Pouillon v. Owosso, City Of

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0093P (6th Cir.)
File Name: 00a0093p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

JAMES L. POUILLON,

Plaintiff-Appellant,


No. 98-1967
v.

>
CITY OF OWOSSO; SERGEANT 
SHARON LITTLE; and OFFICER 

Defendants-Appellees. 
W. G. BLANCHETT,

1
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-70413—Anna Diggs Taylor, District Judge.
Argued: September 23, 1999
Decided and Filed: March 16, 2000
Before: BOGGS and DAUGHTREY, Circuit Judges; and
DONALD, District Judge.*
*
The Honorable Bernice B. Donald, United States District Judge for
the Western District of Tennessee, sitting by designation.
1
2 Pouillon v. City of Owosso, et al. No. 98-1967
_________________
COUNSEL
ARGUED: Michael J. Gildner, SIMEN, FIGURA &
PARKER, Flint, Michigan, for Appellant. Marcia L. Howe,
JOHNSON, ROSATI, LaBARGE, ASELTYNE & FIELD,
Farmington Hills, Michigan, for Appellees. ON BRIEF:
Michael J. Gildner, SIMEN, FIGURA & PARKER, Flint,
Michigan, for Appellant. David R. Brinks, JOHNSON,
ROSATI, LaBARGE, ASELTYNE & FIELD, Lansing,
Michigan, for Appellees.
_________________
OPINION
_________________
BOGGS, Circuit Judge. James L. Pouillon was arrested by
Owosso, Michigan city police while protesting on public
property against abortion. The arrest was ostensibly for
“refusing a lawful police order” to move, and “obstructing
passage to a public building.” Pouillon sued the City of
Owosso and two of its police officers, under 42 U.S.C.
§ 1983, for violating his clearly established constitutional
rights to freedom of speech, religion, and assembly by
arresting him for protesting abortion while standing with a
sign in front of city hall. The district court denied his motion
for summary judgment and, after a jury found against him, his
renewed motion for judgment as a matter of law. He appeals
these rulings, and also contends that the district court
committed reversible error in submitting to the jury the issue
of defendants’ qualified immunity, rather than submitting
special interrogatories on the basis of which the court would
then decide the question of whether the defendants’ actions
were qualifiedly immune. He also appeals the district court’s
dismissal sua sponte of his claim for punitive damages. The
district court submitted the case to a jury under instructions
that misstated and conflated the principles of qualified
immunity, First Amendment rights, and freedom from
arbitrary arrest. We therefore remand this case for further
14 Pouillon v. City of Owosso, et al. No. 98-1967 No. 98-1967 Pouillon v. City of Owosso, et al. 3
reasonable juror could have found for the nonmoving party.” proceedings under the appropriate standards, as set forth in
Ibid. The standard used by this court is thus “identical to the this opinion.
one used by the district court.” Phelps v. Yale Sec., Inc., 986
F.2d 1020, 1023 (6th Cir. 1993). I
Because, as has been explained above, there are issues of James Pouillon is a dedicated anti-abortion protester whose
material fact requiring jury decision, judgment as a matter of non-working life is largely devoted to activism in that cause.
law would not be appropriate in this case. Accordingly we He was a familiar figure on the streets of Owosso, where he
affirm the district court’s denial of Pouillon’s motions for staged abortion protests for a portion of each day almost every
judgment as a matter of law. weekday for over ten years. On the date he was arrested, he
had decided to move his protest from his customary post on
V the sidewalk to a position on a small plaza separating upper
and lower short flights of steps to city hall, or on the steps
Based on the record before us, we hold that the judge’s themselves. On the sidewalk, he had often been the target of
instructions, properly objected to by the plaintiff, did not state verbal abuse as well as assorted missiles, and had once been
the law correctly. We further hold that the record reveals a almost run down by a motorist who swerved onto the
genuine issue of material fact as to the conduct of Pouillon on sidewalk and drove straight at him. He had also been issued
the day in question, and as to whether he could be a ticket on the sidewalk by Sergeant Little on an earlier
constitutionally arrested for those actions. Finally, we make occasion for violating a city ordinance banning signs in the
no determination on the question of qualified immunity, but public right-of-way. However, Sergeant Little testified that
refer the district court to the controlling Supreme Court and this incident involved a large, free-standing sign rather than
Sixth Circuit decisions, should a determination on qualified Pouillon’s usual hand-held sign, and that it was the sign,
immunity become necessary on remand. For the foregoing rather than Pouillon’s presence, that had constituted the
reasons, we AFFIRM in part and REVERSE in part, and sidewalk obstruction and resulted in his ticket on that earlier
REMAND this case to the district court for further occasion.
