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Duhe v. City of Little Rock

United States District Court, E.D. Arkansas, Western Division

April 27, 2017

RONALD DUHE, individually; MARK HOLICK, individually; and SPIRIT ONE CHRISTIAN CENTER, INC., a Kansas Non-Profit Corporation PLAINTIFFS
v.
THE CITY OF LITTLE ROCK, ARKANSAS, an Arkansas municipal corporation; SIDNEY ALLEN, in an individual capacity; and PULASKI COUNTY, an Arkansas political subdivision DEFENDANTS

          OPINION AND ORDER

          Kristine G. Baker United States District Judge.

         Plaintiffs Ronald Duhe, individually; Mark Holick, individually; and Spirit One Christian Ministries, Inc. (“Spirit One”) filed this action pursuant to 42 U.S.C. § 1983 alleging violations of their First, Fourth, and Fourteenth Amendment rights by defendants after plaintiffs were arrested while participating in a protest at No. 4 Office Park Drive in Little Rock, Arkansas, outside the Little Rock Family Planning Services (“LRFPS”). Previously, this Court issued an Order (Dkt. No. 189) resolving three pending motions for summary judgment (Dkt. Nos. 100, 134, 138). In that Order the Court indicated that its reasoning would be set out in a separate Order (Dkt. No. 189). Subsequently, plaintiffs filed a motion to amend order and make additional findings (Dkt. No. 190). Plaintiffs request that this Court set forth the reasoning for its opinion issued in the previous Order. The Court will state its rationale for the disposition of the motions for summary judgment in the instant Order (See Dkt. Nos. 100, 134, 138).[1] Thus, the Court denies as moot plaintiffs' motion to amend order and make additional findings (Dkt. No. 190).

         First is the second motion for partial summary judgment filed by plaintiffs (Dkt. No. 100). This Court denied as moot plaintiffs' first motion for partial summary judgment after plaintiffs filed their amended complaint (Dkt. Nos. 56, 58). Defendants Lieutenant Sidney Allen and the City of Little Rock, Arkansas (the “City”), filed a response to the second motion (Dkt. No. 124). Defendant Pulaski County, Arkansas (the “County”), also filed a response (Dkt. No. 121). Plaintiffs have filed replies to each of these responses (Dkt. Nos. 142, 143, 144). This Court denied plaintiffs' second motion for partial summary judgment by separate Order (Dkt. No. 189), and this Order sets forth the Court's reasoning.

         Second is Lt. Allen and the City's motion for summary judgment (Dkt. No.fv.

134). Plaintiffs filed a response to that motion (Dkt. No. 146). Lt. Allen and the City filed a reply that included additional deposition transcripts and, according to the plaintiffs, raised certain issues for the first time (Dkt. No. 153). Thus, this Court granted plaintiffs' motion to file a sur-reply, and plaintiffs have now filed their sur-reply (Dkt. Nos. 156, 158, 160). Lt. Allen and the City have filed a response to the plaintiffs' sur-reply (Dkt. No. 161). This Court granted Lt. Allen and the City's motion for summary judgment by separate Order (Dkt. No. 189), and this Order sets forth the Court's reasoning.

         Third is the County's motion for summary judgment (Dkt. No. 138). Plaintiffs filed a response to the County's motion (Dkt. No. 149). The County filed a reply to the plaintiffs' response (Dkt. No. 152). This Court granted the County's motion for summary judgment by separate order (Dkt. No. 189), and this Order sets forth the Court's reasoning.

         Essentially, these motions are cross motions for summary judgment. Plaintiffs moved for summary judgment on all claims, reserving only the issue of damages for trial (Dkt. No. 100), and defendants moved for summary judgment on all claims, as well (Dkt. Nos. 134, 138). For the following reasons, the Court denies plaintiffs' motion for summary judgment (Dkt. No. 100), grants Lt. Allen and the City's motion for summary judgment (Dkt. No. 134), and grants the County's motion for summary judgment (Dkt. No. 138).

