*1 738 оf the U.S. actions for the Tucker Act where immunity sovereign States’
United district Accordingly, Constitution, or Marshals.4 statute law involved— Taylors’ dismissing the Order right court’s a substantive regulation —creates affirmed. Complaint the Unit- Amended damages against money recover Testan, 424 v. States United ed States. See 948, 114 47 L.Ed.2d 398, 392, 96 recover right to
(1976). substantive The Tuck- in the not exist does damages
money must rather, claimant itself; “the Act
er of substantive the source
demonstrate interpret- fairly be ‘can upon relies
law he by Mehl, the Fed- Da mandating compensation VENEKLASE, Paul B. ed as Chris sus- damages Emmel, for the Larson, Nancy Jessica eral Government rold Mitchell, v. States Plaintiffs-Appellees, United Uchtman, tained.’” See 2961, 77 216-17, 103 S.Ct. v. Therefore, (1983). the dis- L.Ed.2d 580 FARGO, Defendant- OF CITY inquiry on its focused properly trict Appellant. fairly can Fourth Amendment whether compensation mandating interpreted be No. 98-2147. injury the the United States Appeals, Court United States Taylors sustained. Circuit. Eighth correctly deter District Court the rеlevant 2000. mined, review Oct. Submitted: from violation of involving allegations cases Filed: Feb. 2001. violations rights, that Amendment Fourth sei “unreasonable searches Amendment of the Fourth clause zures” compen requiring be read as fairly
cannot Order See damages sustained.
sation States, 105 v. Brown United (citing
at 6 (Fed.Cir.1997); Crocker
F.3d States, 191, 194-95 37 Fed.Cl.
United States, 17
(1997); Cl.Ct. v. United Lark States, (1989); Noel United (1989); 166, 169 v. United LaChance
Cl.Ct. (1988);
States, 15 Cl.Ct. States, 225, 226 1 Cl.Ct.
Royce v. United
(1982)). substantive there is no Where damages the federal from
right to recover 1346(a)(2) act as § does not
government, immunity of the sovereign
waiver Taylors cannot obtain
United States. under the the United States
relief from ties under Bivens Named v. Six Unknown Taylors could have appears that It Agents, 403 U.S. against claim brought "constitutional tort” capaci- L.Ed.2d deputy in their individual marshals *3 Milford, OH, Condit, argued,
Thomas W. Plaintiffs-Appellees. for ND, Miller, De- Fargo, argued, Mike fendant-Appellant. WOLLMAN, Judge, Chief
Before McMILLIAN, BRIGHT, RICHARD S. BEAM, LOKEN, ARNOLD, BOWMAN, HANSEN, SHEPPARD MORRIS MURPHY, BYE, ARNOLD, Circuit Judges. CURIAM.
PER ten-year almost lengthy, has a case This plaintiffs- when history beginning litigation Fargo, North City appellees sued assert- police officers and several Dakota in violation arrested they were ing that their rights constitutional alleged viola- or one persons of, more inside Fargo’s tion of residential picketing front, ordi- any premises about for the nance. After litigation extensive before a purpose of persuading an occupant of magistrate judge in the district court and premises such or to protest some ac- court, before panels of this tion, plaintiffs-appel- attitude or belief. lees obtained a judgment for damages 10-1202. Picketing of dwellings pro- against only the City of Fargo in the sum hibited. —No person shall engage $2431, plus attorney’s fees excess of picketing the dwelling any individu- $52,000. The appealed from the judg- al of Fargo.
