Ovadal, Ralph v. City of Madison ( 2006 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-4723
    RALPH OVADAL,
    Plaintiff-Appellant,
    v.
    CITY OF MADISON, WISCONSIN,
    RICHARD WILLIAMS,
    CHRIS PAULSON, and
    PATRICK GRADY,
    Defendants-Appellees.
    ____________
    Appeal from the United States District Court
    for the Western District of Wisconsin.
    No. 04 C 322—John C. Shabaz, Judge.
    ____________
    ARGUED SEPTEMBER 22, 2006—DECIDED NOVEMBER 20, 2006
    ____________
    Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
    KANNE, Circuit Judge. The plaintiff sued the City of
    Madison and various officers of the Madison Police De-
    partment (collectively “Madison”) under 
    42 U.S.C. § 1983
    alleging that his constitutional rights of free speech and
    freedom of religion were infringed. The district court
    granted summary judgment to Madison in a Memorandum
    and Order dated November 8, 2004. We remanded so that
    the district court could develop some aspects of the factual
    record. Ovadal v. City of Madison, 
    416 F.3d 531
     (7th Cir.
    2005). After a bench trial, the district court entered judg-
    2                                                    No. 05-4723
    ment in favor of the defendants. Ovadal v. City of Madison,
    No. 04-C-322-S, 
    2005 WL 3434402
     (W.D. Wis. Dec. 13,
    2005). The plaintiff appeals. We affirm.
    I. HISTORY
    Mr. Ovadal began this, his most recent foray into the
    federal courts, after events that occurred in Madison in the
    Fall of 2003. On September 3 and October 11 of that year he
    organized two small demonstrations to express his opposi-
    tion to homosexuality. His chosen fora for these demonstra-
    tions were overpasses where city sidewalks crossed the
    Madison Beltline freeway.1 On both occasions the demon-
    strations had a noticeable effect on traffic below. On both
    occasions the Madison police arrived and forced Ovadal to
    move from the overpasses on the grounds that his activities
    were causing a traffic hazard for the motorists below him.
    Ovadal brought suit seeking damages as well as declaratory
    and injunctive relief.
    As we previously held in this case, Ovadal’s demonstra-
    tions are well within the core of the types of speech and acts
    that are protected by the First Amendment and his chosen
    location is a traditional public forum. Ovadal, 
    416 F.3d at 536
    . Madison can make time, place, or manner restrictions
    on such speech only if they are content-neutral, narrowly-
    tailored to serve a significant government interest, and
    leave open ample alternative means of communication. 
    Id.
    Alternatively, Madison can make content-based restrictions
    on such speech only if necessary to accomplish a compelling
    interest and narrowly tailored to that end. 
    Id.
     The primary
    1
    The Beltline is a restricted access freeway. In the area where
    Ovadal was protesting, the average speed of the traffic exceeds 60
    miles per hour, with some traffic traveling as fast as 85 miles per
    hour.
    No. 05-4723                                                   3
    issue of contention between the parties on remand and on
    this appeal has been whether Madison’s actions were
    content-neutral.
    Ovadal argues that a policy that restricts speech based on
    its effect on traffic is not content-neutral. Arguing back-
    wards, he reasons that traffic congestion and motor-
    ist complaints are a function of motorists’ reactions to his
    message, and that motorists will react to create a traffic
    hazard when confronted with a message that they do not
    accept. This, in Ovadal’s view, gives the motorists a “heck-
    ler’s veto” over his protected speech. See, e.g., Forsyth
    County, Ga. v. Nationalist Movement, 
    505 U.S. 123
     (1992).
    Madison, however, contends that the decisions to remove
    Ovadal from the overpasses were not, even indirectly,
    driven by the content of his speech. The defendants contend
    that the police responded to a traffic hazard that was
    caused not by the content of Ovadal’s signs but by the fact
    that he was creating a “spectacle” over heavy high-speed
    traffic. Madison argues that regardless of whether the first
    person who looked up at the band of protesters and tapped
    their brakes agreed with Ovadal’s message or abhorred it,
    that person set off a chain reaction: traffic became increas-
    ingly more dangerous and many drivers were left angry.
