315 F. Supp. 3d 1256 | M.D. Fla. | 2018
If individuals or religious groups organize a prayer vigil and gather in the Downtown Square in the City of Ocala to pray for an end to violent crime, the First Amendment to the United States Constitution will protect the "free exercise" of their religion. But what if the government organizes and sponsors the prayer vigil? That is a problem because under the Establishment Clause of the First Amendment, the government cannot conduct such religious activity. Yet that is what happened here. While the Ocala Police Chief and his subordinates were no doubt well-intentioned and sincere in sponsoring the Prayer Vigil, their actions violated the First Amendment.
I. Introduction
When the City of Ocala experienced a violent crime-spree in the late summer and early fall of 2014, its police department sought to curtail the violence using all available means. As part of those efforts, Chief of Police Kenneth Gregory "Greg" Graham met with members of Ocala's faith-based community to seek their assistance. What resulted was an invitation from Chief Graham to the community, promoted *1264on the Ocala Police Department facebook page and elsewhere, encouraging everyone's attendance at a "Community Prayer Vigil" on September 24, 2014 in the Downtown Square. The plaintiffs, who are atheists, contacted Chief Graham and Ocala's mayor, Reuben "Kent" Guinn, in advance of the Vigil, advising them of their concern that the City's promotion and sponsorship of a Prayer Vigil would violate the United States Constitution's Establishment Clause. The plaintiffs were rebuffed, the Vigil took place, and this lawsuit followed.
Efforts to settle the case failed and the parties filed cross-motions for summary judgment (Docs. 52, 53, 54) and responses thereto (Docs. 61, 62, 64, 68). The Court held argument on the motions on May 26, 2017, the record of which is incorporated by reference. The parties made further efforts to settle, but those too failed and the Court now issues this decision.
II. Undisputed Facts
In September 2014, the Ocala Police Department pursued various means to try to apprehend those responsible for the recent shooting spree that left several children injured. Graham Dec. I
The purpose of the meeting was to develop ideas about how "to get the ministers in that area to lean on, talk to, encourage witnesses to come forward" so the police could hold the perpetrators accountable. Graham Depo. (Doc. 54-10) at Tr. 21. Chaplain Edwin Quintana suggested that a prayer vigil or similar event on Ocala's public Downtown Square might bring the faith-based community together to get the word out and encourage people to cooperate. Graham Dec. I (Doc. 52-1) at ¶ 10; Graham Depo. (Doc. 54-10) at Tr. 23. Chief Graham "thought it was a great idea" and said "Let's do it." Graham Depo. (Doc. 54-10) at Tr. 23. Graham says he then left the meeting and Quintana and Haynes began planning the Vigil, creating a letter for Chief Graham's and Haynes' signatures that invited the community to participate in the Vigil.
*1265at ¶¶ 7, 9; Quintana Dec. (Doc. 52-3) at ¶¶ 5 & 6. Chief Graham read the letter and directed an Ocala Police Department Sergeant to post it on the Ocala Police Department's facebook page, and Haynes and the Chaplains encouraged members of the community to attend the Vigil. Graham Dec. I (Doc. 52-1) at ¶ 11; Graham Depo. (Doc. 54-10) at Tr. 31, 58; Graham Inter. Resp. (Doc. 54-6) at # 1; Haynes Dec. (Doc. 52-2) at ¶ 8, Quintana Dec. (Doc. 52-3) at ¶ 7. Chief Graham agreed that by posting the letter on the Ocala Police Department facebook page, he was "promoting" the Prayer Vigil. Graham Depo. (Doc. 54-10) at Tr. 50.
Printed on Ocala Police Department letterhead (with the image of the Ocala Police Department badge and words OCALA POLICE DEPARTMENT displayed at the top, and the Department address and phone number at the bottom), the text of the letter read:
Blessings to all our citizens, specifically Pastors, Community Leaders, Parents and our precious youth.
We are facing a crisis in the City of Ocala and Marion County that requires fervent prayer and your presence to show unity and help in this senseless crime spree that is affecting our communities.
Within the last 30 days we have had numerous shootings that have resulted in two children and an infant being hit by bullets.
Stray bullets do not have respect for addresses, social status, economic status, educational background, political status and the list goes on. Buy my point is none of us are exempt from stray bullets.
I am urging you all to please support a very important "Community Prayer Vigil" that will be held this coming Wednesday, September 24, 2014 at 6:30 pm to be held at our Downtown Square located in the heart of the City.
Please support peace and this appeal for unity on this very important "Community Prayer Vigil" coming this next Wednesday. We need you.
The letter was signed with "Blessings and Highest Regards" by Greg Graham, as Chief of Police, and Narvella Haynes. See Doc. 1, Ex. A. Here is an image of the letter:
*1266Ocala Police Department staff created a separate flyer about the Vigil which depicts a photo of the gazebo covered stage in the Downtown Square with an image of praying hands in one corner and the Ocala Police Department logo in the opposite corner, and the words "Community Prayer Vigil Wednesday, September 24, 2014 6:30 p.m. Ocala/Marion County is in crisis! Help Stop The Violence! Join us downtown on the square." Doc. 54-22 (marked Ex. 6) at 7. The Police Chief's letter and an earlier version of the flyer (created before the Ocala Police Department logo was added) were sent to Narvella Haynes by Officer Williams on September 19. Doc. 54-23 (marked Ex. 7).
Quintana invited several local clergymen to participate in the Vigil and sent an email to the Ocala Police Chaplains (copying Graham) telling them that Chief Graham asked Quintana to ask all the Chaplains to be present at the Vigil and to come wearing their Police Chaplain uniforms. Quintana Dec. (Doc. 52-3) at ¶¶ 7, 8; Doc. 54-26 (marked Ex. 10) (9/22/2014 email to chaplains from Quintana, copying Graham).