ment, and this matter is now before the court en banc. We reverse and remand *4 After the picketers refused to leave entry for judgment of of dismissal in favor scene, the Fargo thе police arrested the of the City. picketers and charged them with violat- ing the ordinance: Fargo The police I. BACKGROUND transported the plaintiffs to the Cáss background The history and of this liti- County Jail and held overnight. them gation may be panel found the opinion The Fargo police detained plaintiff reversing the judgment a rehearing after Uchtman, a minor at the time of her by panel. Veneklase v. City Fargo, of arrest, for only a few hours and re- (8th Cir.1999) (“Veneklase F.3d leased her to the of custody parents. her II”), vacated order granting reh’g en Fargo filed charges plaintiffs against relevant, banc. As opinion stated: Veneklase, Mehl, Larson and Emmel This extensive, case has almost violating the residential picketing ordi- eight-year history. In Fargo, North nance. 18, On February 1992, Cass Dakota, 10, on October at approxi- County Judge Frank L. Racek dis- mately p.m., 10:00 picketed activists missed the charges against plaintiffs, home of an abortion clinic administrator deciding that the ordinance was consti- and one or two houses on either side of tutional on its face but unconstitutional her home. The Fargo Depart- Police applied as on October ment received a complaint about the res- 10,1991. idential picketing. Fargo police officers Plaintiffs subsequently filed ac- this advised the picketers that their conduct tion, pursuant to 42 § U.S.C. violated Fargo’s then applicable residen- against Fargo, Todd, Officer David Of- tial picketing ordinance. ficer Jim Schalesky, Lieutenant Jon Fargo’s ordinance, enacted in Holman, and Sergeant Wayne Jorgen- as reads follows: seeking son redress for their arrest 10-1201. Definitions.—For pur- incarceration. On February poses article, of this certain words and 1995, a Magistrate Judge denied the in- phrases used herein are defined as dividual police officers’ claim of quali- follows: fied The immunity. district court con- A. “Dwelling” any means struc- cluded that the officers’ conduct was ture or building, or dwelling unit with- “objectively not light reasonable” of in building, which is place used as a clearly established law. The district of residence. court also Fargo concluded that failed
B. “Picketing” practice means to train and, its officers properly as a of standing, marching, result, or patrolling by was “deliberately indifferent” to plaintiffs’ violated in question nance liable picketers rights re- as a content-based rights constitutional of law. Ven a matter damages speech. free of striction F.Supp. Fargo, 904 eklasе addition, (D.N.D.1995). 1038, 1058 ruling, rejected panel that the or concluded the district Fargo ordinance the 1985 determining that the Constitution violate not did dinance content neu- test of question passed con the ordinance because its face on facially not unconstitution- trality and was regula content-neutral valid stituted a the United ruling on al, relying for and the 1044-48. Id. at tion. Frisby v. case Supreme Court States this court appealed officers Schultz, re interlocutory We order. from reject- also panel L.Ed.2d 420 immunity qualified denial versed challenges to the ed other constitutional interlocutory appeal held that arrests. liability was municipal on issue for a re- Plaintiffs-appellees petitioned the court. Venek properly before banc, asserting error hearing en F.3d Fargo, 78 lase v. neutrality of content dеtermination panel’s I”). Cir.1996) (“Veneklase (8th *5 an earlier by panel the of disregard and dis to the the case remanded We then Fargo’s to relating decision Eighth Circuit proceedings further for trict court picketing ordi- residential amended 1993 Fargo. against similar, cru- maintained nance which 10, 1997, district court the April On picketing defining residential language cial as a liable Fargo was determined earlier case That neutral. was not content granted sum- again of law matter Furness, Kirkeby plaintiffs is by cited plaintiffs. the in favor mary judgment of II”). Cir.1996) (8th (“Kirkeby F.3d 655 the court concluded district The a con- was unconstitutional did not raise rehearing for ordinance petition The speech. on free restriction the tent-based en banc consideration as a basis for is- the Fargo court then referred of liability of the district the issue of trial. jury for a damages to a of the of sue enforcement for the unconstitutional 1997, trial, August However, resulted held in exists ground That ordinance. in favor of Fargo damages against as an alternate briefs initial plaintiffs’ .... plaintiffs by five the court. ground affirmance omitted). (footnotes Id. at 1113-14 Feb- banc on rehearing en granted We case twice. considered panel 2000, argument 16, heard oral ruary filed it reversed an Initially, 7, 2000, 11, September On 2000. April on 30,1999. plaintiffs’ petition theOn August in order the submission the court vacated its initial panel vacated rehearing, Bye partici- to Kermit E. Judge permit did rehearing. It so granted opinion and April on joined the court Judge Bye pate. opportunity an give submis- 22, 2000, initial en banc after determination panel’s further address Circuit’s to the Eighth Pursuant sion. passed Fargo ordinance that the 1985 judge active procedures, established Veneklase neutrality. See test of content submis- after an en banc joining 1111, II, n*. 200 F.3d en banc pending may participate sion 7, September order dated By an cases. damages by noted, the award As banc prior en vacated the court determination on court rested district resubmis- April directed submission Fargo ordi- of the that the enforcement sion to the en bane court without further against City, fees and costs will there- argument fore be reversed. oral and on the basis of the original supplemental briefs. The or- requested II. DISCUSSION
der also
additional simultaneous
parties
following ques-
briefs
on the
The essential facts were stated in Vem-
tions:
quote:
ekiase I which we
1. Does the deèision in Hill v. Colo-
evening
On the
of October
rado,
530 U.S.
120 S.Ct.
plaintiffs engaged in a demonstration
(2000),
any bearing
L.Ed.2d 597
have
on
outside the administrator's
residence.
question
invalidity,
facial or
They
forth,
single
walked back and
as-applied,
of the 1985
file, on the sidewalk in front of the ad-
at issue in this case.
home,
ministratbr's
but their route in-
holding
Frisby
2. Whether the
approximately
cluded
two to three hous-
Schultz,
es on either side of the administrator's
(1988),
“Ordinances
of a health care
regulated
in
areas
lawful
par
of
promotion
regarding
tive choice
eight
within
knowingly approach
facility
Madsen v.
interests.”
societal
ticular
of
purpose
“for the
person
of
feet
another
Inc.,
Ctr.,
Health
Women’s
to, displaying
a
or handbill
passing
leaflet
129 L.Ed.2d
764, 114 S.Ct.
to,
protest,
in oral
sign
engaging
or
a
(1994).
us restricts
before
The ordinance
education,
counseling with such other
or
streets, a
in residential
speech
a
of
manner
” Hill,
at 2484.
....
120 S.Ct.
person
Consequently,
forum.
public
traditional
well-settled
subject to the
is
the ordinance
reaffirmed
Supreme
Court
the restric
time,
manner test:
ac
place,
expressive
of
regulation
“government
viewpoint
neu
justified
if
is
must be content
neutral’
it
tivity
tion
is ‘content
channels
regu
of
tral,
ample alternative
the content
open
leave
without
reference
communication,
narrowly tai
in
and be
2491. The statute
speech.” Id. at
of
lated
content-neutrality test
governmen
passed
further a substantial
lorеd to
Hill
Perry
Ward,
Educ. Ass’n v.
Perry
U.S.
spelled
tal interest.
out
Ass’n,
2746, 105
661:
U.S.
L.Ed.2d
Local Educators’
See
State
apply
“restrictions
ing that
statute’s
Neutrality
Content
A.
demonstrators, regardless
equally to all
we address
background,
With
statutory language
viewpoint,
and the
*7
issue,
neutrality. The
content
the first
the
to the content of
makes
reference
no
agree
the con
the
plaintiffs and
Third,
in
the
speech.”
State’s interests
the
is deter
stitutionality of
pro-
and
privacy,
access and
protecting
in
decisions
Supreme Court’s
mined
guidelines,
clear
viding
with
Colorado,
U.S.
120 S.Ct.
530
Hill
content of the dem-
are unrelated to the
(2000)
Frisby v.
and
Second, the ordinance does not speak to
of picketing
in Fargo’s
contained
1993 resi
types
which
of picketing
prohibited.
are
dential picketing ordinance
Rather,
to be content-
it bans all picketing.
It therefore
based. The ordinance defined picketing
cannot be
said that
the ordinance was
activity engaged in “for the purpose
adopted
any
because of
disagreement with
persuading the public or an
occupant of
message conveyed by
picketers.
such premises or
protest
action,
to
preamble
ordinance,
to
some
evincing
II,
attitude or belief.” Kirkeby
its purpose,
references
at
concerns about
659. Because it
protection
impossible
“the
was
preservation
to tell
person
whether a
engaged
home.”
at 1.
was
J.A.