    The district court conducted a bench trial to resolve this
    factual dispute and entered judgment in favor of Madison.
    The court specifically entered findings of fact that the traffic
    congestion was not caused by (or a derivative of) the content
    of Ovadal’s speech, but rather was caused by the presence
    of the band of protesters and motorists’ reactions to their
    presence. Ovadal, No. 04-C-322-S, 
    2005 WL 3434402
    , at *1-
    2 (W.D. Wis. Dec. 13, 2005). The court entered conclusions
    of law that Madison’s actions were content-neutral, were
    necessary to serve the compelling government interest of
    motorist safety, and left ample alternatives to Ovadal. 
    Id. at *2-3
    .
    4                                                No. 05-4723
    Seven days after the bench trial, Madison Ordinance 05-
    00193 took effect, and amended the compiled Madison City
    Ordinances to prohibit any person to “display, place, erect,
    post, maintain, install, affix, or carry any street graphic,
    including a hand-carried sign” on highway overpasses
    such as those at issue in this lawsuit. Madison City Ord.
    § 31.04(6)(m). The ordinance bans any such display,
    provided that it is visible from the highway. Id. The ban
    is limited to freeways and expressways, or controlled access
    highways with a speed limit greater than forty miles per
    hour. Id.
    On appeal, Ovadal seeks to have “Madison’s traffic hazard
    policy” declared unconstitutional and enjoined from en-
    forcement, and seeks damages for the two occasions that
    he was forced off the bridges. He alleges that there is either
    an unwritten policy that is directed at him—a “no-Ovadals-
    on-overpasses rule”—or alternatively that there is a policy
    that leaves the existence of a traffic hazard to the judgment
    of a police officer. This policy, he argues, gives too much
    discretion to the police, is incapable of content-neutral
    application, is not narrowly tailored, and does not serve a
    compelling state interest.
    II. ANALYSIS
    A. Declaratory and Injunctive Relief
    The Constitution gives the federal courts jurisdiction over
    “cases” and “controversies.” U.S. Const. Art. III § 2, cl. 1.
    When circumstances change during litigation such that
    there is no longer any case or controversy, the case is moot.
    Powell v. McCormack, 
    395 U.S. 486
     (1969). If a defendant
    voluntarily ceases the behavior that is complained of, the
    case can be rendered moot “if subsequent events [make] it
    absolutely clear that the allegedly wrongful behavior could
    not reasonably be expected to recur.” Friends of the Earth,
    Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. 
    528 U.S. 167
    , 189
    No. 05-4723                                                  5
    (2000) (quoting United States v. Concentrated Phosphate
    Exp. Ass’n, 
    393 U.S. 199
    , 203 (1968)).
    At its heart, Ovadal’s request for declaratory and injunc-
    tive relief relies on the claim that Madison had an unwrit-
    ten policy that impermissibly burdened his First Amend-
    ment rights by prohibiting protests when, in the opinion of
    a police officer, the protests were causing a traffic hazard.
    He bases this belief on the fact that on the two occasions
    when he was forced to leave the pedestrian overpasses, the
    officers told him that he was being forced to move because
    he was causing a traffic hazard. His constitutional com-
    plaint is that this unwritten policy leaves far too much to
    the discretion of the police officer. He notes that what might
    seem to be a traffic hazard to one officer might not be for
    another. He also argues that by restricting speech on the
    basis of the observable effect on motorists, the motorists
    might be given a heckler’s veto.
    As we previously noted, “[i]f [Madison] had a policy that
    prohibited not just Ovadal’s, but all protests and all
    signs on all Beltline overpasses” the restriction would be
    “clearly content-neutral.” Ovadal, 
    416 F.3d at 536
    . By
    passing § 31.04(6)(m), the city appears to have taken our
    previous decision to heart. The ordinance itself is not before
    the court: the only significance of the ordinance is the effect
    that it has on any alleged unwritten policy. If the ordinance
    now replaces the behavior that is the subject of the com-
    plaint, making the alleged unconstitutional behavior
    effectively impossible, the request for forward-looking relief
    is moot. To put a finer edge on it: the only way that the
    request for declaratory or injunctive relief would not be
    rendered moot by the ordinance would be if Ovadal could
    point to some subset of expressive behavior that is currently
    allowed by the ordinance but would be banned by the
    alleged traffic hazard policy.
