Frye v. Kansas City Missouri Police Department

stand for that she can conclusion court’s as reports Pecoraro’s Dr. and Jedlicka’s sup- and day eight-hour in hours an on six to stand able is that Charles agreeing that she reading of record my ports eight- an six hours at least her feet sitting and between to alternate needs around. she can move long as day as hour works. standing as she in- correct that is the whether question I my In testimony. of their terpretation to be required if is I that Charles believe that Charles stating view, doctors day each eight hours six out-of on her feet if day eight-hour a six- to work only could job, perform her unable to she will be Dr. stand. alternately sit and she standing her change to if she is able even as testified expert, Steiner, the neutral Rather than time. time to position follows: woman, an year old fifty-seven deny describes this record Generally I think to from 1981 record excellent work level. pound the ten lifting at someone on disability based security benefits social if it feet limit I’d time think I don’t record, remand we should incomplete an some. around ability to move an involved Drs. Jedl- to recall with directions the ALJ ivould, to ten limited be Sitting fifteen Steiner, Pecoraro, as ieka, as well and I place. standing as would minutes determine whether expert, vocational be would neck motions repetitive think eight- of an hours can work six out Charles bending, repetitive As would precluded. feet the on her if must stand day hour she kneeling and and stooping twisting and opportu- of time without period entire kinds are the those crawling. So and stand. alternately sit nity to de- would- limitations think record I scribe. added).) I read his

(R. As (emphasis 70at Dr. Stein- unclear whether

testimony, it is Charles joba envisioning which

er was thus at times to sit be

would able It is inher- on her feet. the burden

relieve disability deny Charles’s wrong

ently Pecoraro, Jedlieka, Drs. unless

finding clarify his chance to has a each

Steiner

testimony. Hale, FRYE, Eugene Lowell supported this case My view of Plaintiffs-Appellants, hypo- testimony, and own

Charles’s by the ALJ question posed thetical Plaintiff, Leake, Anthony lan- same Using the expert. vocational Steiner, appeared the ALJ as Dr. guage Schilling, Rickman, Gary Richard would jobs in which Charles inquire Plaintiffs-Appellants, in intervals. sit and stand able to wheth- not indicate expert does vocational Plaintiff, Lackey, Carl Charles available jobs where there are er sitting -the move between be able Schilling, Schilling; Deborah Elizabeth addition, position. standing Plaintiffs-Appellants, she hearing that stated Charles 57.) (R. at very long.” “can’t stand for Plaintiff, Leake, Noah district contradicts directly This Hale, Kathryn Coons, Darla

Plaintiffs-Appellants,

KANSAS CITY MISSOURI POLICE

DEPARTMENT, Board of Police

Commissioners, Tommy Woods, Police

Officer, sued his individual and of capacities, Ludwig,

ficial Christina Does, 1-20,

John Police # Officers

sued in their individual and official

capacities, Eckhold; Kay Dennis

Barnes; Zobrist; Young, Karl Brian City

as members of the Kansas Board Commissioners,

of Police in their in capacities,

dividual and official Dale

Close, Legal Advisor to the Kansas

City Commissioners, Board of Police

in his individual and capacity, official Tarwater,

Police Officer in his indi capacities,

vidual and official Defen

dants-Appellees.

No. 03-2134.

United Appeals, States Court of

Eighth Circuit.

Submitted: Nov. July

Filed:

Rehearing Rehearing En Banc Sept.

Denied 2004.* * Wollman, Judge Judge Sheppard Morris Judge Ar- grant banc. petition Beam would nold, Judge Judge Gruender and Benton rehearing by panel. for grant petition rehearing en Geoffrey R. Sur- and

Francis J. Manion KY, and Nielson Hope, Todd of New tees MO, City, appellants. for Kansas of MO, City, Kansas H. of Dale Close MO, Jr., for Ralls, Liberty, F. James appellee. LOKEN, Judge, and Chief