         I. Procedural And Factual Background

         A. Procedural Background

         Plaintiffs filed their first complaint in this matter on September 26, 2014, alleging violations of their First, Fourth, and Fourteenth Amendment rights by defendants after plaintiffs were arrested while participating in a protest at No. 4 Office Park Drive in Little Rock, Arkansas, outside the LRFPS (Dkt. No. 1). As defendants, plaintiffs named the City and Lt. Allen, an officer with the Little Rock Police Department (“LRPD”), in his individual capacity (Dkt. No. 1).

         On August 4, 2015, plaintiffs filed their amended complaint, which is the operative pleading in this case (Dkt. No. 58). In their amended complaint, plaintiffs allege 13 causes of action, each of which is discussed in more detail below. Essentially, plaintiffs allege that their First, Fourth, and Fourteenth Amendment rights were violated by their arrest and subsequent detention. In addition to the City and Lt. Allen, plaintiffs named the County as a defendant.

         For their claims against Lt. Allen, plaintiffs allege that Lt. Allen violated their First Amendment rights by arresting them during the protest while plaintiffs were engaged in speech on a matter of public concern in a public location (Dkt. No. 58, ¶¶ 73-76, 90-93). Plaintiffs allege that Lt. Allen violated their Fourth and Fourteenth Amendment rights by arresting them without probable cause and subjecting them to an unreasonable search and seizure (Dkt. No. 58, ¶¶ 78-81, 94-98).

         As against the City, plaintiffs allege that the City violated their First Amendment rights through an official decision, policy, or practice that permitted Lt. Allen to arrest them while they were engaged in speech on a matter of public concern in a public place (Dkt. No. 58, ¶¶ 82-85, 99-102). Plaintiffs further allege that the City violated their Fourth and Fourteenth Amendment rights through an official decision, policy, or practice, which led to their arrest without probable cause (Dkt. No. 58, ¶¶ 86-89, 103-A106). Plaintiffs also request declaratory relief against the City in the form of an Order declaring that both the City's Permit Ordinance and Arkansas Code Annotated § 5-71-207 are unconstitutional (Dkt. No. 58, ¶¶ 107-110, A112-7-10).

         As against the County, plaintiffs allege claims for unlawful detention and unlawful photo publication (Dkt. No. 58, ¶ A112-1-4). Plaintiffs also contend that the City is liable for the County's unconstitutional acts (Dkt. No. 58, ¶ A112-6).

         Finally, with respect to all defendants, plaintiffs allege a cause of action for attorney's fees pursuant to 42 U.S.C. § 1988 (Dkt. No. 58, ¶ 111-A112).

         In their answer, defendants Lt. Allen and the City deny any wrongdoing in connection with plaintiffs' arrests and contend that both Arkansas Code Annotated § 5-71-207 and the City's Permit Ordinance are constitutional (Dkt. No. 64). Lt. Allen asserts the defense of qualified immunity for his individual actions (Dkt. Nos. 64, at 122; 135, at 8-30). In its answer, the County denies any wrongdoing or liability based on its detention and publication of the plaintiffs' photos (Dkt. No. 66).

         B. Factual Background

         1. Objections To Record Evidence

         Plaintiffs initially filed their motion for partial summary judgment before filing their amended complaint (Dkt. Nos. 16; 58). The City and Lt. Allen responded to that motion and submitted 20 exhibits in support of their response (Dkt. No. 28). Plaintiffs filed a combined reply to defendants' response to plaintiffs' statement of undisputed facts and to defendants' affidavits and exhibits (Dkt. No. 32). In that document, plaintiffs lodged several evidentiary objections to defendants' record evidence. When granting plaintiffs leave to file their amended complaint, the Court denied as moot plaintiffs' initial motion for partial summary judgment and, as a result, did not rule on plaintiffs' objections (Dkt. No. 56).

         In responding to plaintiffs' current motion for partial summary judgment, the City and Lt. Allen incorporated those 20 exhibits and submitted additional exhibits in support of their response (Dkt. No. 124). Plaintiffs renewed their objections to the 20 exhibits and lodged objections to the additional exhibits (Dkt. Nos. 142-1; 146-1).

