Shurtleff v. City of Bos., Civil Action No. 18-cv-11417-DJC

• Decision Date: 29 August 2018
• Docket Number: Civil Action No. 18-cv-11417-DJC
• Citation: 337 F.Supp.3d 66
• Parties: Harold SHURTLEFF et al., Plaintiffs, v. CITY OF BOSTON et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

337 F.Supp.3d 66

Harold SHURTLEFF et al., Plaintiffs,

v.CITY OF BOSTON et al., Defendants.

Civil Action No. 18-cv-11417-DJC

United States District Court, D. Massachusetts.

Filed August 29, 2018

Ryan P. McLane, McLane & McLane, LLC, Feeding Hills, MA, Horatio G. Mihet, Pro Hac Vice, Mathew D. Staver, Pro Hac Vice, Roger Gannam, Pro Hac Vice, Liberty Counsel, Orlando, FL, for Plaintiffs.

David J. Zuares, Catherine A. Lizotte, Robert S. Arcangeli, City of Boston Law Department, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

Denise J. Casper, United States District Judge

I. Introduction

Plaintiffs Harold Shurtleff and Camp Constitution ("Plaintiffs") have moved for a preliminary injunction against Defendants, the City of Boston and Gregory T. Rooney, in his official capacity as Commissioner of the City of Boston Property Management Department (collectively, "Defendants" or "the City"). D. 7. Plaintiffs seek to enjoin the City from denying permission to the Plaintiffs to display "the Christian flag" on a City Hall flagpole in conjunction with their Constitution Day and Citizenship Day event on or around September 17, 2018. D. 7 at 2. For the reasons discussed below, Plaintiffs' motion for a preliminary injunction, D. 7, is DENIED.

II. Standard of Review

"A preliminary injunction is an ‘extraordinary and drastic remedy.’ " Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v. Geren, 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ). To obtain a preliminary injunction, the Court must consider: (1) the movant's likelihood of success on the merits; (2) the likelihood of the movant suffering irreparable harm; (3) the balance of equities; and (4) whether granting the injunction is in the public interest. Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013). Plaintiffs "bear[ ] the burden of establishing that these four factors weigh in [their] favor." Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006) ; see Rivera-Vega v. ConAgra Inc., 70 F.3d 153, 164 (1st Cir. 1995) (quoting Pye ex rel. NLRB v. Sullivan Bros. Printers, 38 F.3d 58, 63 (1994) ) (noting that when the relief sought by the moving party "is essentially the final relief sought, the likelihood of success should be strong") (emphasis in original) (internal quotation marks omitted).

III. Factual Background

The following facts, largely undisputed, are drawn from the complaint, D. 1, Plaintiffs' motion for a preliminary injunction, D. 7-8, and the City's opposition, D. 11. The City owns and manages three flagpoles located in front of the entrance to City Hall, in an area called City Hall Plaza. D. 11 at 2; D. 11-1 ¶ 5. The three poles are the same height, approximately 83 feet tall. D. 11 at 2. One pole regularly displays the flags of the United States and the National League of Families Prisoner of War/Missing in Action ("POW/MIA") flag. Id. A second pole flies the flag of the Commonwealth of Massachusetts. Id. The dispute in this case centers on the third flagpole, which displays the City of Boston flag except when replaced by another flag—usually at the request of a third-party. Id. Such a request is often made in conjunction with a proposed third-party event to take place at a location owned by the City, one of which is City Hall Plaza. Id. Examples of other flags that have been raised on the third flagpole are country flags, e.g., the flags of Brazil, Ethiopia, Portugal, Puerto Rico, the People's Republic of China and Cuba, and the flags of private organizations, including the Juneteenth flag recognizing the end of slavery, the LGBT rainbow pride flag, the pink transgender rights flag, and the Bunker Hill Association flag. D. 8 at 3; D. 11 at 2. As Plaintiffs allege, the flag of Portugal contains "dots inside the blue shields represent[ing] the five wounds of Christ when crucified" and "thirty dots that represents [sic] the coins Judas received for having betrayed Christ." D. 1 ¶ 36. The City of Boston flag includes the Boston seal's Latin inscription, which translates to "God be with us as he was with our fathers." D. 1 ¶ 41(a). As Plaintiffs note, the Bunker Hill Flag contains a red St. George's cross. D. 1 ¶ 41(b). Many religious groups, including Plaintiffs, have held events at City-owned properties in the past. D. 8 at 4; D. 11 at 3.¹