Before BEAM, Judges. Circuit McMILLIAN McMILLIAN, Judge. Circuit Hale, Frye, Eugene Lowell Appellants Eliza- Rickman, Schilling, Richard Gary Schilling, Darla Schilling, Deborah beth appeal Hale, Kathryn Coons in the Court1 District entered judgment grant- of Missouri District the Western for Smith, Missouri. United Ortrie D. 1. The Honorable District Judge for the Western District States summary judgment ing by motions filed fected depo- demonstration. his Missouri, City, sition, Kansas officers. by Wranich stated: “Drivers who were Frye Dep’t, F.Supp.2d v. Police 796 looking at the nearly running (W.D.Mo.2003) (Frye). Appellants argue into the backs of other vehicles.” One that the district court erred in holding that the motorists told the officers that she was the officers were entitled im- so shocked photographs that she munity. We affirm. slammed on and had brakes to pull .her over into a lot in parking order to recover. BACKGROUND Two complained motorists Saturday, On approxi- June young children in their vehicles and were a.m., mately 11:00 appellants and several upset that the easily children could see the other individuals assembled at the inter- photographs. All of the motorists com- heavily of two section trafficked roads in plained viewing that graphic photo- the City, Missouri, Kansas to pro- and graphs impaired ability “safely information vide about abortion. There and properly control their vehicles.” á grocery corner, was store on one shop- ping corners, centers on or Tarwater near two told the and a demonstrators that strip “poster-size mall on the the fourth photos corner. The dem- were offending placed people onstrators passing through themselves between the the intersection curb, [and sidewalk and the creating thus] distance of about a hazard to public safe- ty.” two or three feet from He then the street. Some of asked the demonstrators to the demonstrators move away small further held Oth- from the road with the placed large, poster-sized large ers photographs of ap- of the mutilated fetuses. refused, proximately three-by-five-feet They on and gave the Tarwater them the ground. option Some of of larger signs staying the dis- at the same location as played long color photographs they of as aborted fetus- did not large the es. example, For appellant photographs Lowell that creating Hale a traffic placed a large sign displaying They again hazard. photo- Tarwater, refused. graph of the decapitated head of a who had sought fetus-on city’s advice from the at- one side and a photograph torney, parts they of a told them if refused to either dismembered fetus on stop the other relocate or “right side displaying large photo- along the graphs curb.” fetuses at mutilated the side of road, they would be They arrested. In response to complaints about “offen- again refused and appellants five were ar- signs,” sive police officers Christina Lud- rested for violating city’s loitering ordi- wig Tommy dispatched Woods were nance, which, in part, relevant makes it the intersection. telling After the demon- any “unlawful for to ... person stand ... strators could continue to dem- either alone or in concert with others in a long onstrate as as did not create a public place in such a manner so as to hazard, traffic left officers the scene. any street, public [o]bstruct public high- A later, few minutes the officers returned way ... by hindering or impeding the free speak to a group of motorists who had and uninterrupted passage vehicles, stopped complain the photographs traffic, pedestrians.” Mo., City, Kansas of mutilated along fetuses the side'of 161(a). Ordinances, § 50— Captain road. Rex Tarwater and Ser- geant William Wranich also were dis- In March eleven of the demonstra- patched to the scene. Wranich observed tors present civil rights action in .filed heavy traffic was being was af- court, federal district alleging that the po- asserting party favorable to the light con- most their federal had violated lice officers injury, alleged and assem- do the facts show of free rights stitutional and freedom violated a protection, officer’s conduct constitutional bly, equal law alleged Katz, state They also right?” arrest. Saucier v. false filed mo- If tort claims. 150 L.Ed.2d 272 on summary judgment so, tions inquiry the next “is to ask whether immunity grounds. “This clearly was established.” right Id. note, it must under inquiry, is vital offi granted the police