The Ocala Police Department supplies and pays for the Chaplains' uniforms. City Inter. Resp. (Doc. 54-5) at # 7. Chief Graham testified that when the Chaplains are in their police uniforms, the public would perceive them as being connected with the Ocala Police Department. Graham Depo. (Doc. 54-10) at Tr. 165-66. The Chaplains have office space in the Ocala Police Department's building. Id. at Tr. 169. According to the Ocala Police Department Directive, "Ocala Police Department Chaplains are official members of the Ocala Police Department[,]" who are "appointed by the Chief of Police," and are "considered members of the staff of the Chief of Police in a support capacity and report directly to the Chief of Police." Doc. 52-6 (marked Ex. 2) at 2. "They are issued Police Identifications in the form of an identification card with holder and badge[,]" id., are issued cell phones, and are authorized to drive Department vehicles.
*1268Soon after the Vigil was advertised, several citizens, including some of the plaintiffs, contacted Chief Graham and Mayor Guinn, expressing concern that a prayer vigil organized by a police department would violate the U.S. Constitution. See, e.g., Doc. 52-9 at 3-4 (9/20/2014 6:03 p.m. email); Doc. 54-51 (marked Ex. 35) at 2 (9/22/2014 5:14 p.m. email). Initially, Chief Graham's responses tended to take ownership of the Vigil, saying, for example, "I have no intention of canceling the event," Doc. 54-40 (marked Ex. 24) at 4 (9/22/2014 4:05 p.m. email), and "[t]his 'vigil' is not the only strategy that we [the Police Department] are employing to fight crime in Ocala" and explaining that the purpose of the Vigil was for the Police Department to engage the faith-based community to help make the community safer. Doc. 52-9 at 3 (9/21/2014 2:43 p.m. email). As the Chief responded to one supporter who wrote to him with the subject line "Stand tall on prayer!":
Thanks for the encouraging words. I have been getting quite a few responses from people, mostly from out of our area, who oppose this. I have no intention on calling this gathering off nor changing my personal belief on the power of prayer. Take care and I hope to see you on Wednesday.
Doc. 54-55 (marked Ex. 39) (9/22/2014 3:55 p.m. email).
Soon thereafter, however, Chief Graham began to distance himself and his Department from the Vigil, responding that the Vigil was a community event he could not stop and over which he had no control. For example, on September 23, 2014, he wrote to one citizen with whom he had been corresponding about the meaning of the Establishment Clause, "I think you are misunderstanding my role in this event. I am not leading the event, I am not speaking at the event, I will be in attendance at the event." Doc. 54-49 at 5 (marked Ex. 33-B) (9/23/2014 4:07 p.m. email). He further wrote that he knew the minister who was organizing it and could put the citizen in touch in case he wanted to attend "and say a few words." Id. To another citizen, he wrote:
I am not sure if I have been clear in any of my prior emails to you that this event tonight is a "Community Prayer Vigil" not an Ocala Police Department or City of Ocala Prayer Vigil and as such I have no say in whether it gets canceled or not. I have indicated to several others that I have no intent on canceling the event and should have expanded my thoughts. If I were to try and cancel this event I would be violating the Constitution by preventing people from gathering and exercising their right to free speech.
Doc. 54-40 at 6 (marked Ex. 24-C) (9/24/2014 2:48 p.m. email from Graham). See also Doc. 54-50 (marked Ex. 34) (9/24/2014 1:27 p.m. email from Graham) ("I am not attacking your rights as an American to freedom of religion, I am upholding others['] rights to express themselves ... this is not a City of Ocala or Ocala Police Department Prayer Vigil, it is *1269a Community Prayer Vigil and as such I have no say in canceling the event").
Although there is no evidence that Kent Guinn, Ocala's Mayor, had anything to do with the planning of the Prayer Vigil, once he learned about it,
I'm proud to stand by my Chief and support him. Times like this do test leadership and that's why we're leading the community in this prayer vigil. Yes, we have heard from folks like you who don't understand the constitution. We are doing absolutely nothing wrong.
Doc. 54-51 (marked Ex. 35) (9/22/2014 6:43 p.m. email from Guinn to citizen, copying Graham). In responding to another citizen's concern about the upcoming Prayer Vigil, Mayor Guinn responded:
Thanks for your interest in our community. There is nothing in the constitution to prohibit us from having this vigil. Not only are we not canceling it we are trying to promote it and have as many people as possible to [sic] join us. We open every council meeting with a prayer. And we end the prayer in Jesus name we pray. Our city seal says "God be with us" and we pray that he is and us with him.
Doc. 54-44 at 2 (marked Ex. 28-A) (9/22/2014 10:24 a.m. email from Guinn to citizen, copying Graham and a pastor and employee of Guinn's church (see Guinn Inter. Resp. (Doc. 54-7) at # 19) ).
The upcoming Prayer Vigil became a matter of public debate in Ocala, with the *1270citizenry vocalizing opinions both for and against it on social media, in communications to Chief Graham and Mayor Guinn, and in local news outlets. For example, one person wrote on the Ocala Police Department's facebook page: "why are the police asking us to pray? will they arrest us if we don't pray?" Doc. 54-18 (marked Ex. 2) at CM/ECF Page 4. Plaintiffs contacted counsel for The American Humanist Association (now representing plaintiffs here) who urged Chief Graham to remove the Prayer Vigil letter from the Ocala Police Department facebook page on the grounds that it was an unconstitutional government endorsement of religion. Doc. 54-46 at 2 (marked Ex. 30-A) (9/21/2014 10:47 a.m. email from David Niose to Graham). Chief Graham responded that his efforts were upholding the rights of others to assemble and that taxpayer funds were used only to the minimal extent that Graham wrote the letter and printed it on Department letterhead. Doc. 54-46 at 3 (marked Ex. 30-B) (9/21/2014 10:57 a.m. email from Graham to Niose).
