Helbachs Cafe LLC v. City of Madison, Wisconsin ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3338
HELBACHS CAFÉ LLC,
Plaintiff-Appellant,
v.
CITY OF MADISON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:20-cv-758 — William M. Conley, Judge.
____________________
ARGUED MAY 27, 2022 — DECIDED AUGUST 15, 2022
____________________
Before ST. EVE, KIRSCH, and JACKSON-AKIWUMI, Circuit
Judges.
KIRSCH, Circuit Judge. After the public health department
for the City of Madison and Dane County, Wisconsin issued
a COVID-19 mask mandate, an owner of Helbachs Café
posted a sign: “Mask Free Zone. Please remove mask before
entering” and then took it down about 30 minutes later. Over
the next few days, Madison’s public health officials cited Hel-
bachs several times for violating its COVID-19 orders, and
2 No. 21-3338
then set a hearing to revoke Helbachs’ food and drink license
for cumulative violations. Helbachs sued the City of Madison,
the County of Dane, Madison Assistant City Attorney Marci
Paulsen, and employees of the health department, all in their
official capacities, under 42 U.S.C. § 1983, claiming that the
defendants retaliated against Helbachs in violation of the First
Amendment for posting its anti-mask sign. Before the district
court, Helbachs conceded that its claims against the individ-
ual defendants were duplicative of the claims against the mu-
nicipal defendants because it was only pursuing theories of
liability under Monell v. Department of Social Services, 436 U.S.
658 (1978).
The citations were later dismissed, and the revocation
hearing was not pursued. The first issue we must decide, then,
is whether Helbachs has standing to bring this First Amend-
ment retaliation claim. We conclude that it does because the
record shows that Helbachs suffered injury-in-fact beyond the
revoked citations and the threatened, but aborted, hearing.
However, Helbachs’ First Amendment claim fails under Mo-
nell because the defendants’ actions were not part of a larger
pattern or practice of retaliation. We affirm the district court’s
grant of summary judgment to the defendants.
I
During the early stages of the COVID-19 pandemic, on
July 7, 2020, Public Health Madison and Dane County
(PHMDC)—the health department for the city and the
county—issued Emergency Order #8 (Order 8), which in-
cluded many COVID-19 provisions, including a requirement
for businesses to adhere to a mask mandate (“Every individ-
ual, age five (5) and older, in Dane County must wear a face
covering that covers their nose and mouth when: … [i]n any
No. 21-3338 3
enclosed building where other people, except for members of
the person’s own household or living unit, could be present”).
Another requirement of Order 8, posted only on PHMDC’s
website, required businesses to post a “Masks Required” sign.
On July 13, the day Order 8 went into effect, Casey Hel-
bach, an owner of family owned and operated Helbachs Café,
posted a paper sign in the window of his café, reading, “Mask
Free Zone. Please remove mask before entering.” The sign
was posted for roughly 30 minutes before Casey voluntarily
took it down. Someone—unaffiliated with Helbachs—took a
picture of the sign while it was up and posted it online. That
post went viral. The same day, PHMDC received over 100
complaints (many being second-hand reports of the social
media post) against Helbachs and sent employees to investi-
gate Helbachs’ compliance with Order 8.
Over the next few days, PHMDC ended up citing Hel-
bachs three times for noncompliance with Order 8 (for failing
to post required signage and for failing to enforce the mask
requirement). Helbachs disputed the validity of all three cita-
tions, claiming the café was not out of compliance. On August
3, based on PHMDC’s determination that Helbachs had con-
tinued to violate Order 8, the Dane County Sheriff served Hel-
bachs with a Notice of Intent to Revoke License (the Notice),
putting Helbachs’ food and drink license in jeopardy. To
avoid revocation, the Notice required compliance with Order
8, as well as “[r]efraining from posting or communicating that
the premises is a ‘mask free zone’.” The Notice said that a
hearing would be held on the revocation, which was later set
for August 25.
A very public disagreement ensued. The viral social media
post about the sign, plus the issuance of the citations, drew
4 No. 21-3338
attention and cultivated what Helbachs’ landlord Terrence
Wall described as “a negative atmosphere” in the shopping
center housing the café, including at least three protests in
front of Helbachs. Online and local media covered the disa-
greement, complete with a Madison assistant city attorney is-
suing on-camera statements about the dispute. Helbachs cre-
ated a GoFundMe page to help fund a lawsuit against
PHMDC, where the Helbachs spoke out against PHMDC and
Order 8. Eventually, Wall said that the mounting complaints,
disruptions from protestors, and threats of boycotting his
shopping center (due to his “guilt by association” with Hel-
bachs) combined with PHMDC’s Notice that would revoke
Helbachs’ food and drink license, led to Wall’s decision not to
renew Helbachs’ lease, requiring Helbachs to leave the space
by August 31, 2020.