It
picketing
states that the “pub-
without analyzing
lic health
the message,
require
and welfare”
that “citi-
the court
reasoned that
zens
limitation
enjoy
feeling
justi
was not
well-being
fied without
tranquillity
homes”;
while
their
reference to
“the
content. Hill
practiсe
rejected
analysis.
before ... dwellings
causes emotional disturbance and distress
According to
Hill,
Court’s
to the occupants.” Id. There is no indica-
the necessity of looking at the content of a
anywhere
tion
in the record that the ordi-
speaker’s message to determine whether it
nance
adopted
was
any
because of
dis-
protest,
was
education, or counseling is no
agreement with certain messages.
different from determining
partic-
whether
Third,
every
there is
indication that
ular conduct constitutes picketing. See
attempted
protect
its citizens Hill,
Turning again
statute,
to the Colorado
inquiry might
necessary
be
to determine
in addition to finding that
it passed the
a person
whether
picketing,
is
the ordi-
test,
Ward
the
rejected
Court specifically
a
nance therefore is content-based. As Hill
that Ca-
argument
appellants’
reject'the
to de
“cursory examination”
reasons, the
the
makes
picketing
of
make
definition
sady’s
not
does
picketing
is
if
termine
one
Fur
content-based.
at 2492.
Lincoln ordinance
.
law content-based.
the
in Thorburn
ther,
this
of
panel
a
Thorburn,
at 1118.
F.3d
(8th Cir.2000), ruled
Austin,
231 F.3d
establishing
Frisby as
relies on
Hill also
(8th Cir.1996),
II,
F.3d 655
Kirkeby
that
stat-
the
neutrality of
Colorado
content
the
that
establish
upon to
relied
not be
could
that a
ute,
“the contеntion
emphasizing
“for
the
ordinance
in
language
the
simply because
based’
‘viewpoint
statute is
was content
persuading”
of
purpose
con-
by the
was motivated
enactment
Thor-
content neutral.
based,
than
rather
a
side of
on one
partisans
of the
duct
similar ordi
a somewhat
bum construed
Hill, support.”
debate is without
pick
focused residential
prohibiting
nance
2494.
at
Lincoln, Nebraska:
eting in
a con-
sum,
Frisby foreclose
and
Hill
Kirkeby
rely on
appellants
The
Cir.1996),
un-
is
(8th
Fargo’s 1985 ordinance
clusion that
Furness,
for lack of content
picketing
on its face
definition
constitutional
where we held
Frisby
ordi-
picketing
upheld
laws
neutrality.
a residential
contained
The ordi-
in Thor-
Hill,
this court
recently by
content-based.
nance to
be
activity en-
rights,
picketing
bum,
speech
free
respecting
nance defined
whilе
persuading
purpose
in “for
in limited circumstances
gaged
recognize that
prem-
occupant of such
or an
public
is entitled to
speech
target of
specific
action, attitude
some
protest
or to
ises
forced to lis-
being
from
protection
some
it was
Because
Id. at 659.
or belief.”
clearly falls into
ten. This ordinance
is
person
to tell whether
impossible
neutrality
issue of content
category. This
analyzing
without
engaged
picketing
in favor
only issue decided
was the
limitation
we held that
his message,
plaintiffs.
reference
justified
was not
without
con-
ordinance is
concluded the
Having
this sort
rejected
Hill
id.
content. See
tent-neutral,
whether
we must determine
analysis.
significant
to serve a
narrowly tailored
it is
According to the Court’s
it pre-
and whether
interest
government
con-
at the
Hill,
neсessity
looking
of com-
channels
ample alternative
serves
to deter-
message
speaker’s
tent of
prohib-
munication. Because
education,
protest,
it was
mine whether
directed
speech
ited
the ordinance
from deter-
no different
counseling is
at
primarily
general public
to the
but
con-
conduct
particular
mining whether
unwilling
presumptively
are
those who
See
picketing.
stitutes
it,
City has a substantial
receive
Picketing, by defini-
S.Ct. at
na-
it. The
banning
justifiable interest
random,
“social,
or other
tion, excludes
interest make
of this
scope
ture and
communications,”
but
everyday
also
narrowly tailored.
ban
suggested
“never
Court has
alternative channels
ample
open
leaves
might
cursory
kind of
examination
Thus,
de-
we
reverse
communication.
conversa-
to exclude casual
required
be
the district court.
termination of
regulation of
coverage of a
tion from the
*9
problematic.”
would be
picketing
and Overbreadth
Vagueness
B.