To apply for a permit to raise a flag at City Hall and hold an event on a City-owned property, a party submits an application to the City. D. 11 at 3; D. 11-1 ¶ 13. The City has published guidelines on its website for applicants. D. 8 at 3; D. 11 at 3; D. 11-1 ¶ 13. The guidelines state that an application may be denied if the event involves illegal or dangerous activities or if it conflicts with scheduled events. D. 8 at 3-4; D. 11 at 3. In addition, an application may be denied if the applicant lacks an insurance certification, lies on their application, has a history of damaging city property or failing to pay city fees or fails to comply with other administrative requirements. D. 8 at 4; D. 11 at 3. After a party has submitted an application, the City reviews the request to ensure it complies with all guidelines. D. 1-8 at 2; D. 11 at 3; D.11-1 ¶ 15. The Commissioner of Property Management reviews applications for the City flagpole to ensure flag requests are "consistent with the City's message, policies, and practices." D. 11 at 3; D. 11-1 ¶¶ 16-17. The City does not have a written policy regarding the content of flags to be raised. D. 8 at 4.

On July 28, 2017, Plaintiff Shurtleff emailed the City on behalf of his organization, Camp Constitution, requesting to "raise the Christian flag on City Hall Plaza," accompanied by "short speeches by some local clergy focusing on Boston's history" on one of several dates in September 2017. D. 1-1. The email included a photograph of the Christian flag, D. 1-1, which "displays a red Latin cross against a blue square bordered on three sides by a white field." D. 1-4. On September 5, 2017, the City denied Shurtleff's request to raise the Christian flag without explanation. D. 1-3. Shurtleff asked for the "official reason" for denying the permit. Id. Defendant Rooney wrote to Shurtleff that "[t]he City of Boston maintains a policy and practice of respectfully refraining from flying non-secular flags on the City Hall flagpoles." D. 1-4. Rooney further explained that the City's "policy and practice" was based on the First Amendment prohibition on government establishing religion and the City's authority to decide how to use its flagpoles, which are a "limited government resource." Id. Rooney concluded that "[t]he City would be willing to consider a request to fly a non-religious flag, should [Shurtleff's] organization elect to offer one."Id. In response, Plaintiffs' counsel sent a letter to the City on September 14, 2017, taking the position that the denial was unconstitutional and declining to "submit a ‘non-religious’ flag." D. 1-6 at 2. Plaintiffs' counsel attached a second application for "Camp Constitution's Christian Flag Raising" on October 19 or October 26, 2017. D. 1-5. The stated purpose of the event was to "[c]elebrate and recognize the contributions Boston's Christian community has made to our city's cultural diversity, intellectual capital and economic growth." Id. The letter stated that if Plaintiffs did not receive a response by September 27, 2017, Plaintiffs would take "additional actions to prevent irreparable harm to the rights of [their] clients." D. 1-6 at 4. The City neither issued a permit to Plaintiffs nor responded to the letter. D. 8 at 5; D. 11 at 4. Since receiving the letter, Plaintiffs have not applied to hold further events on City-owned property, with or without a flag. D. 11 at 19-20.

IV. Procedural History

On July 6, 2018, Plaintiffs filed the present complaint seeking injunctive relief, declaratory relief and damages against Defendants. D. 1. On July 9, 2018, Plaintiffs moved for a preliminary injunction. D. 7. On August 9, 2018, the Court heard the parties on the pending motion and took this matter under advisement. D. 14.

V. Discussion

Plaintiffs have asserted six claims—three federal and three state constitutional: 1) a violation of the First Amendment free speech clause; 2) a violation of the First Amendment establishment clause; 3) a violation of the Fourteenth Amendment equal protection clause; 4) a violation of the freedom of speech clause of Article 16 of the Massachusetts Declaration of Rights; 5) a violation of the non-establishment of religion clauses of Articles 2 and 3 of the Massachusetts Declaration of Rights; and 6) a violation of equal protection under Articles 1 and 3 of the Massachusetts Declaration of Rights.²

As an initial matter, federal law governs the Court's analysis of the Plaintiffs' claims under both the United States and Massachusetts Constitutions. See, e.g., Commonwealth v. Barnes, 461 Mass. 644, 650, 963 N.E.2d 1156 (2012) (classifying the free speech provisions of Article 16 of the Massachusetts Declaration of Human rights as a "cognate provision" of the First Amendment); Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 243, 850 N.E.2d 533 (2006) (noting that "[t]he standard for equal protection analysis under [Massachusetts'] Declaration of Rights is the same as under the Federal Constitution"); Opinion of the Justices to the House of Representatives, 423 Mass. 1244, 1247, 673 N.E.2d 36 (1996) (explaining that the court's analysis under Article 2 of the Declaration of Rights of the Massachusetts Constitution was "based on the same standards applied under the establishment clause of the First Amendment"). Here, neither party has meaningfully cited to Massachusetts law to assess the constitutionality of the City's actions. In a single footnote, Plaintiffs assert that rights to freedom of expression are generally coextensive under the United States and Massachusetts Constitutions and that where the two diverge, the state protections...