    The parties agreed at oral argument that the behavior
    that started this lawsuit—carrying signs over the Beltline
    6                                               No. 05-4723
    freeway—is now strictly banned regardless of the time of
    day, the effect on the motorists below, or the noticeable
    effects on traffic safety. At oral argument, Ovadal claimed
    that the ordinance does not ban non-sign protests, nor does
    it ban motorist-distracting signs from bridges over other,
    slower speed, roads in Madison. Ovadal posits that these
    two activities, which are not prohibited by the ordinance
    but would be subject to the alleged traffic hazard policy,
    show that the case or controversy is still alive. But those
    types of activities are not before the court in this appeal.
    There has been no showing that Madison has ever pre-
    vented or would prevent Ovadal from marching without
    signs over any sidewalk or bridge in Madison. Likewise,
    there is no evidence that Ovadal has ever been asked to
    move when demonstrating from a bridge over a slow-speed
    roadway. Such restrictions, if they existed, would raise
    significant constitutional questions. But we are now three
    years into this litigation and the evidence, the district
    court’s decision, and the briefs and arguments made here on
    appeal have not been directed at those questions or those
    types of behavior. If there are such instances, they are
    issues for a different lawsuit. It would be an advisory
    opinion in its worst form to use this forum to rule on the
    constitutionality of an alleged unwritten policy that might
    be used to prevent behavior that has never been the subject
    of the litigation at hand. Therefore, with respect to any
    unwritten traffic hazard policy, the request for declaratory
    and injunctive relief has been rendered moot by the passage
    of the ordinance.
    B. Damages
    However, the passage of the ordinance is not dispositive of
    the request for damages for any constitutional violation
    that might have been suffered in the past. The case comes
    to us on appeal after a bench trial: we defer to the district
    No. 05-4723                                                 7
    court’s findings of facts unless clearly erroneous, and will
    review questions of law de novo. Trustmark Ins. Co. v. Gen.
    & Cologne Life Re of Am., 
    424 F.3d 542
    , 551 (7th Cir. 2005).
    There are two questions before us: whether Madison
    violated Ovadal’s constitutional rights on the two occasions
    in the Fall of 2003 when he was forced off the overpasses,
    and whether Madison violated his constitutional rights by
    effectively banning him from other similar protests through
    an alleged unwritten policy.
    With respect to the two discrete incidents in September
    and October, the district court heard the testimony of eight
    witnesses and received sixteen exhibits. Without recounting
    the entirety of the evidence, we can summarize it as follows:
    Ovadal and his long-time companion Mike Foht testified
    that they did not see any noticeable effect on traffic, but
    several police officers—including a deputy sheriff who is not
    a defendant in the present suit— testified that traffic was
    impeded and dangerous. There was conflicting testimony
    about whether the accidents and reported near-accidents
    were the result of general curiosity about the activities of
    the protesters or whether the accidents were being caused
    by drivers’ reactions to the message that Ovadal and Foht
    were displaying about homosexuality. The court received
    evidence about the number of calls placed to 911 regarding
    the traffic, and the nature of the complaints that those
    callers made.
    In the end, the district court faced two possible factual
    scenarios. By one view of the evidence, Ovadal’s message
    angered drivers who then reacted and were distracted from
    the task of driving safely, resulting in a dangerous situation
    that Madison needed to address. By another view of the
    evidence, Ovadal’s presence on that day and under those
    driving conditions created a “spectacle” that led some
    drivers to be distracted from the task of safely navigating
    the Beltline and their distraction led to an escalating
    situation of near-accidents and anger at the traffic con-
    8                                               No. 05-4723
    gestion. As we noted on remand, if the findings of fact
    supported the first view, then the drivers were simply
    rabble, fuming at the content of Ovadal’s rabble-rousing
    speech, and “[t]he police must permit the speech and control
    the crowd; there is no heckler’s veto.” Ovadal, 
    416 F.3d at 537
     (quoting Hedges v. Wauconda Cmty. Unit Sch. Dist. No.
