Veneklase v. City of Fargo
| Decision Date | 17 February 1995 |
| Docket Number | Civ. No. A3-93-156. |
| Citation | 904 F. Supp. 1038 |
| Parties | Chris VENEKLASE, Paul B. Mehl, Darold Larson, Nancy Emmel, and Jessica Uchtman, Plaintiffs, v. CITY OF FARGO; Officer David Todd, Officer Jim Schalesky, Lt. Jon Holman, and Sgt. Wayne Jorgenson, of the City of Fargo Police Department, Defendants. |
| Court | U.S. District Court — District of South Dakota |
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Thomas W. Condit, Condit & Dressing Co., LPA, Cincinnati, OH, Peter B. Crary, Fargo, ND, for plaintiffs.
Mike Miller, Solberg, Stewart, Miller, Johnson & Noack, Fargo, ND, for defendants.
On October 8, 1993, plaintiffs Chris Veneklase, Paul B. Mehl, Darold Larson, Nancy Emmel and Jessica Uchtman filed this civil action against defendants Officer David Todd, Officer Jim Schalesky, Lt. Jon Holman, Sgt. Wayne Jorgenson and the City of Fargo seeking redress for alleged violations arising out of the unconstitutional enforcement of Fargo Municipal Code § 10-0802. Plaintiffs' complaint sets forth four causes of action based on federal constitutional and state law theories. Pending before the court are defendants' motion for summary judgment, plaintiffs' motion for partial summary judgment and plaintiffs' motion for oral argument on the pending motions.
Prior to October 10, 1991, the City of Fargo enacted a residential picketing ordinance which provided as follows:
Fargo Municipal Code § 10-0801 and § 10-0802 (1985) (amended Feb. 1, 1993). This ordinance is similar to an ordinance enacted in Brookfield, Wisconsin. The Brookfield ordinance, which was upheld by the United States Supreme Court in Frisby v. Schultz, contains a flat ban on targeted residential picketing, providing: "It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield." Frisby v. Schultz, 487 U.S. 474, 477, 108 S.Ct. 2495, 2498, 101 L.Ed.2d 420 (1988).
On the evening of October 10, 1991, plaintiffs participated in a public prayer vigil1 in the residential neighborhood of Jane Bovard, administrator of the Women's Health Organization.2 Plaintiffs and ten to fifteen other individuals convened in Bovard's neighborhood between the hours of 9:30 p.m. and 10:30 p.m. and began walking north and south on a public sidewalk in front of Bovard's residence and five to eight other homes. The prayer participants/demonstrators walked single file, spacing themselves several feet apart. They moved continuously, carried no signs, remained silent, and limited their activities to public streets and sidewalks on Edgewood Drive. Plaintiffs did not stop in front of Bovard's residence or any other home in the neighborhood and they did not block or impede access to or from private property.
The Fargo Police Department received a complaint about residential picketing in Bovard's neighborhood and Officers Wayne Jorgenson, David Todd and Lt. Jon C. Holman responded to the call. The officers observed the prayer participants/demonstrators for approximately ten minutes before Holman approached plaintiffs and the other participants and asked them to discontinue their activities. Holman discussed the issue with Veneklase for several minutes. During their conversation, Veneklase allegedly explained that the participants were not picketing, they were simply engaging in prayer. Veneklase also claimed that he had read the Fargo antipicketing ordinance and that he did not believe that plaintiffs' conduct fell within the scope of the ordinance. Lt. Holman allegedly indicated that he was broadly interpreting the Fargo antipicketing ordinance and that plaintiffs would be arrested if they continued their activities.3 Veneklase then allegedly conveyed the substance of this conversation with Holman to the other participants and a number of the people decided to leave. Plaintiffs refused to suspend their activities so defendants arrested them for picketing in a residential neighborhood.4
The police officers transported plaintiffs to the Cass County Jail and held Veneklase, Mehl, Larson and Emmel overnight because they refused to pay a $50 bond. Plaintiff Uchtman, a minor at the time of her arrest, was detained for only a few hours and then released to her parents.
The City of Fargo filed charges in Cass County District Court against plaintiffs Veneklase, Mehl, Larson and Emmel for violating Fargo Municipal Code § 10-0802. The City did not file charges against Uchtman. On February 18, 1992, the Honorable Frank L. Racek dismissed the charges against plaintiffs, ruling that the picketing ordinance was constitutional on its face, but unconstitutional as applied to plaintiffs and the other individuals who participated in the prayer vigil/demonstration near the Bovard residence on October 10, 1991.5 Plaintiffs then filed this action seeking redress for the allegedly unconstitutional enforcement of Fargo's residential picketing ordinance.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "A dispute is genuine when `the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Westchem Agr. Chemicals, Inc. v. Ford Motor Co., 990 F.2d 426, 429 (8th Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of summary judgment ... against a party failing to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The court considering a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party who enjoys "the benefit of all reasonable inferences to be drawn from the facts." Vacca v. Viacom Broadcasting of Missouri, Inc. et al., 875 F.2d 1337, 1339 (8th Cir.1989) (citation omitted). Summary judgment is improper if the court finds a genuine issue of material fact; however, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment...." Commercial Union Insurance Co. v. Schmidt, 967 F.2d 270, 271-72 (8th Cir.1992) (citation omitted). The issue is whether the evidence submitted presents a sufficient disagreement about the material facts so that submission to a jury is required, or whether the evidence is so one-sided that a party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986).
On September 15, 1994, plaintiffs filed a motion for partial summary judgment requesting this court to decide all questions of law relating to the constitutionality of Fargo Municipal Code § 10-0802 as written and as applied to plaintiffs' conduct on October 10, 1991. Specifically, plaintiffs urge this court to find that defendants violated plaintiffs' federal constitutional rights and to find that defendants were acting under color of state law and their acts were performed pursuant to the official policies and customs of the City of Fargo, thereby giving rise to liability for damages under 42 U.S.C. § 1983. (Pls.' Compl. at 6-7). Accordingly, plaintiffs request that this court enter judgment in their favor on the first and second causes of action set forth in their complaint.
Fargo Municipal Code § 10-0802, like the antipicketing ordinance reviewed by the United States Supreme Court in Frisby v. Schultz, operates at the core of the First Amendment because it prohibits demonstrators from picketing on an issue of public concern. See Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 2499-2500, 101 L.Ed.2d 420 (1988). "There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, the Fargo ordinance regulates expressive conduct that falls within the First Amendment's preserve." Carey v. Brown, 447 U.S. 455, 460, 100 S.Ct. 2286, 2289-90, 65 L.Ed.2d 263 (1980) (citations omitted). In light of our nation's profound commitment to the principle that debate on public issues should be "uninhibited, robust, and wide-open", the United States Supreme Court has "traditionally subjected restrictions on public issue picketing to careful scrutiny." Frisby, 487 U.S. at 479, 108 S.Ct. at 2499 (citations omitted). Likewise, the First Amendment right to peaceable assembly is equally essential to "the security of the Republic, the very foundation of constitutional government." Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322-23, 89 L.Ed. 430 (1945);6 DeJonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260-61, 81 L.Ed. 278 (1937).
A picketer's right to demonstrate is not unlimited, however. Id. "Even protected speech is not equally permissible in all places and at all times." Id. at 479, 108 S.Ct. at 2499 (citation omitted)....
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