         “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012). “[T]he standard is not whether the evidence at the summary judgment stage would be admissible at trial - it is whether it could be presented at trial in an admissible form.” Id. (emphasis in original). To the extent necessary for resolution of the pending motions, the Court rules as follows on all of plaintiffs' objections:

(a) Plaintiffs' objections to Bruce Moore's affidavit (Dkt. No. 28-1) based on alleged lack of materiality and Federal Rule of Evidence 701 are overruled.
(b) Plaintiffs' objections to Assistant Police Chief Bewley's affidavit (Dkt. No. 28-2) based on alleged lack of materiality, Federal Rule of Evidence 602, Federal Rule of Evidence 701, and Federal Rule of Evidence 403 are overruled.
(c) The Court will not strike Lt. Allen's affidavit (Dkt. No. 28-3); the Court does not deem it to be in direct conflict with his prior trial testimony cited by plaintiffs. Plaintiffs point to testimonial statements made by Lt. Allen which they argue tend to establish that their arrest was motivated by violation of the permit ordinance (Dkt. No. 32, at 4-5). Plaintiffs argue that Lt. Allen's testimony at their trial is inconsistent with an affidavit he filed in this litigation. Plaintiffs appear to argue that the arrest was at least in part premised upon the permit ordinance. The Court disagrees. The Court determines that Lt. Allen's testimony at trial was at most equivocal on this point.

         During direct examination, Lt. Allen testified that he arrested Mr. Duhe and Mr. Holick for “disroderly conduct, for impeding the flow of the traffic into the business and for causing a general annoyance and disturbance with the amplification device to the local business.” (Dkt. No. 147-1, at 7). Lt. Allen testified that he personally observed Mr. Duhe and Mr. Holick impeding traffic “several times, ” and that “we wanted to be sure that they were intentionally doing it.” (Id. at 8).

         During a cross-examination conducted by Mr. Holick, Lt. Allen conceded that he gave copies of potential citations of permit violations to Mr. Duhe and Mr. Holick (Id. at 10), but he never stated that either Mr. Duhe or Mr. Holick were arrested due to violation of the permit ordinance. By contrast, Lt. Allen testified that Mr. Holick was “arrested for, primarily, impeding the flow of the patients coming to the business.” (Dkt. No. 147-1, at 32). When Mr. Holick asked, “So, I'm not arrested for using the microphone system I'm arrested for impeding traffic; is that correct?” Lt. Allen replied, “Yes.” (Id.). Moreover, the District Judge presiding at trial asked the parties at one point in the questioning, “What is the relevance here? We're not charged with failure to get a permit.” (Id. at 29). Later, at a deposition in this matter, Lt. Allen stated that, upon arriving with Mr. Duhe and Mr. Holick at the jail, Lt. Allen reported to the staff that Mr. Duhe and Mr. Holick had been arrested for violation of the disorderly conduct statute (Dkt. No. 153-3, at 2). Further, in response to requests for admission, both Mr. Duhe and Mr. Holick admit that they were not charged with failure to have a permit (Dkt. Nos. 28-15; 28-16). The Court also overrules plaintiffs' remaining evidentiary objections to Lt. Allen's affidavit.

         (d) Plaintiffs' objections to Police Officer Jennifer Freeman's affidavit (Dkt. No. 28-4) based on Federal Rule of Evidence 602, alleged lack of materiality, and Federal Rule of Evidence 403 are overruled.

         (e) Plaintiffs' objections to Police Officer Ronald Morgan's affidavit (Dkt. No. 28-5) based on Federal Rule of Evidence 602, alleged lack of materiality, and Federal Rule of Evidence 403 are overruled.

         (f) Plaintiffs' objections to Lori Williams's affidavit (Dkt. No. 28-6) based on Federal Rule of Evidence 602, alleged lack of materiality, Federal Rule of Evidence 403, and what this Court construes as objections based on Federal Rules of Evidence 401 and 402 are overruled.

