Clary v. City of Cape Girardeau
165 F. Supp. 3d 808
E.D. Mo.2016Background
- Clary alleges Peters violated his First Amendment rights by citing and arresting him during a profanity-laced encounter after a traffic stop for an illegal right turn.
- Peters arrested Clary for violating Ordinance § 17-157(a)(9) and charged him with a violation the city later acquitted; the stop occurred on or near a private parking lot per dispute.
- The City has an unwritten policy granting officers discretion to determine if speech disturbs business or residents and whether to arrest or cite.
- Peters did not interview or identify witnesses/disturbed by the speech; he relied on bystander presence and his own “common sense” to infer disturbance.
- Clary seeks a declaration that the Ordinance is unconstitutional on its face and as applied, plus injunctive relief; the City and Peters move for summary judgment on various claims.
- The court ultimately finds the Ordinance void for vagueness as applied and grants/in Part relief accordingly, with remaining issues to be tried.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 17-157(a)(9) void for vagueness as applied? | Clary argues the terms are undefined and permit arbitrary enforcement. | City/Peters contend terms are understandable and regulation is a valid time/place/manner restriction. | Yes; ordinance void for vagueness. |
| Did Peters violate the First Amendment and is he entitled to qualified immunity? | Retaliation for protected speech; arrest pronged to deter speech. | Arrest based on probable cause to enforce the Ordinance; qualified immunity if reasonable. | Genuine factual dispute exists; not entitled to qualified immunity; trial on retaliation claim. |
| Can the City be liable under Monell for promulgating the unconstitutional Ordinance? | City policy caused deprivation of rights. | Constitutional defect not due to training/supervision; city not liable for failure to train. | City liable under Monell for promulgating unconstitutional Ordinance; damages/trial to follow. |
| Does the City’s failure-to-train/supervise claim fail as a matter of law? | Failure to train/supervise officers on First Amendment rights. | No deliberate indifference; Ordinance itself is the issue, not training. | Summary judgment for City on Count II (failure to train/supervise) granted. |
| Should a permanent injunction bar enforcement of the Ordinance? | Ordinance unconstitutional and ongoing enforcement harms rights. | Regulation could be revised to comport with the Constitution; ongoing enforcement appropriate. | Permanent injunction issued barring enforcement or threatened enforcement of the Ordinance. |
Key Cases Cited
- Fox Television Stations, Inc. v. United States, 132 S. Ct. 2307 (U.S. 2012) (due process and vagueness standards for regulations affecting speech)
- Baribeau v. City of Minneapolis, 596 F.3d 465 (8th Cir. 2010) (First Amendment retaliation and qualified immunity framework)
- Naucke v. City of Park Hills, 284 F.3d 923 (8th Cir. 2002) ( First Amendment retaliation; lack of chill factor for mere citation)
- Stevens v. United States, 559 U.S. 460 (U.S. 2010) (plain-text interpretation and noscitur a sociis کمک)
- Coates v. City of Cincinnati, 402 U.S. 611 (U.S. 1971) (void for vagueness due to subjective annoyance standard)
- Kuehl v. Burtis, 173 F.3d 646 (8th Cir. 1999) (duty to investigate before arrest; arguable probable cause)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time/place/manner regulation requiring narrow tailoring)