Chief Graham testified he would have removed the facebook posting if the Mayor had directed him to do so. Graham Depo. (Doc. 54-10) at Tr. 161. Likewise, Mayor Guinn testified that he had the authority to order Graham to remove the facebook posting. Guinn Depo. (Doc. 54-1) at Tr. 54-55. Guinn also said he had the authority to instruct that Ocala Police Department Chaplains not lead prayers at the Prayer Vigil or attend in Ocala Police Department Chaplain uniforms, but he did not consider doing any of that because he believed those actions were permitted under the Establishment Clause. Id. Under the charter for the City of Ocala, the Mayor is the sole municipal official in authority over the Ocala Police Department and he recommends a chief of police nominee to the City Council, who appoints the Chief. Guinn Aff. (Doc. 53-1) at ¶ 3.
The day before the Prayer Vigil, the weather forecast apparently called for possible rain. Captain Edwards sent an email to Chief Graham, Ocala Police Chaplain Quintana and Ms. Haynes, copying an Ocala Police Department officer, asking whether they should secure an indoor location as an alternative. Doc. 54-28 (marked Ex. 12) at 2. Quintana's suggestion was that the Vigil should take place on the Square with or without rain, "[n]othing should stop, hinder or prevent from [sic] fervent prayer," proposing they "[k]eep it to 15-20 minutes of PRAYER only." Id. at 3 (capitalization in original). Captain Edwards sent an email to an Ocala Police Department Major on September 23, saying he would be "mentioning" the Prayer Vigil at an upcoming staff meeting, Doc. 54-29 (marked Ex. 13), and the following day he emailed an Ocala Police Department Captain to say he might not make it to a meeting because he was "working on getting this prayer vigil set up." Doc. 54-30 (marked Ex. 14).
The Prayer Vigil took place on September 24, 2014 in the Downtown Square in Ocala, a public space where meetings, rallies, assemblies and other public and privately-sponsored events occur. Graham Dec. I (Doc. 52-1) at ¶ 22; see supra note 2. Chief Graham and Mayor Guinn both attended the Prayer Vigil, but neither of them addressed the crowd. Graham Inter. Resp. (Doc. 54-6) at # 1; Guinn Inter. Resp. (Doc. 54-7) at # 15. Approximately ten people were on the stage during the Prayer Vigil, including four uniformed Ocala Police Chaplains, one off-duty Ocala Police Department employee who was not in uniform, and five faith and/or community leaders. Graham Inter. Resp. (Doc. 54-6) at # 3. Not all of those persons spoke from the stage, but a number who did speak were Ocala Police Department Chaplains. Doc. 54-16; Doc. 54-19 (marked Ex. 3) at Page ID 1386, 1389, 1390. Chief *1271Graham said he did not know in advance what any of the speakers planned to say, but his recollection is that those who did speak either prayed or sang. Graham Dec. I (Doc. 52-1) at ¶ 16; Graham Dec. II (Doc. 68-1) at ¶ 5; Graham Depo. (Doc. 54-10) at Tr. 139-40. He did not hear any non-Christians speak at the Prayer Vigil and the crowd appeared to be predominately Christian. Graham Depo. (Doc. 54-10) at Tr. 96-99, 144-45. Mayor Guinn knew most of the Ocala Police Department Chaplains by name, but said he had no recollection as to who spoke. Guinn Depo. (Doc. 54-11) at Tr. 27-28.
Mayor Guinn estimated that 500-600 people attended the Prayer Vigil. Id. at Tr. 108. Chief Graham, who said the Vigil lasted for about an hour, also said "[t]here were a lot of people there," "definitely more than 100." Graham Depo. (Doc. 54-10) at Tr. 139, 149.
Plaintiffs Lucinda and Daniel Hale, who live in Marion County, had visited the Downtown Square on a number of previous occasions, such as to visit the farmer's market. L. Hale Depo. (Doc. 54-15) at Tr. 31. The Hales heard about the upcoming Prayer Vigil when someone told them about the Ocala Police Department facebook posting, which they then viewed. D. Hale Depo. (Doc. 54-14) at Tr. 7; L. Hale Depo. (Doc. 54-15 at Tr. 9). The facebook posting discussed the crisis of crime affecting citizens of Ocala and Marion County, and Ms. Hale agreed that crime creates a negative environment for all citizens, but she felt that the message inviting everyone *1272to a Prayer Vigil did not include her or others who do not pray. L. Hale Depo. (Doc. 54-15) at Tr. 17-19. Mr. Hale engaged in email correspondence with the Mayor in advance of the Vigil, expressing regret for the recent crime spree and applauding the Chief for his attempts to curb crime, but explaining that the Vigil invitation violated the Establishment Clause and suggesting that the City promote a different rally encouraging people to come forward with ideas about how to stop crime. D. Hale Dep. (Doc. 54-14) at Tr. 17-18; 53.
The Hales attended the Prayer Vigil and described it as similar to a Christian tent revival. D. Hale Depo. (Doc. 54-14) at Tr. 29, 47-48; L. Hale Depo. (Doc. 54-15) at Tr. 22-23. Ms. Hale stated she is concerned about alleviating crime, which was the purported purpose of the Prayer Vigil, but she felt unable to participate in any part of what actually transpired. L. Hale Inter. Resp. (Doc. 54-3) at # 8. Mr. Hale did not observe any speaker encourage people to come forward with ideas about how to stop crime. D. Hale Depo. (Doc. 54-14) at Tr. 53. Mr. Hale recalled that at least one speaker was introduced from the stage as an Ocala Police Department Chaplain. Id. at Tr. 43-44. He said he observed uniformed police officers participating in the Prayer Vigil by being part of a circle of people praying, bowing heads, and holding hands. Id. at 29-30. Mr. Hale spoke with Chief Graham at the Vigil, and they discussed the possibility of Hale doing some volunteer work with the Ocala Police Department in the future. Id. at Tr. 35, 54. Mr. Hale feels that it is everyone's responsibility to better the community. Id. at Tr. 54.