at-
Engaging
demonstrations
in this case also
prior panel opinion
are inher-
opinions
influence
tempting to
assertions
rejected other
we
addressed and
that
Hill
picketing.
requires
ent
unconstitutionality,
748 liability prem- “municipal that concluded I, of the arrest “that
Veneklase not flow theory does a ratification on objectively was ised officers defendant by the Id. rules legal City’s the the admissions.” of from light reasonable occurred.” the action at the time existence train police deficient Regarding ruling I, 1269.1 This F.3d at 78 Veneklase alleged from the liability can flow ing, no law the case. the of became officers. Fargo poliсe train the failure to arguendo, that Further, assuming, laid to rest adequately been has This issue made, unconstitutionally were arrests the in this case: court’s in the district the necessary to show that be it would ruling Eighth of the Circuit’s light (a) directly custom a or policy had City the regarding that law I the ] contravening [Veneklase federal authorizing conduct (b) Amendment law; the First or of parameters and state constitutions a City against Can abortion protest to training. right See police deficient of 378, 385, Harris, clearly estab- was not area ton residential (1989) arrest, (determining plaintiffs’ time of at the L.Ed.2d lished only may police be held liable train municipality [sic] that failure its City’s result which moving violations for constitutional as the could not serve officers custom). Howev municipal policy plaintiffs’ from of the violation force behind liability any er, rejected the district court pa- rights. Since Amendment First City ground. on this against Amendment plaintiffs’ First rameters of any training in question, were still rights custom, no policy or evidence Regarding neces- would City’s police of officers City followed in the record exists in doubt. parameters those sarily leave arrest police its officers having of a custom training by the of Consequently, the lack of the not in violation who were picketers force behind moving City cannot be judge determined magistrate law. constitutional plaintiffs’ of the violation policy or have a City did not rights. unconstitutionally applying custom of Veneklase, F.Supp. at See ordinance. Order, Dist. Ct. Mem. J.A. at judge did magistrate & n. 16. The 10,1997. April had ad- chief that the observe Moreover, arresting po where arresting discovery that during mitted liability to are absolved lice officers existing pursuant acted police officers arrestees, is not liable. City ordinarily specifi- training, none which policies issue two cases. addressed this We have the enforcement cally addressed Crocker, Mo., 30 F.3d In Abbott implications or the antipicketing (8th Cir.1994), judg that a we held However, n. 16. since Frisby. at not matter of law could be a ment as of an equivalent are not “admissions municipality where the against a decision, of a sustained in the form affirmative cast arresting officer had judgment against statement, ...” the district policy holding defined find we do not I commented on opinion Veneklase 1. The pick residential parameters of pro 'focused' Frisby stating, outer “Whether the contours of plaintiffs did not have eting. We Frisby hold hold may, with the testers consistent right on October targeted clearly established ing, аdjacent to the include houses route, encompassing the Bovard picket in route issue dwelling is an on the two to three homes on and the today, yet is a residence it we need resolve which I, it.” Veneklase side of lingers Fris either significant question after which omitted). (footnote Thus, Frisby, reading 1268-69 by. upon a careful *11 been reversed on a fact basis. The court theory, unless [an officer] is found liable stated: on the claim”). underlying substantive Id. at 1367. City
The
cannot be
hable
connec
tion with either the excessive force claim
In the
absence
a record establishing
claim,
or the
arrest,
invalid
an illegal
arrest
whether on a
in the circumstances as
failure
theory
to train
here where
or a
municipal
arresting officers have
fault,
been
custom or
absolved of
policy theory,
unless Officer
plaintiffs-аppel-
lees
present
cannot
Stone
on
found hable
tenable basis for
underlying
affirmance of
judgment
against
substantive
claim. See Reynolds City
City on alternative grounds
Rock,
the ar-
(8th
Little
893 F.2d
resting officers unconstitutionally applied
.1990),
Cir
quoting City
Angeles
Los
question.
ordinance in
Heller,
796, 799, 106
grant of against City JAML was also III.
erroneous.
