Thompson v. City of Clio

• Decision Date: 02 May 1991
• Docket Number: Civ. A. No. 90-T-908-N.
• Citation: 765 F. Supp. 1066
• Parties: Gene THOMPSON, Plaintiff, v. The CITY OF CLIO, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

765 F. Supp. 1066

Gene THOMPSON, Plaintiff, v. The CITY OF CLIO, et al., Defendants.

Civ. A. No. 90-T-908-N.

United States District Court, M.D. Alabama, N.D.

May 2, 1991.

Bruce Maddox, Paul R. Knighten, Montgomery, Ala., for plaintiff.

H.E. Nix, Jr., Alex Holtsford, Montgomery, Ala., for defendants.

ORDER

MYRON H. THOMPSON, Chief Judge.

Plaintiff Gene Thompson, a member of Clio, Alabama's city council, has brought this civil rights action against the city, its mayor, Bobby R. Cox, its police chief, Robert Ramsey, and police officers David Hinson and Richard Johnson, claiming that the defendants violated federal and state law by physically seizing his tape recorder during one city council meeting and forcibly removing him from another. Thompson rests his federal claims on the first and fourth amendments to the United States Constitution, as enforced through 42 U.S. C.A. § 1983 (West 1981), and his state law claims on Alabama law.¹ The court has jurisdiction over Thompson's federal claims under 28 U.S.C.A. §§ 1331 (West Supp. 1991) and 1343 (West Supp.1991) and over his state claims under the doctrine of pendent jurisdiction.

This cause is now before the court on defendants' motion for summary judgment. For the reasons set forth below, the court concludes that the motion should be denied, except with respect to Thompson's claim under the Alabama "open meetings" law, which is due to be dismissed.

I.

The facts in this case are brief, straightforward, and for the most part undisputed. Since 1988, when defendant Cox was elected mayor of Clio, he and Thompson, who was voted to the city council during the previous administration, have experienced political differences. Soon after Cox assumed office, Thompson began tape recording council proceedings because he did not trust the city clerk to keep accurately the minutes of these meetings. Cox initially voiced no objection to Thompson's use of a cassette recorder. However, in February 1990, a citizen who had apparently listened to a portion of one of Thompson's tapes appeared at city hall and complained bitterly and in harsh language to the city clerk about a water meter fee recently imposed by the council. This confrontation grew heated and the citizen agreed to leave only after the clerk displayed a gun.

Reacting to this incident and other information that Thompson "had used his tape recording to give various people around town false impressions," and in order to prevent future "disturbances," Cox decided that Thompson would no longer be permitted to tape record council sessions. Accordingly, at the April meeting, Cox informed Thompson that he could not keep his recorder in the council room. When Thompson refused to relinquish the device, Cox ordered defendant Police Chief Ramsey to confiscate temporarily Thompson's recorder. Ramsey removed the tape recorder from the table where Thompson was seated and placed it outside the meeting room. Thompson remained in the room and retrieved the recorder after the session had ended.

Thompson claims that after this incident he contacted the offices of the Alabama attorney general, the League of Municipalities, and the Clio city attorney, and was told that he was entitled to tape record council sessions. At the subsequent May meeting of the council, Thompson again appeared with his audio recorder and was again told by Cox that he would not be permitted to record the meeting. When Thompson refused to part with the tape machine, protesting that it was his right to record the council's proceedings, Cox instructed police officers Johnson and Hinson to seize the device.² At this point, the parties' accounts of events diverge. According to defendants, Thompson chose to leave the meeting before Johnson and Hinson could carry out Cox's order, and the officers therefore neither removed the recorder nor used any force against Thompson. Thompson, on the other hand, contends that Johnson and Hinson physically removed him from the council room and thereby injured his arm, requiring him to seek medical treatment.