proceedings in accordance with this opinion.
On December 22, 1994, Sergeant Little and Officer
Blanchett, responding to a complaint about Pouillon’s
presence there, went to city hall’s steps and ordered him to
move to the sidewalk. Pouillon contends that the reason they
gave is that he was on private property and in any case was
violating the doctrine of separation of church and state. They
deny this and claim that they told him he was obstructing
entry to and egress from city hall. In any event, when he
refused to move, he was arrested under City Ordinance 19-27,
which prohibits impeding a police officer in the conduct of
his or her duties.
The police assert that Pouillon was actively seeking, and
that he admitted that he wanted, to be arrested. Pouillon
denies this. The arrest itself appears to have been handled
4 Pouillon v. City of Owosso, et al. No. 98-1967 No. 98-1967 Pouillon v. City of Owosso, et al. 13
with some cordiality. For example, the officers moved his III
handcuffs from behind his back to the front of his body so
that Pouillon could be more comfortable in the police cruiser; One further issue remained in this trial, and that is whether
after he was taken to the police station, searched, and booked, the manner of Pouillon’s arrest, if it was not lawful, was so
he was released on a personal recognizance bond; Sergeant outrageous as to warrant punitive damages. In some cases
Little drove him back to his car so that he could be on time this could hinge on contested questions of fact. Pouillon
for work. Nonetheless, Pouillon charges that the police contends the district court erred in dismissing sua sponte his
conduct was outrageous, constituted an abuse of power, and claim for such damages.
warrants punitive damages, in addition to compensatory
damages for violation of his civil rights. Dismissal by the district court sua sponte of a plaintiff’s
claim for exemplary damages is reviewed for abuse of
II discretion. See Gordon v. Norman, 788 F.2d 1194, 1199 (6th
Cir. 1986). In the latter case, this court held that the award
Sergeant Little and Officer Blanchett both testified at trial of punitive damages for violations of civil rights “involves an
that, in their judgment, Pouillon and his sign constituted an evaluation of the nature of the conduct in question, the
obstruction of access to city hall, or would intimidate others wisdom of some form of pecuniary punishment, and the
who might wish to use the steps. Based on this judgment, and advisability of a deterrent. Therefore the infliction of such
given that they had been dispatched there due to a complaint, damages and the amount thereof when inflicted are of
they asked Pouillon to move to the sidewalk. Their defense necessity within the discretion of the trier of fact.” Ibid. As
to Pouillon’s charge that the arrest constituted an illegal noted earlier, Pouillon’s arrest was handled in a highly
deprivation of his First and Fourth Amendment rights is, first, relaxed and cordial fashion, ending in his release on his own
that the restriction was a reasonable one since it left Pouillon recognizance and his delivery, courtesy of Sergeant Little, to
alternative avenues of communication (the sidewalk), and his own vehicle. We find that the district court did not abuse
finally, that even if his allegations on this issue were taken as its discretion in determining that the police’s conduct in this
true, the doctrine of qualified immunity shields them from instance hardly rises to the level of egregiousness justifying
liability. punitive damages, even if it is found at trial that the arrest was
unlawful and that compensatory damages are due.