CONCLUSION
judgment
against the City
at 998.
for damages and assessment of attorney’s
More recently, we reaffirmed Abbott in fees is REVERSED. No costs are award-
Larson,
(8th
Olinger v.
ter, the district court entered newa order ever, that judgment of the District granting a summary judgment of dismissal Court should be reversed. There are at affirmed, ahon claims. stating: We least closely two related alternative grounds for affirmance: that the ordinance In light of rulings our that Detective overbroad, was unconstitutionally and that Larson and Chief Satterlee did not vio it was not narrowly tailored ato substan- Olinger’s late fourth amendment rights, tial state end. I Because believe that both Olinger’s against claims based of these grounds merit, have I respectfully on its alleged inadequate training and dissent. supervision of Detective Larson and Satterlee, Chief must also fail. See Ab I. Crocker, bott v. City (8th Cir.1994) (“The City cannot be lia question of overbreadth turns on ... ble whether on a failure to train whether the Fargo ordinance exceeds its theory or a municipal or policy custom constitutional limits in a way “may towards their may “direct” court to re before the others cause *12 The distinc- sense. physical in a occupant protected constitutionally frain from at The ordinance a difference. makes v. Okla tion Broadrick or speech expression,” of dwell- prohibits “picketing here 37 issue 93 S.Ct. homa, 413 U.S. as is defined “picketing” where ings,” (1973), its over and whether 830 L.Ed.2d reаl, but substan ... only marching or reaching standing, is “not of practice the plain to well, [its] in relation judged inside persons as more tial one or patrolling at 615. Id. sweep.” for ly legitimate front, any premises of, about in or occupant purpose persuading of the overbreadth plaintiffs’ the rejecting In protest to some or premises of such of on the statement claim, relies the Court attitude, action, or belief. Austin, v. in panel Thorburn the out, (8th Cir.2000), fo this definition “[pjrohibiting that plaintiffs point theAs conduct— n legiti plainly picketing protected to is both cused residential extends statement, by it “focused” physically not categorical marching is This that mate.” plaintiffs The the mean- very little. within self, particular residence establishes on a speech— a constitu they Frisby protected that have claiming ing of not arе —and intended, only not in residen engage “focused are right messages that tional couldn’t, house, for the because but They occupant picketing.” tial contrary. rejects both of Court large. establishes at The Frisby public case clearly address- is arguments do claim without these What were they which under ing ordinance either one. conduct range encompassed arrested problem: to the second brings me This just than substantially more that includes lose the picketers Frisby say does not residential “targeted” or the “focused” whenever Amendment of the First shelter most Frisby. in addressed picketing occu specific at activity is “directed their the Court’s overbreadth part of important speech as or whether building,” of a pant therefore, that “an is its analysis, assertion narrower. holding is conduct. Its activity thаt is in an engaged individual faced with Supreme Court was Frisby, the dwell occupant of a specific at a directed two lower federal an ordinance sweep of legitimate ing falls within restrictive illegally to be courts had held Ante, amounts at 747. This ordinance.” In or constitutionally protected speech. is “focused” holding picketing ato difficulties,” “constitutional der to avoid whenever Frisby purposes, “targeted,” for 2495, the Court at 487 U.S. of a occupant a specific it at is “directed prohibiting ordinance as construed building.” taking place solely picketing “only focused particular residence.” in front of a problems with significant There are two mine). construed, the ordi So First, (emphasis Be- ambiguous. holding. it is this 488, 108 at See id. upheld. nance was of conduct “a mixture picketing cause its narrow (“largely bеcause communication,” S.Ct. 2495 NLRB v. Retail to the challenge scope, the facial Employees, Store fail”). Although (1980) (Stevens, must L.Ed.2d S.Ct. forum, id. public in a Frisby took concurring place
J.,
part
concurring
forced
481, 108
message was
result),
specific
at a
may
it
be “directed
privacy
in the
recipient
unwilling
on an
picket-
different
ways.
occupant”
that, in that
held
the home. The Court
to be the
occupant
may
ers
intend
by the ordi-
activity prohibited
they
respect,
message, or
of their
primary recipient
nance resembled an offensive radio broad
up
walked
and down a residential street
cast, offensive matter sent
through the
blocks,
extending
city
several
in front
mails,
speech
or an offensive
from a
blared
houses,
of thirty
in order
persuade
truck,
sound
closely
more
than it did such only a specifiс resident of the street but
protected
marching,
activities as
Greg
see
also
neighborhood
general.
