Worldwide Street Preachers' Fellowship v. Peterson , 388 F.3d 555 ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-2255
WORLDWIDE STREET PREACHERS’ FELLOWSHIP,
RON MCRAE, DANIEL GOWAN, et al.,
Plaintiffs-Appellants,
v.
BART PETERSON, Mayor, in his official capacity as
Mayor of the City of Indianapolis, MICHAEL O’CONNOR,
in his official and individual capacity, MARK R. RAND,
Officer, in his official and individual capacity, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 03 C 1516—John Daniel Tinder, Judge.
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ARGUED SEPTEMBER 29, 2004—DECIDED OCTOBER 29, 2004
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Before CUDAHY, RIPPLE and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. Worldwide Street Preachers’
Fellowship and its members (collectively “SPF”) filed an
action pursuant to 42 U.S.C. § 1983 against the City of
Indianapolis and its officials (collectively “the City”). The
complaint alleged that the defendants, operating under the
2 No. 04-2255
color of state law, had interfered with SPF’s street preaching
activities during the parade held in conjunction with the
Indianapolis Five Hundred mile race and, consequently,
had deprived them of their rights to the free exercise of
religion, to freedom of speech and to assembly, in violation
of the First and Fourteenth Amendments to the Constitution
of the United States.
SPF moved for a preliminary injunction to prevent the
City from restricting its activities during the 2004 parade.
The district court granted in part and denied in part this
motion. SPF appeals. For the reasons set forth in the follow-
ing opinion, we have concluded that the issue of whether a
preliminary injunction ought to have been issued is moot.
Accordingly, we must dismiss SPF’s appeal.
I
BACKGROUND
A. Facts
Since 1957, the City of Indianapolis has played host to a
festival on Memorial Day weekend to celebrate the running
of the Indianapolis Five Hundred mile motor race. The
event is organized and sponsored by 500 Festival, a private
nonprofit Indiana corporation, under permit from the City.
Every year on Memorial Day Saturdays, 500 Festival spon-
sors a pre-race parade that winds its way through the city
and attracts some 250,000 spectators.
The parade is designated as a special event by city ordi-
nance. 500 Festival applies each year for a permit to operate
the festival; once granted, the permit affords 500 Festival
use of a specified geographic area in the city for its event.
The permit’s conditions restrict other groups’ use of the
designated area during the event. For example, vendors are
No. 04-2255 3
not permitted to set up within fifty feet of the event bound-
aries without the permission of the permit holder (500
Festival). The event sponsor coordinates public safety with
the city police department, which enforces the terms of the
permit. Some bleacher seats are available for sale, although
attendance at the parade is free to the public.
During the 2003 parade, SPF members attempted to preach
to event spectators. Accounts vary, but it is undisputed that
city police officers prevented SPF from displaying large
banners, using megaphones and passing out leaflets. Some
SPF members were arrested.
B. District Court and Court of Appeals Proceedings
SPF filed an action pursuant to 42 U.S.C. § 1983 against the
City for violations of its rights under the First Amendment.
Concerned that the City would prohibit their preaching
activities at the 2004 parade, scheduled for May 29, SPF also
moved for a preliminary injunction to prevent the City from
stopping its stationary preaching and use of leaflets,
banners and megaphones during the parade. The City
admitted to the district court that it would not allow these
activities during the upcoming event unless SPF received
permission from 500 Festival, the sponsor and permit holder.
In seeking the preliminary injunction, SPF pointedly did not
challenge facially any law or ordinance, but rather sought
prospectively to prevent the City from limiting its First
Amendment rights during the 2004 parade. SPF did not seek
permission to conduct its preaching activities from 500
Festival. Neither party joined 500 Festival as a party to the
underlying litigation.
The district court determined that SPF had demonstrated
a likelihood of success on the merits, and then balanced the
harms to each party that would result from the issuance of
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a preliminary injunction. According to the district court, this
balance favored enjoining the City from preventing SPF’s
leaflet activity, but did not favor an injunction regarding the
banners, stationary preaching, or use of megaphones. SPF
appealed to this court.
SPF then filed a motion before this court, on May 18, 2004,
styled a “Motion for Expedited Appeal and Advancement
of Hearing.” It sought to extend the district court’s prelimi-
nary injunction beyond leaflet activity to prohibit any re-
striction on the raising of banners, preaching in one place,
or using megaphones during the 2004 parade. This court
treated SPF’s filing as a request for injunction pending ap-
peal and directed the City to file a response that would ad-
dress whether, in light of Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), the
City had a role to play in prohibiting public participation in
the parade. This court later entered a preliminary injunction
that enjoined the City from “excluding the appellants from
stationary preaching and the display of banners within the
boundaries of the 500 Festival Parade unless the parade
organizers otherwise object to such activities.” Order,
May 27, 2004 at 2. On May 29, 2004, the parade occurred as
scheduled.