The district specific taken in context light held The district court cers’ motions. proposition.” general not as a broad reasonably inter officers had determining whether Id. con prohibiting as ordinance preted the established, it clearly. we ask “whether thereby motorists distracted duct that to a reasonable officer would be clear impeding street obstructed unlawful his was situation the First conduct Noting traffic. flow of safe important Id. It is also to he confronted.” not entitle does citizens Amendment duty field is hazards, district court note that “an officer safety create interpreta imposed to make reasonable police officers had entitled held that of the obligated not because law he is to enforce.” restrictions tion of the reasonable 289, mes 296 City Fargo, anti-abortion appellants’ (Habiger content of v. (8th Cir.) denied, ef (Habiger), of the deleterious cert. U.S. sage, but “because 519 they 1011, 518, chose of manner which 136 L.Ed.2d fects 117 S.Ct. Frye, message. (1996)). express apply principles their these be We ” court em at 799. The district F.Supp.2d. qualified immu purpose cause “the forbid officers had not that the for phasized provide ample room nity doctrine is any of den the demonstrators ‘all and to but judgments mistaken fetuses, of mutilated large photographs or those who incompetent the plainly they place where only restricted but Id. at 297 knowingly violate the law.’” a traffic in order to avoid 335, could be shown Malley Briggs, v. (quoting (1986)). Id. at 800. district hazard. 1092, 341, 106 89 L.Ed.2d 271 S.Ct. jurisdic supplemental to exercise declined no inquiry, there is dis- to the first As tort claims the state law tion over a First Amend- appellants that pute prejudice. those claims without dismissed express their views right ment followed. appeal This forum. As to abortion in DISCUSSION argue appellants inquiry, second grant of court’s review We district misapplied First Amendment district court de novo. summary judgment grant of case, in the as taken law to the facts if, after judgment appropriate, Summary non- to them as most favorable light light in the most viewing the evidence offi- They concede that moving parties. there is nonmoving party, to the favorable cers: fact, and the of material genuine

no issue reasonable restrictions may impose as a judgment is entitled to moving party time, protected or manner place, See, Corp. e.g., law. Celotex matter of “are the restrictions provided speech, 2548, 317, Catrett, S.Ct. con- justified without reference L.Ed.2d regulated speech, tent of the signifi- narrowly tailored to serve a are immunity appeal, In a interest, governmental in the cant inquiry “[t]aken is whether our first 2746). words, ample alternative chan- 109 In open other “[t]he leave government’s purpose controlling of the informa- is the nels for communication Ward, 791, 109 consideration.” U.S. tion.” . addition, regulation S.Ct. 2746 In “[a] Racism, 491 U.S. Against v. Rock Ward purposes serves unrelated to the con 105 L.Ed.2d 661 109 S.Ct. neutral, expression tent of is deemed even (1989) (Ward) (quoting Clark v. Commu speak if it has an incidental effect on some Non-Violence, 468 nity Creative messages, ers or but not others.” Id. 82 L.Ed.2d 221 (1984)). In taking the facts

