U.S. v. Gilbert

• Decision Date: 10 January 1991
• Docket Number: No. 89-8711,89-8711
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abraham GILBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 878

920 F.2d 878

UNITED STATES of America, Plaintiff-Appellee, v. Abraham GILBERT, Defendant-Appellant.

No. 89-8711.

United States Court of Appeals, Eleventh Circuit.

Jan. 10, 1991.

Donald F. Samuel, Atlanta, Ga., for defendant-appellant.

Robert L. Barr, Jr., U.S. Atty., Daniel A. Caldwell, Jane Wilcox Swift, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON and COX, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

COX, Circuit Judge:

Abraham Gilbert appeals the district court's award of injunctive relief in favor of the United States. The injunction prohibits Gilbert from using the Richard B. Russell Federal Building as his home and also restricts some of his activities in and around the building. Essentially, we affirm the district court's award of injunctive relief. Because we conclude, however, that the injunction is overbroad in two respects, we reverse in part and remand for modifications of the injunction.

I. FACTS ¹

Abraham Gilbert is upset. In 1979, the Northern District of Georgia dismissed his suit against a former employer. Since then, Gilbert has been protesting. His form of protest evolved over an eight-year period to the point where he had made the Richard B. Russell Federal Building ² his home. Gilbert slept just outside the building, kept his bedroll and personal belongings there, ate his meals in the building's cafeteria, used the building's rest rooms to bathe and do his laundry, and dried his clothes on the newspaper racks outside the building. These activities took place twenty-four hours a day, 365 days a year.

Gilbert's message is chameleon-like. At first, he protested the "injustice" dealt him by the federal district court in 1979. Eventually, he protested the handling of Atlanta's "missing and murdered children" case he claimed the government was poisoning him, and trying to frame him for murder, had sabotaged his car, caused his child to be stillborn, and generally, in his words, had "done him wrong."

A description of the Russell Building is important to an understanding of this case.

The ground level of the Russell Building is partially unenclosed. A glass partition, recessed approximately thirty feet from the exterior support columns of the building, separates the internal lobby area from what could be termed the "portico." The concrete columns support the twenty-three stories above the ground level of the Building. The portico extends from the glass partition to the support columns and is covered by an "overhang" of the upper floors of the building.

United States v. Gilbert, 720 F.Supp. 1554, 1556 (N.D.Ga.1989) (citations omitted). A person inside the ground-floor enclosed lobby area who exits the building on the Spring Street side ³ walks out onto the portico area, which is covered by the overhang. If the person continues to walk toward Spring Street, he would eventually come out from under the overhang, then walk several more feet before reaching twelve steps. The point at which the overhang ends is the demarcation line between the portico and the unenclosed plaza area. The unenclosed plaza consists of a portion of the area at the top of the steps, the steps themselves, and a large area between the steps and Spring Street. See id.

II. PROCEDURAL HISTORY

In January 1988, after Gilbert had lived on federal property for at least six years, ⁴ the United States filed a civil action against him. ⁵ The complaint alleged that Gilbert was trespassing on federal property and sought injunctive relief in the form of an order requiring Gilbert to permanently leave the premises. Gilbert, at first pro se, and then with the help of appointed counsel, answered by asserting that his activities were expressive and protected by the First Amendment.

Both the United States and Gilbert moved for summary judgment. The district court held an evidentiary hearing on March 22, 1989. After reviewing the testimony presented at the hearing as well as the affidavits submitted, the court granted summary judgment in favor of the government. Id. at 1555. In so doing, the court concluded that Gilbert was indeed trespassing on federal property and that the First Amendment did not protect all of his activities at the Russell Building. See id. at 1559-65.

On August 22, 1989, the district court issued the following injunction:

FIRST, defendant Gilbert is ENJOINED from residing anywhere inside the [Russell Building] or on the grounds of the Russell Building, including but not limited to, the portico area.... Specifically, defendant Gilbert may not:

(a) Sleep in the portico area, inside the Russell Building, or anywhere else on the grounds of the Russell Building;

(b) Place a sleeping kit or other personal effects in the portico area, inside the Russell Building, or anywhere else on the grounds of the Russell Building, except as provided below in the paragraph designated "Third";

(c) Use the restroom facilities of the Russell Building for bathing, or for washing or laundering his clothes or other personal belongings, or for filling containers in which to wash himself, his clothes, or his other personal belongings; or

(d) Hang his clothes or other personal belongings in the portico area, inside the Russell Building, or anywhere else on the grounds of the Russell Building.

SECOND, defendant Gilbert is ENJOINED from public protesting, demonstrating, leafletting, displaying a sign, picketing, marching, speaking or chanting to the public, and engaging in similar expressive activity either inside the Russell Building or in the portico area under the overhang of the Russell Building.

THIRD, nothing in this injunction shall be construed to prohibit defendant Gilbert from protesting, demonstrating, leafletting, displaying a sign, picketing, marching, speaking, chanting, or engaging in similar expressive activity in the unenclosed, uncovered plaza area of the Russell Building.... Moreover, defendant Gilbert is not prohibited from having with him personal property used in connection with the First Amendment activity described in this paragraph.

District Court Order, Aug. 22, 1989, R.1-46-2-4. Stated otherwise, the injunction prevents Gilbert from living at the Russell Building and from carrying on most expressive activity inside the building or in the portico area. Gilbert generally may carry on First Amendment activity in the unenclosed plaza. He may not, however, sleep in that area or anywhere else on the Russell Building grounds.

III. CONTENTIONS OF THE PARTIES AND ISSUES ON APPEAL

Gilbert contends that this case is not appropriate for summary judgment because there are disputed questions of fact that the district court improperly resolved. Specifically, Gilbert asserts that whether the public understands his message, whether his presence is aesthetically displeasing, whether he has violated GSA regulations against loitering, and whether the portico area has regularly been used for demonstrations are all disputed questions that should be resolved at trial and not on summary judgment. Gilbert further argues that the injunction violates his First Amendment rights because it is overbroad, because it is a prior restraint and because the injunction does not constitute a reasonable time, place, or manner restriction. Finally, Gilbert argues that the injunction violates the equal protection component of the Fifth Amendment ⁶ because it treats him differently than it does other potential protesters.

The United States argues that although there may be some minor disputed factual questions, none of them are both genuine and material and therefore summary judgment is appropriate. The government further asserts that much of Gilbert's conduct is not expressive and not protected by the First Amendment. Even if all of Gilbert's conduct is expressive, the government argues, the injunction is not overbroad, is not a prior restraint, and constitutes a reasonable time, place, and manner restriction on Gilbert's activities.

In this appeal we must decide first whether this case is appropriate for summary judgment, and second whether the injunction entered by the district court is consistent with the First Amendment.

IV. DISCUSSION

A. Summary Judgment

This court reviews the district court's grant of summary judgment de novo. DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1813, 108 L.Ed.2d 943 (1990). Summary judgment is appropriate only if the pleadings and evidence in the record demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). On summary judgment, the reasonable inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). The nonmoving party, however, "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment...." Id. at 247-48, 106 S.Ct. at 2510 (emphasis in original). Rather, the nonmoving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may be reasonably resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511. Further, "[f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at 2510. See generally 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure Sec. 2725 (1983).

Gilbert argues first that "the nature of [his] protest," that is,...