Pouillon argues: (a) that his constitutional rights,
specifically of freedom of speech, religion, assembly, and IV
freedom from unlawful arrest, were violated, in that the
officers’ restriction of his freedom of speech, even if Since it involves a question of law, this court reviews de
construed as a time, place, and manner regulation, was not a novo a district court’s denial of a motion for judgment as a
reasonable one; and (b) that the trial court should have matter of law (motion for a directed verdict), and of a
rejected the defendants’ qualified immunity defense and renewed motion for judgment as a matter of law (motion for
granted plaintiff’s motion for judgment as a matter of law judgment notwithstanding the verdict). See Moore v. Kuka
since, as he argues, there were no factual disputes permitting Welding Systems & Robot Corp., 171 F.3d 1073, 1078 (6th
such a defense, in that any reasonable officer would have Cir. 1999) (citing K & T Enterprises, Inc. v. Zurich Ins. Co.,
known that her actions involved such a constitutional 97 F.3d 171, 175 (6th Cir. 1996), and Wehr v. Ryan’s Family
violation. Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir. 1995)).
“Judgment as a matter of law is appropriate only when there
is a complete absence of fact to support the verdict, so that no
12 Pouillon v. City of Owosso, et al. No. 98-1967 No. 98-1967 Pouillon v. City of Owosso, et al. 5
was in fact content-neutral; or (b) (second jury question) he Pouillon also contends that the district court committed
was interfering with the public use of public property, for reversible error in allowing the jury to decide the case on a
example for such uses as access to the building. In either general verdict that allowed a qualified immunity defense,
case, he must be afforded an ample alternative channel of rather than putting special interrogatories to the jury on the
communication. What constitutes such channel is a matter of basis of which the court could then rule on the defendants’
law, dependent on circumstances; but (third jury question) the qualified immunity as a matter of law. A trial judge’s
actions in fact taken by intervening officers, here allegedly decision whether or not to submit a dispute to the jury through
simply ordering him to move to the nearby sidewalk, must be special interrogatories is within the trial court’s sound
found by the jury to fit the legal definition, given the jury by discretion. Fed. R. Civ. P. 49. Such discretion is reviewed by
the court, of allowing an ample alternative channel of this court for abuse, which “is defined as a definite and firm
communication. conviction that the trial court committed an error of
judgment.” See Monette v. AM-7-7 Baking Co., 929 F.2d
The verdict form also asked the jury to find separately on 276, 280 (6th Cir. 1991) (quoting Logan v. Dayton Hudson
“Plaintiff’s claim of violation of his federal constitutional Corp., 865 F.2d 789, 790 (6th Cir. 1989)). The trial court’s
right to be free from unlawful arrest.” But this, too, discretion will not be disturbed unless “it relies upon clearly
erroneously put before the jury a purely legal question. If the erroneous findings of fact or when it improperly applies the
officers’ order to Pouillon to move to the sidewalk was a law or uses an erroneous legal standard.” Fleischut v. Nixon
reasonable one, i.e. if it afforded him an ample alternative Detroit Diesel, Inc., 859 F.2d 26, 30 (6th Cir. 1988).
channel of communication, then plaintiff’s claim fails as a
matter of law. If not, it succeeds, again as a matter of law. This case involves related sets of questions for
Here there is nothing for a jury to decide. determination. First, there are three factual questions about
what happened at city hall on December 22, 1994. Was
Finally, the question of qualified immunity, which was Pouillon obstructing anyone? Could any reasonable officer
improperly submitted to the jury under general instructions, have thought he was or might be obstructing anyone? Why
is rather a question of law for determination by the judge. did the officers arrest Pouillon? These are appropriate
Questions of fact may be relevant to this determination, see questions for the jury as finders of fact. Second, there are
Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir. legal issues. What are the standards by which we judge
1989), but the ultimate question is one of law: if the finder of whether Pouillon’s actions are constitutionally protected?
fact determines that the officers undertook certain actions, Did the officers’ actions violate constitutional rights? These
could any reasonable police officer have believed that those are matters on which the judge must instruct the jury.
actions did not violate Pouillon’s constitutional rights? See
Dominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987) (citing In analyzing qualified immunity claims “[w]e conduct de
Anderson v. Creighton, 483 U.S. 635, 664 (1987). novo review because the issue whether qualified immunity is
applicable to an officer’s actions is a matter of law.”