Plaintiff Art Rojas, who lives and works in Ocala, attended the Prayer Vigil, which he described as being "essentially a Christian revival" that was "not a comfortable place for non-believers" and caused anyone present to feel "some pressure to participate and show approval," lest they be seen as "publicly opposing the police." Rojas Inter. Resp. (Doc. 54-1) at # 14, 15. Rojas said he attended the Vigil to see if there was going to be a violation of the Establishment Clause. Rojas Depo. (Doc. 54-12) at Tr. 31. Rojas wishes for his community to be more inclusive, and hopes that future events involving his government will include all of Ocala's citizens, not only Christians. Rojas Depo. (Doc. 54-12) at Tr. 37. Rojas thought that the Police Department should represent everyone, but by involving itself in the Prayer Vigil it did not represent him. Id. at Tr. 25-26.
Frances Jean Porgal attended the Vigil and, like Mr. Hale, recalled that at least one speaker was introduced from the stage as an Ocala Police Department Chaplain.
The day after the Prayer Vigil, congratulatory emails circulated within the Ocala Police Department, thanking the Chief, Captains, Officers, Chaplains, and Ms. Haynes for their efforts regarding the Prayer Vigil. See Doc. 54-32 (marked Ex. 16). Captain Edwards sent an email to Ms. Haynes, Chaplain Quintana, copying Chief *1273Graham and Officer Williams, thanking everyone for helping and "allow[ing] the PRAYER VIGIL to take place[,]" remarking that "[t]here was opposition but Isaiah 54:17 says 'No weapon that is formed against thee shall prosper; and every tongue that shall rise against thee in judgment thou shalt condemn.' " Id. at 2 (capitalization in original; additional emphasis omitted). Edwards suggested a meeting to discuss the next steps including another possible vigil, and closed with, " 'Romans 8:28 'And we know that all things work together for good to them that love God, to them who are the called according to his purpose.' " Id. at 2 (emphasis omitted). Chaplain Quintana replied to Captain Edwards, saying "God bless you Captain for organizing" the Prayer Vigil, and saying he (Chaplain Quintana) was honored that Captain Edwards invited him. Id. at 4.
Sometime thereafter, Chief Graham told Ms. Porgal about an anti-bullying rally scheduled for the Downtown Square where the Prayer Vigil had occurred. Ms. Porgal and the Hales attended and participated by carrying signs discouraging bullying in schools. D. Hale Depo. (Doc. 54-14) at Tr. 55; L. Hale Depo. (Doc. 54-15) at Tr. 31-32. Chief Graham testified that going forward, he would not permit the Chaplains to participate in public events while wearing their Ocala Police Department uniforms if the event involved leading prayers, not because it was necessarily inappropriate, but to keep from getting sued. Graham Depo. (Doc. 54-10) at Tr. 164-68. Subsequent public prayer events have been held in Ocala, at least one of which was organized and sponsored by a church. Id. at 74; Doc. 54-76 at 5.
Two months after the Prayer Vigil, plaintiffs filed suit under
III. Standard of Review
"A district court must grant summary judgment 'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " Atheists of Fla., Inc. v. City of Lakeland,
*1274IV. Discussion
A. Standing
Chief Graham and the City argue that plaintiffs lack standing to bring this case.
In Rabun County, a group of Georgia residents, motivated by their spiritual beliefs or commitment to the separation of church and state, challenged the placement of a large illuminated cross in Georgia's Black Rock Mountain State Park.
The Court found plaintiffs had standing when it ruled on defendants' motion to dismiss. See Doc. 22, adopting Report and Recommendation, Doc. 14. The factual development *1275of the case since then further supports that determination. The undisputed facts reveal that the Hales are residents of Marion County who have attended events in the Downtown Square in Ocala. They saw the Ocala Police Department facebook page and attended the Prayer Vigil because they wanted to observe, but also because they have interest in being a part of the community and are concerned about crime. They attended the Prayer Vigil but were unable to participate in any of the activity because the speakers only invited the audience to pray and sing. The Hales have more than a mere interest in the matter. They have demonstrated an injury in fact. Similarly, Art Rojas lives and works in the City of Ocala. He saw the Ocala Police Department facebook page and attended the Prayer Vigil. He wants his community to be inclusive of all its residents, not just Christians. Like the Hales, Rojas has more than a mere interest in the matter and has demonstrated injury in fact.
Having demonstrated injury in fact, the causal connection and redressability prongs of standing are easily satisfied here. Plaintiffs' injuries are causally connected to the Prayer Vigil which they contend was sponsored by the City of Ocala and its Chief of Police. If proven, an award of nominal damages for conduct that violated the Establishment Clause would redress their injuries. See, e.g., Amnesty Int'l, USA v. Battle,
Further, none of the prudential considerations which might counsel toward "judicial constraint" are present-plaintiffs's complaint falls within the zone of interests protected by the Establishment Clause, the issue raised here is not abstract such that it is more appropriately addressed by the legislative branch, and plaintiffs are asserting their own interests. See Saladin,
The Seventh Circuit's decision in Freedom From Religion Foundation, Inc. v. Obama,
*1276The City and Chief also argue that plaintiffs would have suffered no injury had they simply ignored the facebook page and opted not to attend the Prayer Vigil. But being forced to choose between avoiding the religious message and being involved members of their community was exactly the Hobson's choice creating plaintiffs' injury. See Rabun County,
B. Establishment Clause
The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. In so stating, "the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." Epperson v. Arkansas,
"[T]he Establishment Clause was intended to afford protection" against "the three main evils" of "sponsorship, financial support, and active involvement of the sovereign in religious activity." Lemon v. Kurtzman,
"The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application."
In Lemon, the Supreme Court enunciated the three part test which is the controlling standard for Establishment Clause jurisprudence: "First, the [government activity] must have a secular ... purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion;" and third, "the [government activity] must not foster an excessive government entanglement with religion."