In August 1990, Thompson filed this lawsuit, alleging that defendants violated his rights under the fourth amendment to the United States Constitution by seizing his person and his cassette recorder. Thompson also included in his complaint state law claims of conversion, false arrest, assault and battery, and violation of Alabama's "open meetings law."³ In February 1991, the court permitted Thompson to amend his complaint to add a claim that defendants have violated his right to freedom of speech, as guaranteed by the first amendment, by preventing him from recording council sessions.⁴ Thompson seeks declaratory and injunctive relief as well as compensatory and punitive damages. Defendants have now moved for summary judgment on each count of Thompson's complaint as amended.⁵

II.

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." A moving party can meet this standard, in a case in which the ultimate burden of persuasion at trial rests on the non-moving party, either by submitting affirmative evidence negating an essential element of the nonmovant's claim, or by demonstrating that the non-moving party's evidence itself is insufficient to establish an essential element of his claim. The movant may make this showing by deposing the non-moving party's witnesses, by establishing the inadequacy of the documentary evidence or, if there is no evidence, by reviewing for the court the facts that exist to show why they do not support a judgment for the non-moving party. The movant need not present affidavits or new evidence of its own to meet its initial burden, but may premise its summary judgment motion on an attack on the opponent's evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

Once the party seeking summary judgment has provided the requisite initial support for its motion, the burden shifts to the non-moving party to call evidence to the attention of the court sufficient to demonstrate a "genuine issue of material fact" as to each element which that party will have to prove at trial. Id. In resisting a motion for summary judgment, the non-movant may not rest on allegations in his pleadings, but must supply probative evidence such as affidavits, for example. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). See generally Issacharoff & Loewenstein, Second Thoughts About Summary Judgment, 100 Yale L.J. 73, 82-87 (1990). "The standard for granting summary judgment mirrors the standard for a directed verdict," and summary judgment is appropriate unless the facts before the court are such that "reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Id. at 250, 252, 106 S.Ct. at 2511, 2512.⁶ However, in deciding a motion for summary judgment, a district court must consider, as this court has done, "all the evidence in the light most favorable to the non-moving party ... and resolve all reasonable doubts in favor of the non-moving party." Earley v. Champion Int'l. Corp., 907 F.2d 1077, 1080 (11th Cir.1990). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

B. Federal Issues

In this section of its order, the court analyzes Thompson's federal claims, defendants' qualified immunity defense, and the issue of Clio's municipal liability. The court construes Thompson's complaint as presenting three federal claims: a first amendment claim directed at all defendants;⁷ a fourth amendment property claim which names Cox, Ramsey, and the city;⁸ and a fourth amendment force claim against all defendants except Ramsey.⁹

i. First Amendment Claim

In responding to Thompson's first amendment claim, defendants argue that the proscription on his use of a tape machine has little effect on his or the local public's ability to obtain or communicate information about council meetings.¹⁰ Nevertheless, the ban on Thompson's tape recorder has some impact, however small or incidental, on how he is able to obtain access to and present such information, and as such regulates conduct protected by the first amendment. See Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989); Spence v. Washington, 418 U.S. 405, 409-410, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (per curiam).

Although such incidental or "time, place, or manner" restrictions on expressive conduct are permissible where supported by a sufficiently important governmental interest, this deferential standard applies only where the regulation is "justified without reference to the content of the regulated speech."¹¹City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). See also United States v. Yonkers Bd. of Educ., 747 F.2d 111, 114 (2nd Cir.1984) (analyzing rule barring newspaper reporter from tape recording civil trial as time, place, and manner restriction). The requirement of content-neutrality is particularly important where, as in this case, government operates "at the core of the First Amendment" by regulating speech that is "political" or that touches on "public issues." See Boos v. Barry, 485 U.S. 312, 317, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988).¹²

Here, Mayor Cox did not adopt an across-the-board ban on tape recorders in council meetings; instead, he directed the ban solely at Thompson and his particular use of his recorder.¹³ The defendants argue that the ban is nevertheless constitutional because Thompson employed recordings of council sessions to misinform and...