Meanwhile, on August 10, Helbachs filed a complaint
against the City of Madison, County of Dane, Madison Assis-
tant City Attorney Marci Paulsen, and PHMDC employees
Janel Heinrich and Bonnie Koenig, all three individuals in
their official capacity, in Dane County Circuit Court, seeking
damages for a violation of Helbachs’ First Amendment rights,
and an injunction prohibiting the defendants from selectively
enforcing the signage requirement and from bringing any en-
forcement action against them, among other federal and state
claims (which we do not mention further because Helbachs
does not pursue them on appeal). Two days later, the defend-
ants removed the case to federal court.
On August 14, the parties jointly requested to mediate
their dispute, and a settlement conference was set for August
18. Although the parties did not reach full and final settle-
ment, Helbachs struck its request for a preliminary injunction
No. 21-3338 5
on August 19 based on a stipulation that the citations and the
hearings related to the Notice would be dismissed. In turn,
around August 20, PHMDC cancelled the revocation hearing
and dismissed the Notice and citations entirely.
Back in federal court, in spring 2021, both parties moved
for summary judgment. In November 2021, the district court
granted summary judgment to the defendants on all federal
claims, finding in relevant part that Helbachs had failed to put
forth evidence sufficient to establish a violation of § 1983 un-
der Monell, and that regardless, the defendants did not violate
Helbachs’ First Amendment rights because Helbachs’ as-
serted speech was not protected speech. The district court de-
clined to exercise supplemental jurisdiction over the state law
claims and remanded those claims to state court. Helbachs
now appeals only the grant of summary judgment on its First
Amendment retaliation claim for damages under Monell.
II
The relationship between the defendants and Helbachs
has changed considerably since Helbachs sued in state court
in August 2020, raising questions over whether we have juris-
diction. See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 461 (7th
Cir. 2020) (we have an independent obligation to assure our-
selves of jurisdiction). Helbachs framed its case around two
injuries for which it sought damages: the citations and the No-
tice. But with both now dismissed, and no fine collected, the
briefs lacked information on any injury Helbachs ever suf-
fered which damages would redress. Without any injury, Hel-
bachs would not have standing to pursue its retaliation claim.
See Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 333 (7th
Cir. 2019) (“If the plaintiff does not claim to have suffered an
injury that the defendant caused and the court can remedy,
6 No. 21-3338
there is no case or controversy for the federal court to re-
solve.”).
A plaintiff suffers an injury redressable with damages
when the defendants’ actions violate the law, when and if that
results in a harm to the plaintiff. Ewing v. MED-1 Sols., LLC,
24 F.4th 1146, 1151–52 (7th Cir. 2022) (referencing TransUnion
LLC v. Ramirez, 141 S. Ct. 2190, 2209–13 (2021)). Helbachs lacks
another sort of injury that usually accompanies a retaliation
claim because it provided no evidence that its speech was
abridged due to the retaliation. Although the Notice forbade
putting the sign back up, Helbachs had no intention of doing
so (based on the record we have before us, the café took it
down voluntarily before the citations were issued). Rather, all
that remained in the appellate briefs was a naked statement
that a completed First Amendment violation—retaliation—
had occurred.
The Supreme Court has made clear that when asserting a
statutory violation, a concrete injury must be more than the
bare claim that a violation occurred. See TransUnion, 141 S. Ct.
at 2205 (“[U]nder Article III, an injury in law is not an injury
in fact. Only those plaintiffs who have been concretely
harmed” may sue). But the Supreme Court has not addressed
whether, if the asserted violation is the act of retaliation, that
act alone would be sufficiently concrete injury-in-fact. How-
ever, Justice Thomas’ dissent in TransUnion suggested that it
would be, reasoning that where a law recognizes a private
right, a plaintiff asserting a violation of that right need not
separately allege harm from that violation to have Article III
standing because the offending act imports a harm to the
party. Id. at 2216–17 (Thomas, J., dissenting).
No. 21-3338 7
But we do not need to decide the contours of a First
Amendment retaliation injury here. The facts in the summary
judgment record show that Helbachs suffered concrete injury
beyond the dismissed citations and abandoned Notice. See
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 235 (1990) (we
may rely on evidence entered into “the record of the proceed-
ings below”) (internal quotations omitted); see also Flynn v.
FCA US LLC, 39 F.4th 946, 952 (7th Cir. 2022) (setting out the
standard of proof required at summary judgment to show
standing). Exhibit 9, which is an uncontradicted affidavit
from Helbachs’ landlord Terrence Wall, was in the record at
summary judgment, so we may consider it for standing pur-
poses. Meese, 481 U.S. at 473–74 (relying on uncontradicted,
detailed affidavits showing that plaintiff had standing).
In Exhibit 9, Wall states that he decided not to renew Hel-
bachs’ lease because the business was issued the Notice, and
the date of Exhibit 9, August 20, 2020, shows that this decision
occurred before the Notice was dismissed. There is no dispute
that Helbachs did move locations after this occurred. Draw-
ing the favorable inference from these undisputed facts that
Helbachs lost its lease because of the defendants’ actions,
these injuries are sufficiently concrete to confer standing. See
Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S.