Lemon's purpose prong is viewed objectively, taking into account "the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act." McCreary, 545 U.S. at 862,
In applying the Lemon test's purpose prong to a case involving prayer in public school, the Eleventh Circuit explained that:
[P]rayer is the quintessential religious practice [which] implies that no secular purpose can be satisfied. The primary effect of prayer is the advancement of ones['] religious beliefs. It acknowledges the existence of a Supreme Being. The involvement of [the defendant school district *1278] in such activity involves the state in advancing the affairs of religion. The Supreme Court and this circuit have indicated that such prayer activities cannot be advanced without the implication that the state is violating the establishment clause.
Jaffree v. Wallace,
In a more recent school prayer case, the Eleventh Circuit reaffirmed the point of Jaffree and Treen, stating that "[b]ecause prayer is 'a primary religious activity in itself,' a teacher or administrator's intent to facilitate or encourage prayer in a public school is per se an unconstitutional intent to further a religious goal." Holloman,
But this is not a school prayer case
The Court next considers whether the "principal or primary effect" of the Prayer Vigil was "one that neither advance[d] nor inhibit[ed] religion." Lemon,
Though held in a public space (Ocala's Downtown Square), the event here-a prayer vigil-can hardly be thought to be anything other than an endorsement of religion. The content of the facebook letter (inviting the community to come join in fervent prayer), the name of the event ("Community Prayer Vigil"), the nature of the speakers' remarks (Christian prayers and songs), the participation from the crowd (responding in religious colloquy with speakers, holding hands in circles, bowing heads), all bespeak the religious effect of the activity, which was to promote prayer. See Holloman,
The last prong of the Lemon test asks whether the government activity "foster[ed] an excessive government entanglement with religion."
Having failed each of Lemon's three prongs, the Prayer Vigil would appear to violate the Establishment Clause. Even the City and Chief Graham agreed at oral argument that a government entity or actor may not organize and hold a prayer vigil without violating the Establishment Clause.
While a more typical Establishment Clause case might focus on whether a statute or government activity has run afoul of the Lemon test, some, like here, hinge on whether the activity at issue belongs to the government at all. In Adler v. Duval County School Board,
In another case raising the question of state sponsorship, Doe v. Village of Crestwood,
Similarly, in Newman v. City of East Point,
From these cases and others, it is apparent that for purposes of the Establishment Clause, whether an activity "belongs to" or is "sponsored by" the government turns on the degree to which a government entity or official initiated,
1. Chief Graham
Chief Graham contends that he had little involvement and no control over the Prayer Vigil.
But plaintiffs point to strong evidence supporting their position that Chief Graham had significant involvement in the Prayer Vigil, from its conception through its conclusion. For starters, the Chief initiated the meeting at the police department at which the plan for the Prayer Vigil was hatched and he pronounced it "a great idea." Graham Depo. (Doc. 54-10) at Tr. 23. The facebook posting which invites the community to come to the Prayer Vigil is written on Ocala Police Department letterhead and is signed by Chief Graham in his capacity as Chief of Police. The letter states in part, "We are facing a crisis in the City of Ocala and Marion County that requires fervent prayer and your presence ... I [Chief Graham] am urging you all to please support a very important 'Community Prayer Vigil.' " Doc. 1, Ex. A. Chief Graham agrees that he read the letter and directed that it be posted on the Department's facebook page. He further agreed that in doing so, he was promoting the Prayer Vigil. The record also shows that Chief Graham sent an email suggesting the date for the Prayer Vigil be moved to accommodate local ministers; he sent multiple emails to citizens in reference to the Prayer Vigil that suggested his involvement, using words such as "we" and "I," and he did not direct these inquirers to contact someone else to complain; nor did he disabuse the Mayor or other supporters in his emails as to whose Prayer Vigil it was. Chief Graham said he did not know what the speakers would say, yet he received an email from Quintana recommending the Vigil consist of "PRAYER only." When the speakers are chaplains and the platform is a prayer vigil, a reasonable observer would understand the content of the program would be prayer.
Chief Graham also permitted Captain Edwards and others to work on the Vigil while on City time. Additionally, although the Ocala Police Department Chaplains are volunteers, they are similar to employees in that they are covered by worker's compensation, have office space at the Police Department, are issued police badges, receive paid uniforms (which they wore to the Prayer Vigil), and are considered members of the Ocala Police Department who are subject to the authority of Chief Graham, who appoints them. When Chief Graham was copied on an email to the Chaplains advising them that the Chief *1284wanted them to attend the Vigil and to wear their uniforms, Chief Graham did not follow up to correct what he now claims was not really his directive. Of the ten people on the stage at the Prayer Vigil, four were uniformed Ocala Police Department Chaplains, and another was an off-duty Ocala Police Department employee who was not in uniform (but who may have announced to the crowd that he was indeed a police officer).
In reaching its decision, the Court relies only upon undisputed material facts-i.e., those disclosed by the contemporaneous documents, such as the emails which show Chief Graham's knowledge and involvement, his deposition testimony, and that of the plaintiffs, to the extent it is undisputed. Defendants' briefs are filled with bold statements such as, "[O]nce the idea of a community vigil was raised ... Chief Graham left the meeting and had no further involvement with the Vigil, except to coordinate the presence of uniformed officers (including himself) at the Vigil to maintain safety and engage citizens, as is usual for public events held downtown[,]" Doc. 52 at 27, and "[t]he only other action attributable to Graham in relation to the Vigil is his expression of support for the event through the Facebook post."
In making this assessment, the Court notes that the facts here are distinguishable from cases upon which Chief Graham relies. For example, in Allen v. Consolidated City of Jacksonville,
Adler is likewise distinguishable in that the Court found there was a "total absence of state involvement in deciding whether there [would] be a graduation message," let alone whether it would be a prayer.
Chief Graham argues that even if he is deemed to have violated plaintiffs' rights under the Establishment Clause, the case against him should not go forward because he is entitled to qualified immunity. "Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Dalrymple v. Reno,
"To even be potentially eligible for summary judgment due to qualified immunity, the official must have been engaged in a 'discretionary function' when he performed the acts of which the plaintiff complains." Holloman,
Thus, the burden shifts to the plaintiffs to demonstrate why qualified immunity should not apply.