However, that, appellants argue light appellants, most favorable to here, police agree police officers’ restrictions were with the district court that the content-based, impose not content-neutral. officers did not restrictions based argue particular, appellants that the dis appellants’ message. on the content of As police noted, ratified the officers’ im trict court police the district court officers veto,” reasoning proper use of a “heckler’s did not appellants expressing forbid imposed police that the officers the restric Indeed, message. their anti-abortion tions based on the motorists’ adverse reac appellants officers did not forbid large photographs tions to the of mutilated from expressing message by their the use fetuses the side of the road. It is true of the large photographs displaying muti course, speech, right to free “[t]he Rather, lated fetuses. attempt persuade includes the placed reasonable restrictions on the loca views, change may others to not tion of protect public order to simply speaker’s be curtailed because the safety. gave The officers the demonstra message may be offensive to his audience.” option staying by tors the the side of the Colorado, 703, 716, Hill v. 530 U.S. 120 if display large, road did not (2000) (Hill). 2480, S.Ct. 147 L.Ed.2d 597 graphic photographs that had distracted “ However, may not be the content ‘[i]t option motorists or the of displaying the speech, as much as the deliberate ver photographs at a location further from the justifies bal or assault that proscrip visual Thus, road. police narrowly officers ” (quoting tion.’ Id. Erznoznik v. Jackson tailored signifi the restrictions serve a ville, 205, 6, 422 210-11 n. U.S. 95 S.Ct. cant governmental open interest and left (1975)). 2268, 45 125 L.Ed.2d alternative channels of communicating message. their Thus, must determine wheth er in police placing officers’ conduct Although appellants argue large right restrictions on the a to display large, graphic photo- signs displaying photographs graphs road, of mutilated at the side of the the Su- fetuses appel preme was based on content of regularly rejected Court “has message, lants’ anti-abortion or a people on con assertion that ‘propa- who wish to “ principal inqui gandize tent-neutral factor. ‘The protests or views have a constitu- ry in determining neutrality, content in tional right to do so whenever and howev- ” time, speech in generally place, cases they please.’ er and wherever United Grace, particular, or manner cases in 171, 177-78, is whether v. States 461 U.S. 103 (1983) adopted regulation 1702, has a S.Ct. 75 L.Ed.2d (quoting 736 Florida, of speech disagreement 39, because of Adderley 47-48, v. 385 U.S. 87 ” 719, 242, (1966)). message conveys.’ it Id. at 120 S.Ct. 17 L.Ed.2d 149 In this Ward, (quoting 791, case, S.Ct. 2480 491 U.S. at officers’ conduct did “not 2240, Lohr, 518 U.S. S.Ct. rather veto’ but for a ‘heckler’s provide (1996)). They also con- 135 L.Ed.2d 700 freely in engage every speaker allow[ed] afforded to offen- protection cede that “the communicating. all activity expressive any always messages does not embrace sive subject only to” viewpoints messages is so intrusive that an offensive restrictions. place and manner reasonable avoid it.” Id. at unwilling audience cannot 734, 120 2480. Hill, at 530 U.S. S.Ct. However, they argue 120 S.Ct. argument, Nor, appellants’ contrary to allegedly offen- [their] that “the fact that look to impermissibly did the district driving speech may affected sive have which to determine “signs their irrelevant,” simply motorists is skills of (based [the] removed California, relying on Cohen generated), the signs the reaction (1971) L.Ed.2d 284 Appellants Br. for could remain.” which (Cohen). Br. for at 25. Appellants Hill, reject Court Supreme In at 20. mis reliance on Cohen is Appellants’ case, abor argument. ed a similar Supreme In that Court placed. that a state statute argued protestors tion to wear protestor’s tolerated a it necessarily content-based was lan vulgar his views in jacket expressing the content of necessary to examine was of a courthouse guage the corridors wheth determine statement to protestor’s “effectively avoid because viewers could Supreme it violated the statute. er of their sensibilities further bombardment explaining “[i]it disagreed, Court averting eyes.” 403 U.S. simply by content in the law examine common However, rec “[t]he at S.Ct. to determine a communication un avoiding ognizable privacy interest that it had “never speaker’s purpose” and widely varies dif communication wanted held, improper it is suggested, Hill, settings.” ferent an oral or written at the content of look undisputed that the anti It is S.Ct. 2480. in order to determine whether statement place took demonstration abortion a course of applies to the rule of law during busy intersection heavily traveled Hill, conduct.” police officers ob day. part Fargo, 2480; City v. see also Veneklase of large signs of the presence that the served (8th Cir.) (“We 738, reject the 745 248 F.3d of fetuses mutilated depicting photographs might inquiry an that because argument creating a traffic road side near the was per determine whether a necessary to complained all hazard. The motorists therefore picketing, the ordinance son is is impaired their photographs viewing denied, content-based.”), cert. their vehicles. ability safely to drive 42, 15 815, 122 151 L.Ed.2d S.Ct. is had not occurred fact that an accident enti sufficiency of officers were police As to the irrelevant. The presented not interest, appellants do that the situation tled to decide governmental See an occurred. they, danger accident “[i]t nor could before dispute, 591, of, F.2d 930 ‘police v. Louis ACORN St. Cqunty, traditional exercise State’s (“The (8th 1991) need safety of 596 Cir. the health powers ” safety justify Hill, 120 for accidents not wait their citizens.’ Medtronic, regulations.”).2 Inc. v. (quoting 2480 case, In Ol of fetuses. photographs mutilated directly Although at issue in not Lincoln, 1180 City 192 F.3d mer v. had com motorists we note that several of omitted), 1999) (8th (internal quotation an Cir. children had viewed plained that their minor 792 case, appellants