Consid-
ory
City Chicago,
394 U.S. at
er the exchange that followed:
(1968),
S.Ct. 946
or distributing leaflets
A.
In front of his dwelling was the
door-to-door,
State,
Schneider
see
you
words
used?
*13
147,
U.S.
mate” and may be
unconstitutional.
Q. Okay.
if
expand
And we
that same
remaining question is whether the over-
thirty
fact from
to a hundred houses
breadth —the range
protected
speech
... would that
change
applica-
purports
ordinance
prohibit
to
sub —is
bility of the ordinance?
stantial.
A.
I don’t believe so.
What kinds
activity
does
Fargo
attempt
ordinance
to reach?
In deter-
Q. Okay.
your
And
police force was
mining the
breadth
ordinance before
authorized to
it that way.
enforce
it,
Frisby
Court relied on the town
They
A.
were authorized to
it
enforce
attorney’s insistence that his town’s ordi-
if they
probable
had
cause to be-
nance would
be
in variety
enforced
a
lieve that that ordinance was being
probably
unconstitutional ways,
even
violated.
though
plain
language suggested that it
Q.
could be. 487
at
On the hypothetical
just
I
gave you
case,
In this
plaintiffs’
you
asked
felt there
attorney
probable
was
cause
Fargo Police Chief Ronald
thirty
Raftevold
those cases of
houses and a
whether probable cause for arrest would
hundred houses so long
pick-
as the
if
person
exist
a
holding
picket
a
sign
eting
persuade
intent and to
and to
enforced, but,
1. The Court focuses on the circumstances un-
importantly,
more
at what sort
der which the
applied, appar-
ordinance was
of enforcement it authorizes.
It is worth not-
ently
Lhat,
taking
however,
plaintiffs'
the view that the
ing,
over-
according
to
breadth
long
claim
city
must fail as
as
reports,
plaintiffs
incident
were arrested
constitutionally prohibit
could
the kind of
marching silently
back
forth
in front
plaintiffs
residence,
conduct for
actually
which
were
group:
of a six-house
the Bovard
it,
arrested. That is
incorrect. The
two houses on one side of
three
on the
claim that the
was
ordinance
overbroad on its
other.
JA
by
This fact
194-95.
face,
applied
not merely as
to
prevents
them.
In evalu-
itself
us from saving the ordinance
ating
challenge,
the facial
we must look not
adopting a construction
narrow as the
only at how
actually
the ordinance has
Frisby.
been
one in
II.
pres-
there was
person
one
protest
ent.
reasons, the ordi
some of the same
For
sig
tailored to a
answered,
narrowly
nance was not
Asked and
MR. MILLER:
true
interest.
It is
governmental
nificant
Counsel.
protecting
interest in
resi
that the state’s
243^45.
JA
Frisby
significant.
is
privacy
dential
sub
interpretation
Raftevold’s
Chief
pamphlets. 1. RIEDL, S.Ct. at n. Appellee, John D. An eight-foot person’s body zone around a manifestly different from a zone of one GENERAL AMERICAN LIFE hundred, thirty, or even five houses COMPANY, INSURANCE around residence. this case should Appellant. doubt, inbe the Hill explicitly Court stat ed that the Colorado ordinance “inter No. 00-2120WM. far speaker’s ability fere[d] less with a United States Court of Appeals, communicate than did the total ban on Eighth Circuit. picketing on the sidewalk outside a resi Schultz). . .” (upheld Frisby dence Submitted: Jan. 2001. Id. at 2497. If Frisby help does not Far Filed: April go, neither can Hill. III.
I believe the is liable here.
ordinance is invalid on its face. A munici
pality § faced awith 1983 action cannot
plead qualified absolute immunity, nor *15 good
is the faith of its officers a sufficient defense. See Indepen Owen
dence, Missouri, city L.Ed.2d 673 A
is liable damages § under 1983 if its
officers deprive of liberty pursu someone
ant to a facially municipal unconstitutional See, Brownell,
ordinance. e.g., Douglas v. (8th Cir.1996) (denial
rade permit overbroad
ordinance); Gerritsen v. Ange
Los
les,
(9th Cir.1993) (arrest
pursuant to prohibition overbroad on dem in a
onstrating park public per without
mit). just did that.
I respectfully dissent.