design, the squabble occurred near an area reserved for the press, and members of the press soon arrived and began to interview plaintiffs.

Officers Shaw and Tomcho were patrolling the Commons when they received a call from the Secret Service asking them to respond to a disturbance near the press area. The police officers arrived while plaintiffs were being interviewed. Officers Shaw and Tomcho proceeded to arrest plaintiffs and took them to the Strongsville Police Station. Photographs reveal that plaintiff Schwitzgebel was still carrying his sign as he was removed by the police, although Officers Shaw and Tomcho assert Schwitzgebel threw his sign into the crowd, after they told him he was under arrest. Officer Stepanovich states he received a radio report (which proved to be false) that two AIDS activists were sticking people with needles and had been arrested. Stepanovich went to the police station, observed the plaintiffs being booked and put in jail, and then returned to the rally.

As a result of their actions at the rally, plaintiffs were charged with various misdemeanor offenses. Later, all of these charges were dropped. Plaintiffs then filed this law suit. Based on these undisputed facts, the City, the Mayor, and the Police Officers (that is, all of the remaining defendants) now seek summary judgment.

II.

Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as

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