In a case similar instant the we note that before ar rested, rejected protestors’ abortion city Ninth Circuit Tarwater consulted with the they right only had the “not argument attorney and followed his advice. Al their cause but also to select though following advocate an attorney’s advice to be the most effective they what believe automatically “does not cloak [officers] doing City so.” Foti v. Men means qualified immunity,” it can “show the of ” (9th Cir.1998) Park, 629, 641 lo 146 F.3d reasonableness the action taken.’ omitted). (internal case, quotation City v. Neigh Womack of Bellefontaine case, protestors (8th as in this wanted bors, Cir.1999) 193 F.3d three-by-five-foot posters of abort Stores, (quoting E-Z Mart Kirksey, Inc. v. fetuses, city regulated ed ordinance but (8th Cir.1998)). Indeed, F.2d of picket signs. the size and number recently the Seventh Circuit stated that that although Ninth Circuit noted “[c]onsulting prosecutor may give not an protected Amendment their First immunity officer absolute from being sued cause, their the First Amend advocate arrest, goes for false but it far to establish give “right ment did not them a to dictate immunity.” Kijonka Seitzing in convey the manner which er, (7th Cir.2004) (inter 363 F.3d message within their chosen avenue.” Id. omitted). nal citation In this The court held that the restriction on the reasonably officers acted and “sure permissible “was manner ly thought probable cause to light City’s substantial interest [appellants].” arrest Habiger, 80 F.3d at requiring greater to devote drivers atten Thus, the district court did not err driving tion to conditions and the road granting summary their motion for judg signs.” Id. 642. The same can be said ment as to the false arrest claim. Id. here, and the district court thus did not Accordingly, affirm judgment granting summary judgment ap err in the district court. pellants’ First Amendment claims.

Regarding appellants’ false ar BEAM, Judge, Circuit dissenting. claim, [qualified] rest “the issue for immu I dissent because the Constitution does nity purposes probable is not cause in fact not allow a group passersby small arguable probable but cause.” Habiger, censor, through their complaints, the con- (internal omitted). quotation F.3d peaceful, tent of a stationary protest. The The district court did not err in holding veto, First Amendment knows no heckler’s reasonably inter Hungerbeeler, Robb v. preted prohibiting the ordinance as con (8th Cir.2004), even in an abortion case. duct which thereby distracted drivers and public obstructed a street “hindering I. the free and uninterrupted flow of traffic.” Mo., Ord., 50-161(a). City, § Kansas government As When the enforces a heck- noted, previously veto, duty “an'officer on in the infringes ler’s it upon the First field is to entitled make a reasonable inter Amendment’s most vital role. The First

pretation of obligated the law he is guards jealously Amendment a citizen’s Also, Habiger, enforce.” to express even controversial and is, city's important; abortion that “a significant, stated the interest is protecting very young interest children compelling, legitimate.” frightening from images constitutionally is

793 (1997) (holding prohibi- “may 874 L.Ed.2d speech messages shocking communicating it indecent high purpose knowingly when tion on serve its best indeed unrest, creates dis of material minors in Internet forums was a condition induces are, conditions as powers it conferred “broad satisfaction invalid because anger.” Terminiello people even stirs in the form of a ‘heckler’s censorship, 894, 4,1, 93 69 S.Ct. Chicago, 337 U.S. veto,’ v. upon any opponent indecent (1949). con government 1131 L.Ed. in- might simply log on and speech who of(and violates) the First role fuses the discoursers that his 17- form the would-be trig it allows citizens when Amendment present”). ... year-old-child speech because the suppression ger speech is, vetoes prohibition of hecklers’ (i.e., hecklers when it allows them offends protection essence, the First Amendment veto). Inc. v. Fal Magazine, Hustler effectuating a government against 876, 46, 54-55, 99 well, 108 S.Ct. 485 U.S. viewpoint' discrimina- complaining citizen^ (1988) that, if a (holding 41 L.Ed.2d viewpoint dis- genesis tion. The offense, con opinion causes speaker’s not, for it re- matters is the crimination according it con a reason for sequence is an or controversial unpopular moval of Mary v. Bachellar protection); stitutional thé First Amendment. idea that offends 567, 1312, land, 564, 25 90 S.Ct. 397 U.S. (1970) (“[I]t firmly settled L.Ed.2d 570 II. ex our Constitution