The next question is whether that right was "clearly established" at the time, such that the state of the law gave Chief Graham "fair warning" that his involvement in the Prayer Vigil was unconstitutional. Hope v. Pelzer,
2. Mayor Kent Guinn
The evidence reveals that Mayor Guinn had nothing to do with planning the Vigil, promoting it to the community, or participating in it in any official way. He attended the Prayer Vigil as a citizen. Yet, when the Mayor learned about the upcoming Prayer Vigil, he wholeheartedly endorsed it, and continued to do so up to and following the event. This was in the face of many vocal complaints that the Vigil would *1287and did violate the Establishment Clause. To those citizens and others, he declared that he would not stop the Vigil. Moreover, both the Mayor and Chief Graham testified that the Mayor had the authority to tell Chief Graham to take down the facebook page, but Mayor Guinn refused. Nor did he tell the Chief not to permit the police chaplains to participate, which the Mayor also said he had the authority to do. Additionally, the Mayor responded to citizens in a manner that reflected that the Vigil was a government-sponsored event, repeatedly referencing that "we" are holding this Vigil and telling one person that "[t]here is nothing in the constitution to prohibit us from having this Vigil." Doc. 54-44 (marked Ex. 28) (9/22/2014 10:24 a.m. email from Guinn to citizen, copying Graham) (emphasis added). To another who complained about the Chief's apparent violation of the Establishment Clause, the Mayor responded that not only would he not stop it, he intended to praise the Chief for his efforts. Doc. 54-49 (marked Ex. 33) at 3 (9/19/2014 10:55 p.m. email from Guinn to citizen, copying Graham).
Yet there is not enough evidence to show that the Mayor himself had sufficient connection to the Prayer Vigil to hold him liable for it. He was certainly an ardent cheerleader, but a reasonable observer, taking into account the creation, planning, and execution of the Vigil would find the Mayor was not a part of it. The Mayor did, however, have authority to direct the Chief to take down the facebook page and to order that the Chaplains not participate in the Prayer Vigil, but he refused to take these measures. It is true, as plaintiffs contend, that the failure to intervene to stop a constitutional violation can itself create liability. But the circumstances in which that doctrine arises are generally excessive force cases. See Jones v. Cannon,
Even assuming the Mayor committed an Establishment Clause violation by failing to intervene to stop the Prayer Vigil, his duty to do so was not clearly established.
3. The City of Ocala
The City contends it is due to be granted summary judgment because *1288there is no basis to find municipal liability. Although local governments cannot be found liable on a theory of respondeat superior, in Monell v. Department of Social Services,
"Whether an official has final policymaking authority" that may subject the government to liability "is a question of state law," Church v. City of Huntsville,
While the City paints this as a fleeting incident that could not possibly be deemed official policy so as to subject it to liability, in fact, the events here took place over the course of eight days, beginning with Chief Graham's calling the meeting and culminating with the Prayer Vigil. During that time and as further described above, both Chief Graham and Mayor Guinn took many actions in their official roles in very public ways to initiate, organize, facilitate, promote, encourage, endorse, and otherwise *1289sponsor the Prayer Vigil (all in the face of vocal opposition which pointed out the violation), easily subjecting the City of Ocala to liability for violating the Establishment Clause.
D. Plaintiffs' claim for punitive damages .
Although not pled in their complaint, plaintiffs argue in their summary judgment motion that they are entitled to seek punitive damages. See Doc. 54 at 33-35. Chief Graham objects.
The cases upon which plaintiffs rely for permitting a punitive damages claim to go forward without a specific request are distinguishable. In Scutieri v. Paige,
Here, in contrast with both of those cases, the only allegation in plaintiffs' complaint that could even possibly support a punitive damages request is the single sentence, "Each of the individual Defendants, in their individual capacities, intentionally or recklessly violated Plaintiffs' well-settled constitutional rights under the Establishment Clause." Complaint (Doc. 1) at ¶ 47. The paragraphs of allegations detailing defendants' actual conduct do not make hint of any particular egregiousness. And plaintiffs' request for relief was specific, asking for declaratory judgment and a permanent injunction (both described in very detailed terms), nominal damages, attorneys' fees, expenses and costs, and "such other relief as this Court deems just and proper." Id. at ¶¶ 50-51. The single conclusory statement referencing an intentional and reckless violation is not enough to put Chief Graham on notice and the Court *1290finds it is insufficient to support raising a punitive damages claim at this late stage.
V. Conclusion
The Court is granting the Mayor's motion for summary judgment and denying plaintiffs' cross-motion. The Court is denying Chief Graham and the City's motion for summary judgment and granting plaintiffs' cross-motion as to the Chief and the City. In so doing, the Court considered whether it should instead deny plaintiffs' motion for summary judgment as to the Chief and the City and conduct a non-jury trial (no remaining party requested a jury trial). However, the Court determined that holding a non-jury trial was not required: based on the undisputed facts, plaintiffs have demonstrated as a matter of law that the Chief and the City of Ocala violated the Establishment Clause.
In sum, under the Establishment Clause of the First Amendment to the United States Constitution, the government cannot initiate, organize, sponsor, or conduct a community prayer vigil. That is what happened here. Yet, the same event in private hands would be protected by the First Amendment. See Bd. of Ed. of Westside Comm. Schs. v. Mergens,
Accordingly, it is hereby
ORDERED :
1. Defendant Mayor Kent Guinn's Motion for Summary Judgment (Doc. 53) is GRANTED .
2. The City of Ocala and Chief Greg Graham's Motion for Summary Judgment (Doc. 52) is DENIED .
3. Plaintiffs' Motion for Summary Judgment (Doc. 54) is DENIED as to their claim against Mayor Kent Guinn and is GRANTED as to their claims against the City of Ocala and Chief Greg Graham.
4. The Court will award each plaintiff one dollar ($1.00) in nominal damages from each of the two liable defendants (for a total nominal damages award of six dollars ($6.00) ), which sums will be included in the Court's final judgment.
