Milwaukee Deputy Sheriffs Asso v. David Clarke, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1515
M ILWAUKEE D EPUTY S HERIFFS’ A SSOCIATION,
itself and on behalf of its members,
M ARK Z IDEK and ILIR S INO,
Plaintiffs-Appellees,
v.
D AVID A. C LARKE, JR., E DWARD B AILEY and
M ILWAUKEE C OUNTY,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 CV 0602—Lynn Adelman, Judge.
A RGUED S EPTEMBER 23, 2008—D ECIDED D ECEMBER 4, 2009
Before B AUER, C UDAHY, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. When the Milwaukee
County Sheriff invited a religious group to speak at the
Sheriff’s department leadership conference, some officers
took offense to the Christian-focused presentation. And
when the Sheriff allowed the same group to speak at a
2 No. 08-1515
number of mandatory employee meetings, the officers
complained. When the presentations continued, two
Milwaukee County Sheriff’s deputies, along with their
union, sued under 18 U.S.C. § 1983, alleging a violation
of the Establishment and Free Exercise Clauses of the
First Amendment. The district court granted the plain-
tiffs’ motion for summary judgment on their Establish-
ment Clause claim, and the defendants appealed. Because
the group’s presentations during mandatory employee
gatherings gave, at the least, the appearance of endorse-
ment by the Sheriff’s Department, we conclude that the
defendants violated the Establishment Clause. Therefore,
we affirm.
I. BACKGROUND
In April 2006, the newly-formed Fellowship of the
Christian Centurions (“the Centurions”), a peer support
group created specifically for law enforcement officers,
sent flyers to law enforcement agencies in the state of
Wisconsin. The advertisement offered the officers an
opportunity to discuss issues unique to them, but from
a religious perspective. This included discussions on
impacting others for Christ and on Christ’s impact in
their lives. The flyer’s primary purpose, however, was to
invite officers to the group’s kickoff seminar, which
featured then Milwaukee Police Chief Nannette Hegerty
and former Green Bay Packer John Anderson.
The Centurions’ mission left an impression on Milwau-
kee County Sheriff David Clarke, Jr. Upon receiving the
flyer, he arranged a meeting with the group’s founders,
No. 08-1515 3
George Papachristou, a former City of Milwaukee police
officer, and Randy Melang, a lay minister. Sheriff Clarke
and the group leaders met for over an hour, culminating
with an invitation to address the officers in person.
The first presentation occurred at the Sheriff’s depart-
ment leadership conference. Attendance was mandatory
for all deputies with the rank of Sergeant or above. The
Sheriff spoke first. He announced that he would be
making upcoming promotions to the rank of Captain
and distributed written material that included a quota-
tion from the Bible. The handouts listed the qualities a
leader should look for in his inner circle—one of which
was “people of faith.” Approximately one hour after the
Sheriff’s speech, one of the Centurion organizers ad-
dressed the deputies with the following remarks:
In a few minutes, George [Papachristou] will
describe an [opportunity] coming up for police,
parole and correctional [officers]. But first, I’d like
to mention a few things for your consideration.
Whether or not we acknowledge it, each of us here today
has a high calling and corresponding responsibility.
Civil government was God’s idea. The first several
verses of Romans 13 tell us He established government
and that people in authority are ministers of God
assigned to promote good and punish evil. The implied
accountability is a sobering thought. Your task is
unique in that society expects you to be a force
for integrity, strength and justice; an officer who
makes quick, correct analyses that lead to decisive
actions. This can certainly be a catalyst for stress,
4 No. 08-1515
anxiety and introspection. You often see the worst
of the human perspective. You’re going to be
critiqued everywhere from the kitchen table to
radio talk shows. Being the least understood and
experiencing a lack of support are probably com-
monplace. Being taken for granted is a given. How
do you balance all this? Where do [you] gain
strength and become refreshed; healed from scars
that can go deep? Can you shut this all off and be
a balanced parent and spouse? Or neighbor/friend?
Grappling with enormous pressure while realizing
that some level of evil plays a role in each of our
lives can be discouraging, maybe defeating. That’s
why Paul tells us in his letter to Timothy to pray for
those in authority. I don’t like to admit it but my life is
fragile—the book of James tells us that life appears like
a mist and it’s gone. I’m not really the captain of my
own ship. Fortunately, the same God who ordained
authority inspired a book and sent a counselor that
promises to give us guidance on how to navigate life’s
road.
(emphasis added). Another Centurion affiliate distributed
invitations to the organization’s kickoff event at Elmbrook
Church and made available copies of a book on Christian
faith entitled “Putting the Pieces Back Together; How
Real Life and Real Faith Connect.”