II
DISCUSSION
This court’s jurisdiction to review the grant or denial of a
preliminary injunction is grounded in 28 U.S.C. § 1292(a)(1).
Congress’ authority to confer jurisdiction upon us, however,
is limited by Article III of the Constitution, which extends
federal judicial power only to “Cases” and “Controversies.”
U.S. Const. art. III, § 2. As a result of this limitation, federal
courts “may not ‘give opinions upon moot questions or ab-
No. 04-2255 5
stract propositions.’ ” Calderon v. Moore, 518 U.S. 149, 150
(1996) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).
Mootness, therefore, is always a threshold jurisdictional
question that we must address even when it is not raised by
the parties. See North Carolina v. Rice, 404 U.S. 242, 246
(1971); Orion Sales, Inc. v. Emerson Radio Corp., 148 F.3d 840,
842 (7th Cir. 1998).
In its motion for a preliminary injunction, SPF did not
challenge any Indiana statute or Indianapolis ordinance.
Nor did it challenge the process by which permits are issued
for such events. Rather, it simply asked the district court to
protect its efforts during the 2004 parade, an event that
occurred several months ago. The district court’s determina-
tion of that issue is the only subject of this appeal. Now that
the 2004 parade is over, nothing that we might do at this
point can alter what took place during the parade. We can
no longer “affect the rights of litigants in the case.” Rice, 404
U.S. at 246; see also Orion Sales, 148 F.3d at 842 (dismissing
appeal in which oral arguments occurred two months after
expiration of the preliminary injunction). Indeed, this court
already has addressed the relief sought by SPF and supple-
mented the relief previously granted by the district court.
At oral argument, SPF asserted that this court’s injunction
did not address all of its concerns because it enjoined the
City only from prohibiting stationary preaching and banner
activities without addressing its claimed right to leaflet or
to preach among the crowd. The district court’s preliminary
injunction, however, protected the right to hand out leaflets,
and the City never claimed that it had a right to prohibit
mobile preaching. In any event, there is nothing that this
court can do to enjoin the City’s actions with respect to a
parade that already has occurred. Thus, because we cannot
affect the asserted rights of SPF or the City, this appeal of
the preliminary injunction is moot.
6 No. 04-2255
At oral argument, SPF contended, for the first time, that it
seeks a permanent injunction against the City to prevent
police officers from restricting their activities at future par-
ades. It would be inappropriate for this court to extend the
appeal of a preliminary injunction order to address matters
that properly are the subject of ongoing litigation in the dis-
trict court. The subject of a permanent injunction is still
before the court and, “[w]ithout [its] full deliberation on the
merits of the case, we cannot” determine whether such
action is warranted under the circumstances. Orion Sales,
148 F.3d at 843.
In response to our mootness concerns, SPF submitted that
we should review the preliminary injunction because the
City’s alleged policies restricting their activities are capable
of repetition, yet evade review. See, e.g., City of Los Angeles
v. Lyons, 461 U.S. 95, 109-10 (1983); Tobin for Governor v.
Illinois State Bd. of Elections, 268 F.3d 517, 528-29 (7th Cir.
2001). But “the capable-of-repetition doctrine applies only
in exceptional situations,” Lyons, 461 U.S. at 109, “when (1)
the challenged action is too short in duration to be fully liti-
gated prior to its cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will
be subjected to the same action again,” Tobin for Governor,
268 F.3d at 529 (citing Illinois State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 187 (1979)).
This appeal does not present such an “exceptional situa-
tion.” The 2004 parade has ended, and SPF has not demon-
strated any impediment to challenging the complained-of
City activities before the next parade in May 2005. If the
§ 1983 action concludes before then, SPF will have an
answer to their request for a permanent injunction. If the
action is still pending when the 2005 parade date ap-
proaches, SPF may request that the district court issue ano-
ther preliminary injunction and later seek review of that
No. 04-2255 7
court’s action here. The history of this litigation makes clear
that timely review can be obtained.
SPF also failed to demonstrate that it necessarily will be
subjected in 2005 to precisely the same treatment that it re-
ceived in 2003. Indeed, much of the district court’s analysis
in partially granting this preliminary injunction depended
upon the City’s admission that it would prevent SPF from
conducting certain activities in the same manner as its of-
ficers had in 2003. Now, because the 2004 parade occurred
under this court’s injunction, the City’s position well may
have changed. And there is no basis for this court to believe
that any wrongful activities by the City during the 2003
parade will be repeated in the 2005 parade.
Conclusion
For the foregoing reasons, the appeal is dismissed for
want of jurisdiction.
APPEAL DISMISSED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-29-04