We hold that the district court abused its discretion in Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996).
submitting to the jury questions of law as well as of fact. For However, “[w]here . . . the legal question of qualified
this reason we reverse the district court’s denial of Pouillon’s immunity turns upon which version of the facts one accepts,
motion for special interrogatories and remand this case for a the jury, not the judge, must determine liability.” Sova v. City
new trial on the three questions which, as we have just of Mount Pleasant, 142 F.3d 898, 903 (6th Cir. 1998). But in
indicated, should have been put to the jury. either case, “[t]he first step in a qualified immunity analysis
6 Pouillon v. City of Owosso, et al. No. 98-1967 No. 98-1967 Pouillon v. City of Owosso, et al. 11
is whether, based on the applicable law, a constitutional C
violation occurred.” Dickerson, 101 F.3d at 1157.
The third question is whether requiring Pouillon to move
A to the sidewalk was a reasonable time, place, and manner
restriction that, as the First Amendment requires, left open
The initial question before us, therefore, is whether ample alternative channels of communication. See Perry, 460
Pouillon had the right to protest on city hall’s steps in the first U.S. at 45. Under the circumstances presented here, this too
place. The Supreme Court’s analysis of governmental involved disputed claims as to Pouillon’s earlier experiences
authority to regulate speech, as given in Perry Educational of harassment on the streets, whether ordering him to return
Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 44-46 there would inhibit his protest, as he claimed, and whether,
(1983), divides public property that may be used for contrary to this claim, he in fact did resume regular picketing
expression by the public into several categories. The first on those sidewalks. Like the second question, whether
category, and the one most open for public expression, is that Pouillon’s actual protest impeded access, this third question
of the “traditional public forum,” the quintessential examples also should have gone to the jury.
of which are public streets and parks. Id. at 45. In such fora,
“[t]he State may . . . enforce regulations of the time, place, D
and manner of expression which are content-neutral, are
narrowly tailored to serve a significant government interest, The verdict form that was provided to the jury mixed the
and leave open ample alternative channels of preceding three questions together. It asked the jury to find
communication.” Ibid. The second category includes public for either the plaintiff or the defendant on “Plaintiff’s claim
property which the State has designated, perhaps only for a of violation of his federal constitutional right of free speech
given time, as open for use by the public for expressive and assembly.” The instructions amplifying this form said:
activity; during the time it is so open, the same standards “I instruct you that the government may impose and enforce
apply here as apply to traditional public fora. Id. at 45-46. reasonable time, place and manner restrictions on the exercise
Finally, some public property may be neither traditional nor of the First Amendment rights. Time, place and manner
designated public fora; in such venues the State may regulate restrictions may be imposed provided that they are justified
speech as it wishes, so long as the regulation is reasonable without reference to the content of the regulated speech, that
and not motivated by opposition to the views thus suppressed. they are narrowly tailored to serve a significant government
Id. at 46. interest, and that they leave open ample alternative channels
for communication.” Pouillon v. City of Owosso, et al., Civil
Sergeant Little’s testimony indicated that she implicitly Action No. 97-CV-70413-DT, Jury Trial Proceedings, at 370-
regarded the steps of city hall as belonging to the third 71 (E.D. Mich. April 17, 1998). But the jury should not have
category. That is, she drew a distinction between “City been free to decide, for example, that Pouillon had no right to
property” and “public property,” asserted that the City of be on the steps and could be ordered off at the whim of
Owosso might flatly prohibit any protests on or near the steps someone from City Hall. In particular, the jury must be
of city hall, and indicated that upon a complaint from city hall instructed that Pouillon had a right to demonstrate, and to be
she could lawfully order a protestor like Pouillon to move free from arrest for doing so, unless either (a) his protest was,
completely off the steps and adjoining plaza. She did not, as a matter of law, permissibly regulated by an appropriate
however, know of any ordinance prohibiting such protests. time, place, and manner restriction of general application, and
She views the two sets of steps and plaza separating them as (first jury question) the application of the restriction to him
10 Pouillon v. City of Owosso, et al. No. 98-1967 No. 98-1967 Pouillon v. City of Owosso, et al. 7
permitted in, or on the steps of, public buildings such as city nonpublic property that can be regulated at will by the
hall. See Perry, 460 U.S. at 46. But contrary to Sergeant property owner, i.e. the City of Owosso (presumably
Little’s belief, Pouillon’s protest on the steps of city hall assuming evenhandedness and absence of animus towards a
could not be prohibited altogether. particular expression).