After the conference, the Sheriff arranged for addi-
tional presentations at the department roll calls. Roll calls
are mandatory meetings that occur at the beginning of
each work shift; all deputies scheduled for that work shift
No. 08-1515 5
are required to attend. Despite complaints from other
employees, the Centurions made presentations during
16 roll calls between May 9 and May 16, 2006, during
which they distributed the flyers and books featured at
the leadership conference.
The plaintiffs, Ilir Sino (a Muslim) and Mark Zidek (a
Catholic) were present during the roll call presentations
and, together with their union, brought a § 1983 action
against Sheriff Clarke and the Sheriff’s Captain, Edward
Bailey, in their official capacities, and Milwaukee County,
alleging a violation of the Establishment Clause and the
Free Exercise Clause of the First Amendment. The plain-
tiffs sought damages and an injunction to prevent
future presentations from the Centurions at department
events. Both sides filed motions for summary judgment.
The district court granted the plaintiffs’ motion as to
their Establishment Clause claim and the defendants’
motion as to the Free Exercise claim. The court also
awarded $38,687.41 in attorneys’ fees and one dollar in
damages to each of the plaintiffs. The defendants now
appeal.
II. ANALYSIS
A. The Establishment Clause Violation
The First Amendment to the United States Constitution,
which is applicable to states through the Fourteenth
Amendment, provides, in relevant part, that “Congress
shall make no law respecting an establishment of
religion . . . .” U.S. C ONST. amend. I. This clause sets forth
6 No. 08-1515
a principle of government neutrality. It prohibits the
government from promoting “a point of view in religious
matters” or otherwise taking sides between “religion
and religion or religion and nonreligion.” McCreary
County v. ACLU, 545 U.S. 844, 860 (2005) (citations omit-
ted). The Supreme Court set forth, in Lemon v. Kurtzman, a
three-part test to evaluate Establishment Clause claims.
403 U.S. 602 (1971). Under the Lemon test, government
action violates the Establishment Clause if it has any of
the following characteristics: (1) a non-secular purpose;
(2) the principal or primary effect of advancing or in-
hibiting religion; or (3) fostering an excessive govern-
ment entanglement with religion. Id. at 612. The plaintiffs
argue that the Sheriff’s actions had the purpose or effect
of advancing religion, so we focus our analysis on the
first two elements.
The first prong of the Lemon test requires the plaintiff
to demonstrate that the government’s actual purpose
was to endorse or disapprove of religion. Books v. Elkhart
County, 401 F.3d 857, 863 (7th Cir. 2005). For this inquiry,
we look through the eyes of an objective observer.
McCreary County, 545 U.S. at 862. Although the govern-
ment’s articulation of a secular purpose is not sufficient
to withstand First Amendment scrutiny, it is entitled to
our deference “as long as it is not a sham.” Ind. Civil
Liberties Union v. O’Bannon, 259 F.3d 766, 771 (7th Cir.
2001). Furthermore, the Supreme Court has held that
the government lacks a secular purpose under Lemon
only when “there is no question that the statute or
activity was motivated wholly by religious considera-
tions.” Books, 401 F.3d at 863 (quoting Lynch v. Donnelly,
No. 08-1515 7
465 U.S. 668, 680 (1984)). As the Court recognized in
McCreary, the government does not generally act
unconstitutionally with the predominant purpose of
advancing religion. 545 U.S. at 863. And few cases have
involved conduct or factual circumstances so patently
religious as to be dispositive of the government’s
secular purpose.
The second prong of the Lemon test, however, requires
no inquiry into the government’s intent. The appearance of
endorsement of religion alone can send a “message to
nonadherents that they are outsiders, . . . and an accompa-
nying message to adherents that they are insiders . . . .”
Lynch, 465 U.S. at 688 (O’Connor, J., concurring). There-
fore, a government practice can also violate the Estab-
lishment Clause if a “reasonable person, apprised of the
circumstances surrounding the [challenged government
act], would conclude that [it] amounted to an endorse-
ment of religion.” Mercier v. Fraternal Order of Eagles, 395
F.3d 693, 705 (7th Cir. 2005). The objective “reasonable
person” in this test is presumed to be “informed . . . [and]
familiar with the history of the government practice at
issue.” Vasquez v. L.A. County, 487 F.3d 1246, 1256 (9th
Cir. 2007) (citation omitted).
Traditionally, outside organizations had limited access
in disseminating information to the Sheriff’s deputies.