that under may prohibited not be of ideas pression speech is not a A listener’s reaction the ideas are themselves merely because regulation. For content-neutral basis hearers.”) (quo of their offensive to some Movement, Nationalist 505 syth County v. omitted); see Erznoznik v. Jack tations 2395, 123, 134, L.Ed.2d 112 120 U.S. S.Ct. 205, 209-210, sonville, 95 S.Ct. 422 U.S. (1992) Barry, v. 485 U.S. (citing Boos 101 (1975) 2268, (citing 125 Cohen 45 L.Ed.2d 1157, 312, 321, 324, L.Ed.2d 108 99 S.Ct. 21, 15, 91 S.Ct. California, 403 U.S. v. Lewis, (1988)); F.3d at 1081. 253 333 (1971)); Spence v. 1780, L.Ed.2d 284 29 can enact “content- While 405, 412, 94 S.Ct. 418 U.S. Washington, on the second restrictions based neutral” (1974) curiam); 2727, (per 41 L.Ed.2d 842 creates, an effect speech ary effects the 611, 614, Cincinnati, 91 402 v. Coates secondary if it arises is not (1971); 1686, 214 Brown 29 L.Ed.2d S.Ct. reactions to from listeners’ specifically 131, 1, Louisiana, n. 86 133 383 U.S. Lewis, (citing F.3d at 1081 speech. (1966); 719, Cox v. 15 L.Ed.2d 637 S.Ct. 1157); 321, Boos, see 108 S.Ct. 485 U.S. Louisiana, 379 U.S. 743; Geoffrey Robb, also F.3d at see (1965); Georgia, Wright v. 13 L.Ed.2d Stone, Regulation and the R. Content 83 S.Ct. Amendment, Mary L.Rev. 25 Wm. & First Terminiello, (1963); L.Ed.2d 349 189, 237-38 743; Robb, 894; F.3d at Lewis, Department the Missouri Wilson, F.3d 1081-82 Lewis v. (DOR) Mary ap- Lewis’s rejected Revenue Cir.2001). (8th Indeed, protection letters with the plate for a license plication forbids stat vetoes even against hecklers’ preventing that argued It “ARYAN-1.” disap that would allow utory schemes high- necessary was disagreeable silence a citizen to proving rejected the invitation safety. We other, way appar by complaining speaker doctrine that ACLU, secondary effects the extend neutral, Reno v. ently grounds. “secondary ef- targeted the far because gusted” by signs. Captain Tarwater rage” pro- “road preventing fects” safety specifically arose that explained then to the demonstrators tecting highway to the license reactions offending people passing from listeners’ “were signs Lewis, The 1081. plates. through creating the intersection a hazard that we assume “[e]ven court concluded public safety.” Appellants’ App. at 79. if about judgment made no the DOR testified Sergeant William Wranich also ... Lewis’s viewpoint Ms. He observed that drivers scene. to censor Ms. Lewis’s reject attempt its over, of an im- pulling were not because potential responses speech because view, paired appel- but some The first amendment recipients. of its signs lants’ offended them. He also de- (em- veto.” Id. at 1082 knows no heckler’s signs: scribes the order to remove the added); Forsyth County, accord phasis They given option A. were an to re- (holding signs, they move the but justified by the “cost of that a restriction they using long as as weren’t the of- order” was content maintaining public fensive effect, based, secondary because it not a Q. you any ordering Do recall officer public’s with the reaction was “associated signs that specific be confiscated? speech”). III. anyone holding A. The order was that demon- the officers arrived When sign, refusing give up sign time, they first acknowl- stration site the would be arrested. the demonstrators had a