118, 125 (2014) (parties did not dispute plaintiff’s “allegations
of lost sales and damage to its business reputation” and the
Court held that those were injuries-in-fact sufficient to give
plaintiff standing under Article III); Meese, 481 U.S. at 475–76,
(finding traceability because “the alleged injury stems from
the Department of Justice’s enforcement of a statute”).
8 No. 21-3338
III
Assured of our jurisdiction, we reach the merits of Hel-
bachs’ First Amendment retaliation claim, which, as before us
on a grant of summary judgment, we review de novo. Smith
v. Dunn, 368 F.3d 705, 708 (7th Cir. 2004). A Monell claim has
two parts. First, as any § 1983 plaintiff must, Helbachs must
show that it was deprived of a federal right. Dean v. Wexford
Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021). Second, in
order to hold a municipality liable for that constitutional vio-
lation, Monell requires a plaintiff show that the violation ei-
ther (1) occurred as a result of a municipal custom or policy
or (2) was committed by an individual with final policymak-
ing authority. Sweet v. Town of Bargersville, 18 F.4th 273, 277
n.2 (7th Cir. 2021). We can assume without deciding that the
defendants deprived Helbachs of its First Amendment rights
because Helbachs’ Monell claim fails to provide evidence suf-
ficient to meet the latter requirement.
Helbachs does not challenge Order 8 as facially unconsti-
tutional or argue that retaliation was the result of an action by
a final policymaker. Rather, its three theories of liability rest
entirely on the argument that the retaliation occurred as a re-
sult of a municipal custom or practice: (1) that Order 8 was an
unconstitutional as-applied express policy because it implic-
itly prohibited anti-mask signs; (2) that PHMDC had a custom
of pre-writing citations which resulted in constitutional dep-
rivations; and (3) that the defendants failed to train PHMDC
employees adequately resulting in the violation of Helbachs’
constitutional rights. But each theory fails under the same
straightforward application of the requirements for Monell. A
plaintiff challenging a facially lawful policy (express or im-
plied) “generally must prove a prior pattern of similar
No. 21-3338 9
constitutional violations resulting from the policy.” Dean, 18
F.4th at 236 (“[W]here the policy relied upon is not itself un-
constitutional, considerably more proof than the single inci-
dent will be necessary in every case to establish both the req-
uisite fault on the part of the municipality, and the causal con-
nection between the ‘policy’ and the constitutional depriva-
tion.”) (citing City of Okla. City v. Tuttle, 471 U.S. 808, 824 (1985)
(plurality) (emphasis omitted). Likewise, “Monell claims
based on allegations of an unconstitutional municipal practice
or custom ... normally require evidence that the identified
practice or custom caused multiple injuries.” Chatham v. Da-
vis, 839 F.3d 679, 685 (7th Cir. 2016). In most cases (see below),
failure to train claims are no different. See J.K.J. v. Polk Cnty.,
960 F.3d 367, 379–80 (7th Cir. 2020) (a Monell failure to train
theory requires showing the municipality had notice that
gaps in its training would cause constitutional violations, and
in many cases, notice is shown with “proof of a prior pattern
of similar constitutional violations”).
Helbachs provides no evidence of any pattern of similar
violations against other businesses, for any of its theories. See
Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 675 (7th Cir.
2009) (concluding the plaintiff “could not show that the
[municipality] had a custom or practice of sanctioning
retaliation in violation of the First Amendment” because the
plaintiff’s evidence failed to show the municipality
“condoned a continual practice” of like retaliatory acts). At
oral argument, Helbachs conceded there was no evidence to
this in the record but claimed that there were additional cases
of similar actions taken against other businesses. But
Helbachs provided nothing from the record to support this
claim (nor do we know what supposed policy or custom it
would support—other instances of using Order 8 to prevent
10 No. 21-3338
businesses from posting a sign? Of pre-writing citations? Of
sending poorly trained employees out to violate rights?), so
we cannot consider those alleged facts introduced at
argument on appeal. See FW/PBS, Inc., 493 U.S. at 235 (we
cannot rely on factual representations made only for the first
time in appellate briefs or at argument that are not already in
the record). In turn, Helbachs’ as-applied policy claim under
Monell dies on the vine—without any evidence of a pattern or
practice, no reasonable jury could find that retaliation against
Helbachs occurred as a result of any municipal policy, express
or implied.
Recognizing that rare circumstances arise in which the
need for better training “is so obvious” that the city should
have effectively been on notice, even in the absence of past
violations, J.K.J., 960 F.3d at 380, the defendants’ public health
department compliance training program presents no such
obvious risk. Cf. id. (“[T]he need to train officers in the consti-
tutional limitations on the use of deadly force can be said to
be ‘so obvious,’ that failure to do so could properly be charac-
terized as ‘deliberate indifference’ to constitutional rights.”)
(quoting City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989)).
The compliance program Helbachs takes issue with sends
PHMDC employees out to conduct health inspections of res-
taurants, an activity that presents no obvious risk to the First
Amendment rights of food and drink license-holders. Though
Helbachs views the risk of unconstitutional retaliation
through the issuance of citations as having been obvious, it
provides no evidence to that, save for its own experience with
PHMDC in this case.
AFFIRMED