Most sent flyers to be posted on the bulletin board or
read aloud to the officers. Very few organizations had
been invited to make personal presentations, and such
invitations had been limited to groups that partnered
with the department in some form. For instance, Johnson’s
Bike Company, who also appeared at the conference,
8 No. 08-1515
supplied the department with bicycles, and Companions
Rest, another invitee, donated money to the department’s
canine unit. Indeed, the Centurions also provided a
benefit to the officers in the form of a support group. But
their unique faith-based approach sets them apart from
the secular organizations invited to speak. The Centurions
offered peer support, but also sought to foster discussion
on how the officers could “impact others for Christ” and
on Christ’s impact in their lives.
This presents a problem for the Sheriff because the
Establishment Clause prohibits the government from
“promot[ing] or affiliat[ing] itself with any religious
doctrine or organization.” County of Allegheny v. ACLU,
492 U.S. 573, 590 (1989). During the Centurions’ initial
presentation at the leadership conference, Mr. Melang
referenced Romans 13, from the Bible, which, according
to him, “tell[s] us that [God] established government
and that people in authority are ministers of God
assigned to promote good and punish evil.” He also stated
that “the same God who ordained authority inspired a
book and sent a counselor that promises to give us guid-
ance on how to navigate life’s road.” Following the
speech, the Centurions made available a book entitled
“Putting the Pieces Back Together; How Real Life and
Real Faith Connect.” In light of the speaker’s comments
during the presentations, one can argue that the Sheriff
should have taken affirmative steps to avoid the appear-
ance of endorsement. See Freedom from Religion Found. Inc.
v. City of Marshfield, 203 F.3d 487, 497 (7th Cir. 2000).
Instead, he promoted this perception earlier in the con-
ference when he circulated a handout in which he under-
No. 08-1515 9
lined “people of faith” as a quality leaders should look
for when building their “inner circle.” Notably, this
occurred during a discussion on promotions to the rank
of Captain.
The Sheriff’s perceived or actual endorsement of the
Centurions’ message is readily apparent from these
facts. The Supreme Court’s decision in Santa Fe
Independent School District v. Doe presents a useful anal-
ogy. 530 U.S. 290 (2000). In determining that an invoca-
tion delivered before a football game created the percep-
tion of endorsement by the school, the Court in that case
looked to the following factors: the invocation was “deliv-
ered to a large audience assembled as part of a regularly
scheduled, school-sponsored function conducted on school
property”; “the pregame ceremony [was] clothed in the
traditional indicia of school sporting events . . . “; and the
crowd included many who displayed the school colors
and insignia. Id. at 307-08 (emphasis added). Based on
these observations and others, the Court concluded that
“members of the listening audience must perceive the
pregame message as a public expression of the views of
the majority of the student body delivered with the
approval of the school administrator.” Id. at 308. In con-
trast, in Good News Club v. Milford Central School, the
Court focused on the government’s neutrality, as other
groups had access to the school, and the religious club’s
meetings were held after school hours, were not
sponsored by the school and were open to the public, in
concluding that the Establishment Clause did not require
the school to exclude the religious organization from
its property. 533 U.S. 98, 113 (2001).
10 No. 08-1515
Although the above examples concern cases applying
the First Amendment in the school context, they provide
useful illustrations of what a reasonable person would
perceive to be endorsement. In this case, the Centurions
gave a heavily Christian-focused presentation at a manda-
tory conference for government employees, and the
Sheriff subsequently invited them to present at man-
datory roll calls during work hours, granting them unfil-
tered access to a captive audience of subordinates. At
each roll call, they were personally introduced by the
Sheriff’s command staff and were permitted to distribute
additional Christian-focused literature. Even more
telling was the Sheriff’s refusal to cease the presentations
after some of the deputies complained of the Centurions’
proselytizing. He took no steps to disentangle himself
or the Department from any of the religious messages, see
Santa Fe, 530 U.S. at 306, and his actions, at the least,
appeared to place the Centurions’ in the same category
as the other “partnering” organizations, like Johnson’s
Bike Company—all of whom presumably received the
Department’s approval.
We do not suggest, however, that religiously affiliated
groups are always constitutionally barred from working
with or speaking to government employees. Rather,
we limit our analysis to the facts of this case, where an
authority figure invited a Christian organization that
engaged in religious proselytizing to speak on num-
erous occasions at mandatory government employee
meetings. A reasonable observer would have been well
aware that the Sheriff did not extend such privileges
lightly. Most other organizations that received similar
No. 08-1515 11
access shared a common attribute: the Sheriff had ex-
pressed an interest in partnering with them.1 Indeed, it
would be difficult to interpret the Sheriff’s actions
as anything other than endorsement.