5. As the prevailing parties, the Court will also be entering an award of attorneys' fees and costs in plaintiffs' favor under
6. The Clerk is directed to withhold entry of judgment as to any party until the Court has resolved plaintiffs' request for attorneys' fees and costs.
DONE AND ORDERED at Jacksonville, Florida this 24th day of May, 2018.
"As used herein, "Dec." is a citation to a declaration (Graham prepared two declarations, denoted here as "Dec. I" and "Dec. II"), "Depo." is a citation to a deposition, "Tr." is a citation to a page in a deposition transcript (using the Page ID from the CM/ECF header; some of the transcripts are missing pages so the court reporter's page number and the CM/ECF header page are not always aligned); "Aff." is a citation to an affidavit; "Inter. Resp." is a citation to an Interrogatory Response.
On September 18 (the day after the meeting), Chief Graham sent an email to Edwards and Quintana (but not Haynes) saying that due to feedback from ministers that Wednesday was not the best night for the Vigil, "[w]e are going to have the vigil on Thursday night instead of Wednesday." Doc. 54-21 (marked Ex. 5) (9/18/2014 email from Graham to Edwards and Quintana). But by September 19, the Police Department was preparing for the Vigil to occur on Wednesday, September 24. See Doc. 54-24 (marked Ex. 8) (9/19/2014 email from Ocala Police Department employee announcing the Prayer Vigil for September 24). Although Graham and Quintana signed declarations stating that the Prayer Vigil occurred on September 25 (see Graham Dec. I (Doc. 52-1) at ¶ 22; Quintana Dec. (Doc. 52-3) at ¶ 9), it appears they were simply mistaken. Contemporaneous news stories, emails, and social media postings in the record appear to confirm the Prayer Vigil took place on Wednesday, September 24, 2014, as originally scheduled. See, e.g., Doc. 54-19 (marked Ex. 3) at Page ID 1389 (9/24/2014 social media posting with photos of the Vigil); Doc. 54-72 (marked Ex. 56) at Page ID 1613, 1617 (9/24/2014 emails from reporters to the Ocala Police Department referencing "tonight's" prayer vigil); Doc. 54-73 at Page ID 1624 (9/24/2014 9:08 p.m. story on Ocala.com about that evening's Prayer Vigil).
Plaintiffs claim the flyer was distributed to the public by an Ocala police officer but the exhibit they cite in support (Exhibit 6-C) is not in the record. See Doc. 54 at 5.
At his deposition, Chief Graham, who appeared on his own behalf and as the City's 30(b)(6) representative, testified that he did not recall directing Quintana to have the Chaplains attend and to do so in uniform and thought it more likely that he simply agreed to Quintana's recommendation about that. Graham Depo. (Doc. 54-10) at Tr. 13, 37-38. The City's Interrogatory Responses say that the Ocala Police Department did not ask the Ocala Police Chaplains to have any involvement in the Vigil but they did so of their own initiative. City Inter. Resp. (Doc. 54-5) at # 8.
In his declaration, Chaplain Quintana states that Chaplains do not wear "police badges," Doc. 52-3 at ¶ 9, but the department directive and section manual both state that Chaplains are issued badges. See Doc. 52-6 at 2, Doc. 54-74 at 23, 36. In some of the photos from the Prayer Vigil, some of the Police Chaplains appear to be wearing badges. See Doc. 54-19 (marked Ex. 3) at Page ID 1386, 1389, 1390, 1394, 1396. According to the City's Interrogatory Responses, the Chaplains' badges identify the wearer as a Chaplain (as opposed to an officer), but that is not evident from the photos. See City's Inter. Resp. (Doc. 54-5) at # 7.
In a later declaration, Chief Graham seems to be rejecting a portion of this deposition testimony, saying:
As I previously testified, I do not consider uniformed [Ocala Police Department] chaplains proselytizing to the general public to be part of their official departmental function. Nor is it part of chaplains' departmental function to lead general community religious events or activities, such as the Community Prayer Vigil at issue in this case, while in uniform.
Doc. Graham Dec. II (68-1) at ¶ 6. To the extent this second statement contradicts, without explanation, Graham's clear answers to unambiguous questions at his deposition, the Court rejects it under the sham affidavit doctrine. See Van T. Junkins and Assoc., Inc. v. U.S. Industs., Inc.,
Mayor Guinn could not recall how he first heard about the Prayer Vigil, but he thought he saw something about it at his church. Guinn Depo. (Doc. 54-11) at Tr. 71-72.
Even after the Vigil, the Mayor continued to applaud the effort, appearing in media outlets to discuss this lawsuit and the recent Vigil. See Doc. 61-1 (marked Ex. 64) (Fox News Insider article, "It's Happening to Me in My Community": Atheists Sue Mayor Over Prayer Vigil, Nov. 29, 2014).
And at his June 2016 deposition the Mayor maintained his position, as reflected in the following questions:
Q: Can the police chief state, on [Ocala Police Department] letterhead, that people should believe in God?
A: Yes.
Guinn Depo. (Doc. 54-11) at Tr. 88.
Q: [A]s far as you're concerned, if the police chief wants to put out something on letterhead saying that you should believe in God or that you should believe in Jesus, that's fine?
A: He can do that.
Q: So as far as you're concerned, they [the Ocala Police Department] could have another vigil such as that one next week if they wanted to?
A: Sure.
Q: And the chief could post another letter saying that there is something that requires fervent prayer in the city?
A: Yes.
Plaintiffs suggest that if this was not a city-sponsored event, the organizer would have been required to seek a permit (which was not issued here), but the record is murky as to the permit requirements. See Graham Depo. (Doc. 54-10) at Tr. 70-74.