    118, 
    9 F.3d 1295
    , 1299 (7th Cir. 1993)).
    The court entered findings of fact that on the two dates in
    question the traffic safety problems were not caused by the
    content of the message on the signs that the protesters
    carried. Ovadal, No. 04-C-322-S, 
    2005 WL 3434402
    , at *1-2
    (W.D. Wis. Dec. 13, 2005). Thus, the court concluded,
    Madison’s decision to move the protesters from the bridge
    was not the result of the content of the speech. The evidence
    and testimony could certainly have supported such a finding
    of fact. “In weighing direct and circumstantial evidence, the
    trier of fact plays a particularly significant role as the
    arbiter of credibility: [W]e defer to the [trier of fact’s]
    determination of witnesses’ credibility.” United States v.
    Balzano, 
    916 F.2d 1273
    , 1285 (7th Cir. 1990) (citations and
    quotations omitted). Because the district court’s findings of
    fact are not clearly erroneous, we will not disturb them.
    The final question for us is whether Ovadal’s constitu-
    tional rights were violated by an alleged unwritten and
    widespread policy that effectively prevented him from
    engaging in protected speech. When we remanded the
    case, we noted that there was “no question that Ovadal has
    been completely banned from all Beltline pedestrian
    overpasses in the Madison area.” Ovadal, 
    416 F.3d at 537
    .
    The questions on remand, or so we thought, were whether
    the effective prohibition was capable of content-neutral
    application and whether the city could have imposed a
    ban on protests occurring on certain days of the week,
    during certain times, or depending on traffic conditions. 
    Id. at 537-38
    .
    No. 05-4723                                                   9
    When we last considered this case, it was on appeal
    after a grant of summary judgment in favor of Madison.
    Accordingly, we viewed all facts in the light most favor-
    able to Ovadal. 
    Id. at 535
    . With the benefit of a trial we now
    have additional facts that cast doubt on the version of
    events that the summary judgment proceedings portrayed.
    For example, testimony at trial indicated that Ovadal had
    been on Beltline overpasses with signs at least six times
    before the dates in question, and had interacted with the
    Madison police on several of those occasions without any
    restriction on his activities. Tr. Dec. 12, at 17, 68-69. The
    only other witness that Ovadal called, his frequent part-
    ner in these demonstrations Mike Foht, testified that he
    had been on Beltline overpasses between ten and twelve
    times in the years prior to the incidents in question and
    despite frequent interactions with Madison police had never
    been forced to move. Tr. Dec. 12, at 92-93. We find it
    particularly telling that on November 8, 2003 (after the
    events that led Ovadal to file this suit in which he
    alleges that he was “chilled and deterred” from exercising
    his First Amendment rights) Ovadal and Foht were back on
    a bridge over the Beltline. Tr. Dec. 12, 79-80. Once again,
    they interacted with a Madison police officer, and the officer
    informed them that they were free to continue their protest.
    
    Id.
     The facts, no longer viewed in a light most favorable to
    Ovadal, do not support the allegations that there was ever
    any absolute ban on Ovadal protesting from bridges or that
    he was chilled and deterred from exercising his rights.
    III. CONCLUSION
    In summary, the passage of the city ordinance has
    made any claim for declaratory and injunctive relief moot
    because the alleged violations cannot be repeated. We defer
    to the district court’s findings of fact that the actions of the
    defendants on the specific dates in question were not
    content-based restrictions on speech. The evidence at trial
    does not support any allegation that there was a general
    10                                           No. 05-4723
    unwritten policy that placed content-based prohibitions on
    Ovadal’s speech. The record indicates that Ovadal was not
    chilled or deterred from exercising his First Amendment
    rights. Therefore, there has been no constitutional harm
    cognizable under 
    42 U.S.C. § 1983
    . Accordingly, the judg-
    ment of the district court is AFFIRMED.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—11-20-06