Lewis v. McCracken, 782 F. Supp. 2d 702

Lewis, a pastor of Old Paths Baptist Church, led a June 5, 2007 protest at the sidewalk in front of French Lick Resort Casino.
The sidewalk area was owned by the Resort's Holding Company and lay near State Road 56, with a public right-of-way marker indicating access to a crosswalk and state roads.
Bennett (Resort Director of Security) and McCracken (French Lick Police Chief) told Lewis to leave the sidewalk or face arrest for trespass; they suggested he protest across State Road 56.
Lewis refused to leave the traditional public forum, maintained his First Amendment rights, and subsequently relocated the demonstration across the street for about 30 minutes.
Lewis filed a 42 U.S.C. § 1983 claim against McCracken and the private defendants, alleging violation of First Amendment rights and conspiracy under § 1985; defendants moved for summary judgment and Lewis cross-moved for partial summary judgment.
The court granted in part and denied in part the parties’ motions, finding the sidewalk to be a traditional public forum, rejecting qualified immunity for McCracken, determining liability for the private defendants in certain respects, and dismissing the § 1985 claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sidewalk was a traditional public forum.	Lewis argues the sidewalk was a traditional public forum.	McCracken/Bennett argued the sidewalk was privately owned at the time.	The court held the sidewalk qualified as a traditional public forum.
Whether McCracken violated the First Amendment and whether he is entitled to qualified immunity.	Lewis contends McCracken violated free speech rights; immunity should not apply.	McCracken argues he acted within his authority and that the right was not clearly established.	McCracken was not shielded by qualified immunity; the § 1983 claim against him survived.
Whether private defendants can be liable under § 1983 for acting in concert with a state actor.	Lewis asserts Bennett acted in concert with McCracken to deprive rights.	Defendants claim no concerted action establishing § 1983 liability.	Bennett could be liable for conduct in concert; summary judgment denied on this basis.
Whether § 1985 conspiracy claim survives given lack of religious animus.	Lewis alleges a religion-based conspiracy to deny rights.	Defendants contend no religious animus was shown.	§ 1985 claim dismissed for lack of religious animus.

Frisby v. Schultz, 487 U.S. 474 (1988) (tradition of public sidewalks as forums; time/place/manner considerations)
Grace, United States v., 461 U.S. 171 (1983) (speech protections on sidewalks adjacent to public streets)
Heffron v. Intl. Soc. for Krishna Consciousness, 452 U.S. 640 (1981) (protected religious proselytizing and demonstrations in public forums)
Grayned v. City of Rockford, 408 U.S. 104 (1972) (focus on public forum status and protected expressive activity)
Snyder v. Phelps, 131 S. Ct. 1207 (2011) (matters of public concern; First Amendment protection)
Venetian Casino Resort v. Local Joint Exec. Bd., 257 F.3d 937 (10th Cir. 2001) (private sidewalk bordering public road can be a public forum)
United Church of Christ v. Gateway EDC, 383 F.3d 449 (6th Cir. 2004) (private sidewalk along urban thoroughfare can be traditional public forum)
Ovadal v. City of Madison, 416 F.3d 531 (7th Cir. 2005) (public sidewalks are traditional public forums; public trust in sidewalks)
Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000) (animus and § 1983/1985 considerations; good faith analysis nuances)
Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004) (threat of arrest can chill First Amendment rights)