B The issue before us is whether city hall’s steps are, instead,
a public forum. Insofar as this issue is a matter of law (there
The second question is then whether Pouillon’s actual might also be a factual question, e.g., whether a forum has
protest impermissibly interfered with public use of the steps. been transformed into a public one by historical practice), a
Both Sergeant Little and Officer Blanchett testified that they long line of cases concerning public fora fails to provide a
felt Pouillon was impeding access to the building, and definitive answer. The Supreme Court has long accorded
ultimately both sides agreed that this was one of the main recognition to public streets and parks as prime areas for
issues upon which the legality of the officers’ order turned. public protest, see, e.g., Hague v. C.I.O., 307 U.S. 496, 515-
As the Supreme Court has recognized, protest in even the 16 (1939). The Court has also held that a state fairgrounds is
most traditionally open public fora, such as streets and parks, a “limited public forum” requiring comparable scrutiny of the
may be regulated to protect those areas’ openness: “A group proposed regulation of speech there. See Heffron v.
of demonstrators could not insist upon the right to cordon off International Soc. for Krishna Consciousness, 452 U.S. 651,
a public street, or entrance to a public or private building, and 655 (1981). But when it comes to public buildings, the Court
allow no one to pass who did not agree to listen to their has been more reticent. In Greer v. Spock, 424 U.S. 828, 836
exhortations.” Cox, 379 U.S. at 555. Given Pouillon’s (1976), the Court took pains to point out that the fact that a
general right to protest on city hall’s steps, the second government building is open to the public during specified
question to be answered in determining “whether a hours, and that the public may freely enter and leave its
constitutional violation occurred” in this instance is whether grounds at all times, does not thereby transform that building
Pouillon’s protest, in the manner it was actually being or those grounds into a public forum. The Court cited this
conducted, was impeding access to city hall such that it was holding when, in United States v. Grace, 461 U.S. 175, 178
reasonable to require him to move. This is clearly a factual (1983), it invalidated a District of Columbia ordinance
question, and if in dispute it is for the jury to resolve it. restricting protests in and around the Supreme Court building,
but only insofar as the statute applied to the sidewalks
In this case the facts are indeed in dispute. A photograph surrounding the building. These, the Court held, were a
of city hall’s steps, with a sedate Pouillon standing on the traditional public forum which could not be restricted in this
plaza, at the foot of the upper set of steps and far to the edge all-encompassing way. But Grace left intact that portion of
of the landing, was admitted into evidence as Plaintiff’s the statute which proscribed protest on, for example, the
Exhibit 2. But on direct examination of its witnesses, the Supreme Court steps.