B. First Amendment Did Not Compel Access
The Sheriff, nonetheless, argues that the Free Speech
Clause of the First Amendment compelled him to grant
access to the Centurions.2 He contends that, by allowing
the presence of other support groups such as the
Alliance for Blacks in Law Enforcement and the National
Latino Peace Officers Association, the department has
created a nonpublic forum in its leadership conference
and roll calls. He argues that the Centurions offer deputies
the same support, but from a religious viewpoint. As
1
Among the other organizations invited to speak were: the
Alliance for Blacks in Law Enforcement, United Performing
Arts Fund, Big Brothers and Big Sisters, the United States
Marine Corps, the National Latino Peace Officers Association,
the United Way, and the Child Abuse Prevention Fund.
2
The Sheriff suggests that he is making a Free Exercise chal-
lenge. Brief of Defendants-Appellants at 12. However, their
actual arguments invoke the Free Speech clause of the First
Amendment, and we analyze it as such here. There is no Free
Exercise issue. Refusing to allow the Centurions to present to
the Sheriff and his deputies places no burden on the Centuri-
ons’ exercise of religion. Locke v. Davey, 504 U.S. 712, 720 (2004);
Vision Church v. Vill. of Long Grove, 458 F.3d 975, 996 (7th Cir.
2006).
12 No. 08-1515
such, the Sheriff believes he could not have constitu-
tionally denied the Centurions the opportunity to
present based on their religious viewpoint.
Under a Free Speech forum analysis, the forum
category defines the level of scrutiny applicable to the
challenged government action. Good News Club, 533 U.S.
at 106; Choose Life Ill., Inc. v. White, 547 F.3d 853, 864 (7th
Cir. 2008). The traditional public forum is a public space
(such as a street or a park) that has long been used
and open for expressive activity. Perry Educ. Ass’n v.
Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983). A desig-
nated public forum refers to property or mediums of com-
munication that, although not traditionally open to the
public, have been opened for public discourse. Choose
Life, 547 F.3d at 864. The government’s exclusion of a
speaker in traditional or designated public fora is subject
to strict scrutiny, meaning that the exclusion must be
necessary to serve a compelling state interest and must be
narrowly tailored to achieve that interest. Id. The third
category, the nonpublic forum, refers to all other gov-
ernment property. There, the government can reserve
its space for certain groups or for the discussion of certain
topics. Good News Club, 533 U.S. at 106. Exclusion from
nonpublic fora is permitted subject to two conditions:
the government cannot engage in viewpoint discrimina-
tion against speech otherwise within the forum’s limita-
tions, and the restriction must be reasonable in light of
the purpose served by the forum. Id. at 106-07 (quotations
omitted).
The Sheriff is mistaken that the department has created
a forum of any kind and so, the Centurion’s desire to
No. 08-1515 13
access the deputies present at the leadership confer-
ence and roll calls does not trigger a Free Speech forum
analysis. The Supreme Court recognizes a distinction
between claims asserting access to a forum and claims
asserting access to a captive audience. Minn. State Bd. for
Cmty Coll. v. Knight, 465 U.S. 271, 286 (1984). In Knight, a
group of college faculty wished to share its policy
views with the state by accessing the specific employee
representatives from whom the state took advice. The
Supreme Court held that the forum analysis was not
applicable because the faculty asserted an entitlement to
a government audience, rather than the physical space
in which to speak. Id. at 286. Likewise, in Berger v.
Rensselaer Central School Corp., we found the forum
analysis not applicable to a Christian organization who
sought permission to distribute Bibles at a local ele-
mentary school. 982 F.2d 1160 (7th Cir. 1993). We recog-
nized that the organization sought access to the
children (the audience) and not the facilities. Id. at 1165.
This is equally true here. The Centurions’ real desire
is not to access a public space in which to hold their
meetings; their interest lies in accessing the Sheriff’s
deputies as an audience.
Furthermore, the Sheriff’s invitation to the Centurions
and other organizations does not create a forum of any
kind. The Sheriff invited organizations with which it
wished to partner, and the government may do so
without creating an open forum. See, e.g., Greer v. Spock,
424 U.S. 828, 838 n.10 (1976) (“The fact that other
civilian speakers and entertainers had sometimes been
invited to appear at Fort Dix did not of itself serve to
14 No. 08-1515
convert Fort Dix into a public forum . . . .”); May v. Evans-
ville Vanderburgh Sch. Dist., 787 F.2d 1105, 1113 (7th Cir.
2007) (“A classroom does not become a public forum
because a guest lecturer from the outside is invited to talk
to the class.”). The Centurions, on whose behalf the
Sheriff makes this argument, have no constitutional right
to impose their views upon a government audience.
We therefore reject the Sheriff’s attempts to seek refuge
under the Free Speech Clause; it does not create a con-
stitutional obligation for the Sheriff to allow the
religious proselytizing that occurred here.
III. CONCLUSION
For these reasons, we A FFIRM the judgment of the
district court.
12-4-09