         (g) Plaintiffs' objections to Gail Teague's affidavit (Dkt. No. 28-7) based on Federal Rule of Evidence 602, alleged lack of materiality, and Federal Rule of Evidence 403 are overruled.

         (h) Plaintiffs' objections to Wayne Behr's affidavit (Dkt. No. 28-8) based on Federal Rule of Evidence 602, alleged lack of materiality, and Federal Rule of Evidence 403 are overruled.

         (i) Plaintiffs' objection to Travis B. Herbner's affidavit based on alleged lack of materiality is overruled.

         (j) Plaintiffs' objections to Michelle N. Ferguson's affidavit (Dkt. No. 28-10) based on Federal Rule of Evidence 602, alleged lack of materiality, and Federal Rule of Evidence 403 are overruled.

         (k) Plaintiffs' objection to David P. Rowan's affidavit (Dkt. No. 28-11) based on alleged lack of materiality is overruled.

         (1) Plaintiffs' objection to Meghan M. Buchert's affidavit (Dkt. No. 28-12) based on alleged lack of materiality is overruled.

         (m) Plaintiffs' objection to Matthew Briggs's deposition excerpts (Dkt. No. 28-13) based on alleged lack of materiality is overruled.

         (n) There is no objection lodged by plaintiffs initially to the Amended Ordinance dated March 3, 2015. To the extent plaintiffs object based on alleged lack of materiality, the objection is overruled.

         (o), (q) Plaintiffs' objections to Mr. Holick's responses to requests for admission and answers to interrogatories are overruled.

         (p), (r) Plaintiffs' objections to Mr. Duhe's responses to requests for admission and answers to interrogatories are overruled.

         (s) Plaintiffs' objection to the disposition record (Dkt. Nos. 28-19; 124-19) is overruled.

         (t) Plaintiffs' objections to the depositions of Mr. Moore (Dkt. No. 124-20), Mr. Duhe (Dkt. No. 124-21), Mr. Holick (Dkt. No. 124-22), Ms. Williams (Dkt. No. 123-23), Ms. Teague (Dkt. No. 124-24), Ms. Ferguson (Dkt. No. 124-25), Mr. Hurd (Dkt. No. 1234-26), Lt. Allen (Dkt. No. 127-27), Bill Darr (Dkt. No. 124-28), Ruth Darr (Dkt. No. 124-29), Mark Kiser (Dkt. No. 124-30), Emily Sichley (Dkt. No. 124-31), Wayne Bewley (Dkt. No. 124-32), Ty Tyrell (Dkt. No. 124-33) are overruled.

         To the extent plaintiffs raise additional objections to the summary judgment record before this Court that the Court has not specifically addressed, those objections have been considered by the Court and are overruled.

         2. Underlying Facts

         Many of the underlying facts are undisputed. According to the amended complaint, Spirit One is a successor in interest to Spirit One Christian Center, Inc., “a non-profit corporation organized and existing under the laws of the State of Kansas with a mission to promote the Gospel of the Lord Jesus Christ.” (Dkt. No. 58, ¶ A7). The amended complaint alleges that Mr. Holick was employed by Spirit One and served as its president at all times relevant to this case (Dkt. No. 58, ¶ A6). In September 2012, plaintiffs Mr. Duhe and Mr. Holick participated in a pro-life, or anti-abortion, event that took place in Little Rock, Arkansas (Dkt. No. 58, ¶ 16-22; Dkt. No. 126, at 1).

         The City admits that, on September 7, 2012, in anticipation of the pro-life event identified as Operation Save America, LRPD Assistant Chief Wayne Bewley issued Operational Order No. 2012-17 (Dkt. No. 126, at 1). Assistant Chief Bewley assigned Captain Ty Tyrell as commander of the overall operation and Lt. Allen, then a Lieutenant with the LRPD, to command the Special Response Unit (Id.).

         The parties do not dispute that Mr. Duhe and Mr. Holick participated in a protest on September 14, 2012, at LRFPS (Dkt. No. 58, ¶ 22; Dkt. No. 126, at 2). The group of protestors did not apply for a permit (Dkt. No. 147, Ex. 3, Ferguson Depo., at 66:11-12; Dkt. No. 101, Ex. 7, Holick Aff., ¶ 4). Mr. Duhe and Mr. Holick both used a microphone and amplifier to speak during the protest (Dkt. No. 58, ¶ 25; Dkt. No. 126, at 2).