defense elicited testimony to the effect that this innocuous
scene does not represent the reality of December 22nd, and is This drew a dissent from Justice Marshall, who found the
misleading as to whether Pouillon was potentially impeding statute unconstitutional on its face and in its entirety, and
access to the building. Here we have a classic jury issue. whose citations imply that government premises are
quintessential public fora afforded the strictest scrutiny for
First Amendment purposes. His citation most relevant to the
instant set of facts, Edwards v. South Carolina, 372 U.S. 232
8 Pouillon v. City of Owosso, et al. No. 98-1967 No. 98-1967 Pouillon v. City of Owosso, et al. 9
(1963), is of a decision that had invalidated the conviction of Courthouses and the area surrounding them have been held
common-law breach of the peace of protestors on the to be a special case. Grace, discussed supra at 7-8, did not
statehouse grounds in Columbia; it did not, however, do so overturn the decision in Cox v. Louisiana, 379 U.S. 559
through public forum analysis. Rather, the convictions were (1965), upholding a statute banning any demonstrations
held to be unconstitutional because the arrests were based outside a courthouse that are intended to affect the outcome
only on the protestors’ expression of unpopular views; the of a proceeding within. But that limited situation is a far cry
fact that the arrest had been on the statehouse grounds was from the city hall steps of Owosso. The latter is a venue that
coincidental, although the Court noted that protesting there seems in the highest degree linked, traditionally, with the
involved “an exercise of . . . basic constitutional rights in their expression of opinion, comparable not to a courthouse but to
most pristine and classic form.” Id. at 235. a capitol building as a public forum. Numerous cases have
held that the United States Capitol, as well as state capitols,
It would seem a considerable stretch to make Edwards are proper fora for demonstrations. See, e.g., Pinette v.
stand for the flat proposition “that demonstrations on or near Capitol Square Review and Advisory Bd., 30 F.3d 675 (6th
legislative grounds fall within the protection of the First Cir. 1994) (holding public square across from Ohio capitol
Amendment,” as the District of Columbia District Court did building a public forum); Shiel v. United States, 515 A.2d 405
in Jeannette Rankin Brigade v. Chief of Capitol Police, 342 (D.C. Ct. App. 1986) (holding the Capitol Rotunda might be
F. Supp. 575, 584 (D.D.C.), aff’d. 409 U.S. 972 (1972). In closed early prior to President’s address there, but must be
that case, a three-judge court heard a challenge seeking available to protestors during normal hours when open), cert.
declaratory and injunctive relief from a federal statute denied, 108 S. Ct. 1477 (1988); Gaylor v. Thompson, 939 F.
prohibiting demonstrations on the grounds of the United Supp. 1363 (W.D. Wis. 1996) (Wisconsin state capitol
States Capitol. The court held that a blanket prohibition of all rotunda a public forum, based on its traditional open use);
assemblies and demonstrations within the traditionally ACT-UP v. Walp, 755 F. Supp. 1281 (M.D.Penn. 1991)
accessible grounds of the national legislature, merely to (similarly, Pennsylvania capitol rotunda); Chabad-Lubavitch
preserve “the ‘serenity’ of a ‘park-like’ setting,” was of Georgia v. Harris, 752 F. Supp. 1063 (N.D.Ga. 1990)
illegitimate. Id. at 585. Crucial to its reasoning was the fact (plaza in front of Georgia state capitol a public forum by
that the Capitol grounds were traditionally an area of open designation).
public access, in contrast to types of public property which
have been held not unrestrictedly open to the public and not, In most of these cases, the issue is decided by reference to
therefore, public fora for purposes of open expression: this the history of the building’s use; the record before us indicates
includes such properties as jails (citing Adderly v.Florida, 385 that no one raised the question of how Owosso’s city hall
U.S. 39 (1966); and libraries, schools, and hospitals (citing steps had been used in the past, whether made available to
Gregory v. Chicago, 394 U.S. 111 (1969) (Black, J., demonstrations or not. But in the absence of a showing that
concurring at 118)). Id. at 583. But “streets, sidewalks, the steps of this public building have been traditionally
parks, and other similar public places are so historically restricted, we hold that the steps of Owosso’s city hall are a
associated with the exercise of First Amendment rights that traditional public forum, and that expression there cannot be
access to them for the purpose of exercising such rights banned absolutely. Regulation of speech in that setting is, of
cannot constitutionally be denied broadly and absolutely course, permissible within reason, just as regulation of speech
. . . .” Ibid. (quoting Amalgamated Food Employees Union on sidewalks and parks is, but such regulations will be
Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315 subjected to the same strict scrutiny. Thus, “reasonable time,
(1967)) (emphasis added). place, and manner regulations,” if content-neutral, are