edged that they to be where were. Officer Woods Q. Okay. you say they And when were standing no one testified that he saw given put a chance to sign, down the holding signs roadway or over the street. signs did that include all of the that minutes, After five to ten the officers left. day? present were site, the officers returned to the When signs, A. It was the ones offensive change only significant pres- was the traveling public had com- ence and volume of the hecklers. Officer plained about that were offensive. standing no one in or Woods still saw added). (emphasis Id. at 120-21 holding signs roadway.3 over the He did The story. other exhibits tell the same argument see an a demonstrator between Captain record shows that Tarwater spoke and a motorist. And the officers told the demonstrators that “if re- with complainants several about the dem- put away disturbing, graphic fused to complainants None of the stat- onstration.4 photos, they placed ed would be ar- appellants holding signs were over under Instead, standing roadway. on the rest.” And the tickets the officers issued complainants charge appellants that the that the report “[d]id shows unlawful- “shocked,” “distraught,” ly and “dis- ... street hindering obstruct deny signs protestors pulled or their lants’ over. woman One Because the were in the street. officers moved actually joined by holding the demonstration summary judgment, we must resolve this sign, expressed and the other interest in dispute appellants' factual favor. doing so. Neither individual testified roadway was obstructed. Along drivers that officers in- terviewed, people appel- two other saw the Lewis, rage. 253 F.3d at 1081. Nor uninterrupted road free the impeding in public safety interest allow a traffic, graphic does the by displaying passage fprbid adopting the KKK from state to a hazard caus- causing a matter traffic though may be highway, passersby even emotionally dis- to become ing drivers the outraged when realize Klan swerve and come causing them to traught and Robb, highway. the See sponsors their brakes." slam on pamphlet A forbid at 743. state cannot in terms of argue the officers Although recipients may litter. distribution Safety protecting public in interests Irvington, Town Schneider v. obstruction, these traffic preventing 60 S.Ct. L.Ed. re- directly from listeners’ arose concerns may some danger patriots And the remain if could protestors The' actions. jacket says violently a react to. signs? certain Which removed justify not THE DRAFT” does “FUCK above, to the exhibits described According jacket the from one who the state seize protestors safety that the public demanded Cohen, in a courthouse. wears it shocking, disturbing, graphic, the remove com- the photos that offensive situations, speaker the all of those is con- police This action plained about. pun- and the must protected, just be a state statute as would tent based contro- lawlessly react to a any those who complaint of directing “upon the ish Schneider, 308 U.S. message. versial photo is of- that a demonstrator’s citizen Cf. (“There are 60 S.Ct. obvious citizen to become and causes the fensive Amongst vehicle, littering. preventing the methods of operate too emotional actu- of those who punishment to these is the demonstrator order the state shall streets.”). the If ally papers upon throw case and police Both the move.” angers a KKK-sponsored billboard the hypothetical the state enacted the speed, the content-neutral, and causes her “sec- driver proffer statute driver.; If a motorist be- must ticket the justifications. But because ondary effect” plate that outraged at a license directly comes arise concerns both cases the ARYAN-1, charges law still the reactions, the the law reads listeners’ from duty to control his vehi- based, with the secondary motorist content not them deems punches Mr. Cohen for words, If a veteran protect- law cle. In other effects. must arrest jacket, wearing mean- his places against hecklers’ vetoes ing the veteran for assault. secondary effects doc- on the ingful limits the.facts, Here, viewed when trine. in this why, we I don’t understand demonstrators, light most favorable of the listener speaker instead target speaker for silenced show ticket vehicle. We to control his who fails listen- directly from the that arose reasons litterer, But pamphleteer. not the reaction. ers’ holder, not one pro-life sign ticket by stopping erratical- traffic government who obstructs Myriad cases forbid (I if protestors. wonder ly silencing speaker ticket, for City police would Kansas reaction. listener’s unlawful against whose “of- pamphleteer Coates, littering, pro-life See, e.g., recipi- a shocked pamphlet caused of a fensive” cannot the use A state forbid it.) must motorists drop ent to Missouri .white-supremacy plate bearing a license sign KKK road themselves when passersby control on the fear that message based them, not when apparently but experience offends offended and become might audience; pro-life captive “offensive” mes- that he is a member of a confronted with is, privacy interests who rear ends the car his “substantial sages. person The being essentially invaded in an intoler- plate license is re- are ARYAN-1 bearing an Hill, accident, able manner.” Id. In the Court but in this case for the sponsible merely “recognizable priva- noted that the sign holders that informed cy avoiding acci- interest unwanted communi- responsible held could be widely settings.” cation varies in different signs. controversial dents caused Colorado, 703, 716, 120 Hill v. Amendment does not allow such First 2480, 147 L.Ed.2d 597 To- Today, the court creates a S.Ct. distinctions. day, court notes existence of a in abortion jurisprudence content-based busy presence large intersection and the cases. I signs and moves on. have no idea how duty “A has the not to police officer these two factors affect the substantial- a nor ratify and effectuate heckler’s veto privacy-interest showing necessary to si- join moiling sup- a mob intent on may he speaker. a lence Instead, pressing ideas. he must take rea- protect” persons exercis- captive-audience sonable action exception applies ing rights. their constitutional Glasson v. degree captivity “where the makes it (6th Cir.1975) Louisville, 899, 906 ... impractical unwilling for the viewer Johnson, (citing 718, 120 163 F.2d 877 exposure.” Sellers avoid Id. at S.Ct. 2480 (8th Cir.1947)). deny omitted); York, I the officers’ (quotations Redrup v. New immunity motion for because no 386 U.S. (1967). Hill, could have concluded