         Lt. Allen came to the protest and did not use a decibel meter to measure the volume of the amplifier (Dkt. No. 58, ¶ 33; Dkt. No. 101-6, at 12). Lt. Allen responded as a result of complaints from an employee of the abortion clinic and from adjacent business owners (Dkt. No. 101, ¶¶ 42- 44). Lt. Allen did not go into any of the complaining businesses to determine the noise level inside (Dkt. No. 101-6 at 12:7-9).

         The parties dispute what happened next. Attached to Lt. Allen and the City's response in opposition to the second motion for summary judgment is an affidavit from one of the officers assigned to the protest: Jennifer Freeman (Dkt. No. 124-4). According to Officer Freeman, “the facts contained in [the] affidavit are based on [her] personal knowledge and [her] review of true and correct records maintained in the ordinary course of business by the City” (Dkt. No. 124-4, at 1). According to Officer Freeman, officers instructed Mr. Holick to discontinue using the amplifier system because it was disturbing businesses in the area (Dkt. No. 124-4, ¶ 3). Officer Freeman states that, when Mr. Duhe began using the microphone, Mr. Holick raised the volume; that Mr. Holick stood in the middle of the entrance to the clinic parking lot while giving vehicles a hand motion to stop; and that officers instructed Mr. Holick not to obstruct the flow of traffic into the clinic, but he did not comply with those instructions (Id.). Plaintiffs appear to dispute that they were given warnings prior to arrest, but they do not dispute that they were arrested for disorderly conduct (Dkt. No. 58, ¶ A10; Dkt. No. 101, ¶ 38).

         The parties do not dispute that, after their arrest, Mr. Duhe and Mr. Holick were taken to the Pulaski County Regional Detention Facility (“PCRDF”). PCRDF is owned and operated by the County (Dkt. No. 125, at 8). The City and the County cooperate financially in operating PCRDF (Dkt. No. 125, at 9; Dkt. No. 122, at 22). Mr. Duhe and Mr. Holick were arrested at 9:40 a.m. on September 14, 2012; the book-in process began at approximately 10:25 a.m.; and they were released from PCRDF at approximately 9:41 p.m., amounting to a total of approximately 12 hours in custody at PCRDF (Dkt. No. 122, at 9; Dkt. No. 122, Ex. 7, 8; Dkt. No. 122, Ex. 1, Briggs Depo., at 80, 103).

         The County admits that there is no specific policy at PCRDF that requires inmates to be processed in less than 24 hours (Dkt. No. 125, ¶ 61). The County admits that it has a process to follow for citing prisoners when the jail reaches a certain headcount, but the County denies that “any” staff member can make the decision to cite and release (Dkt. No. 125, ¶ 65). The County admits that Arkansas Rule of Criminal Procedure 5.2(b) allows the ranking officer at a place of detention to issue a citation in lieu of continued custody (Dkt. No. 125, ¶ 68). The County further admits that, for plaintiffs' disorderly conduct arrests on September 14, 2012, there was automatic authority to cite and release them (Dkt. No. 122, at 6).

         While the County admits that deciding when to cite and release a prisoner is at the discretion of the sergeant on the shift-and there is no policy to direct him or her-the County contends that arrestees have no right to be cited and released (Dkt. No. 122, at 7). The County maintains that it may detain a prisoner in the facility for up to 48 hours to decide whether to issue a citation and release the prisoner pursuant to Arkansas Rule of Criminal Procedure 4.1(e) (Dkt. No. 125, at 8). Plaintiffs assert that the City delegated its authority to cite and release individuals to the County (Dkt. No. 101, ¶ 79). The City and the County contend that there is no such delegation (Dkt. No. 125, at 22-23; Dkt. No. 122, at 10-11).

         II. Analysis

         A. Disorderly ...


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