reasonable officer In L.Ed.2d the ordinance (before reading opinion today) court’s message. restricted no It restricted no a he could arrest demonstrator be- speaker. It silenced no The law of a sign cause the offensiveness caused impact protestor had no on awhat other so emotional that citizens to become say sign standing or write on a while ability lost to focus on the road It prohibited approaching sidewalk. a and control their vehicles therefore “ob- patron eight patron’s to within feet of the structing traffic.” body. By doing protected so it both the speaker’s and the listener’s interests:

IY. speaker speak, approach could still but the First, restriction patron allowed the to avert her ways. The court in three errs eyes. case, stationary In this had a this is not captive-audience case. Sec- forum, ond, protest, where the will content-based distinction cannot be (as time, ing join drivers could one “manner” restriction under did) third, and the place, unwilling audience could sim and manner test. And ply away. look secondary These sidewalk demonstra apply effects doctrine doesn’t no passing captive, here. tors held drivers so the away drivers should have looked and driv First, this is not a captive-audi- en on of looking government instead ence it errs when relies Cohen, to silence the demonstrators. upon distinguish Hill to Cohen. most S.Ct. 1780. situations, cannot silence Second, adroitly the listener from offen- phrased court’s Cohen, messages. sive time-place-and-manner 403 U.S. at discussion cannot ability S.Ct. 1780. The to silence is limited hide the heckler’s veto. The court notes situations in which the listener can show that “the placed reasonable put away them “if refused to signs.” location of the on the restrictions complete disturbing, graphic photos.”). signs? Ante at 790. Which read, “the officers sentence no The First Amendment knew heckler’s loca- on the placed reasonable restrictions veto, today. respectfully I before dissent. passersby de- signs tion disgusting.” as scribed offensive restrictions are not content-

Such selective

neutral manner restrictions. justify the restriction

Nor can the only secondary or “incidental” having

as already Id. We re- expression.

effect on Here, in Lewis. jected approach America, UNITED STATES of specifically from “traffic obstruction” arose Appellee, “even if we passersb/s reactions. So judg- made no assume that [the officers] demon- viewpoint of [the ment about RAMOS-CARABALLO, Appellant. Jose reject at- speech,” we must

strators’] on the tempt to censor the based No. 03-2274. Lewis, passersby. response F.3d at 1082. of Appeals, United States Court

Eighth Circuit. V. Feb. Submitted: distraction, city If create a visual July Filed: limits, pro- regulate, within how close can It can can to the street. testors stand signs. But it can’t choose

limit the size messages demonstrators can

which limit the street. It can’t which mes-

near large

sages place demonstrators can certainly And cannot determine, under an offensive-

let citizens criteria, demonstrators can

ness which through which means.

protest where

Otherwise, government “would effec- majority

tively empower a to silence dissi- predi- simply personal

dents as a matter of Cohen,

lections.” (Wranich

1780; Appellants’ App. Depo- see

sition) (“[T]hey at 121 as

long using as weren’t the offensive “the

signs.” ordered them remove We signs, traveling the ones that the

offensive that were of- complained

fensive.”) added); Appellants’ (emphasis (We would arrest

App. at 113 told them we

Case Details

Case Name: Frye v. Kansas City Missouri Police Department

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 26, 2004

Citation: 375 F.3d 785

Docket Number: 03-2134

Court Abbreviation: 8th Cir.