For example, one of the transcripts includes these remarks delivered by a uniformed Ocala Police Department Chaplain: "Father we thank you for tonight, for the gathering of your children ... Lord you called us together by your spirit, your spirit of love, and tonight Lord that love can conquer anything-it can conquer evil, it can conquer enemies ... Your angels are on assignment [from] the kingdom of god. And your kingdom has come. And your kingdom is ruling even now. Behind the scenes amen there are children amen don't feel safe in their communities any more. Where bullying amen is on every corner amen. Where people amen are being threatened amen hallelujah from all kinds of things and all kinds of dangers. Lord we are not afraid, we are not afraid ... " Doc. 54-16 at Ex. A.
Another uniformed Ocala Police Department Chaplain included these statements in his remarks (which were interspersed with responses of "Amen" from the crowd): "God healed America.... But in order for god to heal America, there must be an intrinsic change from the inside, with each and every one of us, where we go out and watch other people, and help the children that are lost.... God bless America, god heal America." Doc. 54-16 at Ex. B.
Ms. Porgal, who was a resident of Marion County, was a plaintiff in this case until she passed away in January 2017. See Doc. 69. She was subsequently terminated as a party. See Doc. 72. Though no longer a plaintiff, Ms. Porgal's uncontested sworn observations recounted here are relevant evidence about material facts in this case which the Court may consider as part of the summary judgment record.
Some additional parties and claims (including a claim for injunctive relief) were previously dismissed. See Doc. 22.
To the extent the City and Chief Graham argued in their papers and at the hearing that plaintiffs have admitted defendants' statement of undisputed facts by failing to specifically refute each and every statement, the Court disagrees. Plaintiffs point to disputed facts throughout their briefs (but argue the facts in dispute are immaterial) and also note where they believe defendants have misstated the evidence.
Mayor Guinn does not challenge plaintiffs' standing.
Moreover, the Seventh Circuit's Freedom From Religion decision reads Supreme Court precedent somewhat differently than the Eleventh Circuit, which is, of course, binding on this Court. See Freedom From Religion,
The Court likewise rejects the City and Chief Graham's position stated in oral argument that Newdow v. Bush,
Nor is it a legislative prayer case. See Order (Doc. 22) (adopting Report and Recommendation (Doc. 14) (noting that this is not a case about legislative prayer, which is an exception to the Establishment Clause analysis, citing Marsh v. Chambers,
Throughout this analysis, the Court views the conduct as a continuum of action, from the meeting at which the Prayer Vigil was first suggested to the Prayer Vigil itself. To the extent the City and Chief Graham have parsed the evidence such that the facebook post and the Prayer Vigil are analyzed separately and each in a vacuum, the Court does not find support for that approach in the allegations of the complaint, or in the law.
The only song Chief Graham recalled hearing at the Prayer Vigil was "God Bless America." Graham Depo. (Doc. 54-10) at Tr. 140. Ms. Porgal recalled that the words were changed to "God Heal America." Porgal Depo. (Doc. 54-13) at Tr. 35.
For his part, the Mayor does not admit that the government couldn't host a prayer vigil if it chose to do so, but he has confused the law that applies to legislative prayer with that applicable in most other Establishment Clause challenges, including this one. See Doc. 53 (Mayor's brief). The Mayor maintained this erroneous position at oral argument.
Indeed, as Chief Graham suggested in his emails to some of the plaintiffs, the City would abridge the First Amendment rights of its citizens if it denied them use of the public Downtown Square for prayer. See Fowler v. Rhode Island,
The court denied plaintiffs' request to enjoin the mayor's prayer breakfast from taking place at all, and the request to enjoin the mayor or city officials from attending, finding they had a right as citizens to attend and the defendants had provided assurance the event would not use city facilities, funding, or resources, and would not have the appearance of being endorsed by the city. Newman,
Village of Crestwood,
Newman,
Holloman,
Newman,
Newman,
Newman,
Holloman,
Holloman,
Adler,
Adler,
Holloman,
Newman,
Holloman,
Adler,
This list of factors is not intended to be exclusive. See, e.g., Hewett,
Chief Graham contends that plaintiff Rojas "understood and has conceded" that Chief Graham had no control over whether to cancel the Vigil, but that seems to be a misreading of Rojas' deposition testimony. See Brief (Doc. 52) at 7; Rojas Depo. (Doc. 54-12) at Tr. 25-26, 28-29 (testifying that if the Chief could not cancel the Vigil, he could at least stop the police chaplains from being involved). Moreover, the Establishment Clause focuses on the constitutionality of the government's action from the perspective of a reasonable observer (who is not necessarily the plaintiff). Additionally, there is no such concern with the Hales, the two other plaintiffs here. See, e.g., D. Hale Depo. (Doc. 54-14) at Tr. 19-22; Doc. 54-42 (marked Ex. 26) (Chief Graham's email correspondence with D. Hale); L. Hale Depo. (Doc. 54-15) at Tr. 25, 28-31, 49-50; Doc. 54-41 (marked Ex. 25) (Chief Graham's email correspondence with L. Hale). The City and Chief Graham tried to suggest that Ms. Hale knew Chief Graham could not cancel the Vigil because he told Ms. Porgal that (see Brief, Doc. 52 at 4) and Ms. Hale testified that Ms. Porgal "probably at least gave me the gist" of Chief Graham's communications with Ms. Porgal (Doc. 54-15 at Tr. 13). But this is hardly enough to import Ms. Porgal's knowledge of any of Chief Graham's particular statements to Ms. Hale. Moreover, when responding to the direct question of whether she believed they (the Chief and Mayor) had the power to cancel the Vigil, Ms. Hale testified: "I believe that they did. I believe they still do, should it occur again. And I believe that if it had been otherwise, they would have put that in writing. They would have taken [the] letter down immediately and have said, sorry, folks, that was a mistake; this is being held by these [other] people. Contact them for information."
See Doc. 54-31 (marked Ex. 15), which apparently is a draft of Captain Edwards' remarks (sent to himself), in which he greets the crowd, explaining he is there in many capacities, including as a police officer and a child of God, and, like the audience, is calling on God through prayer, hoping to end senseless shooting and violence in the city.
Some authorities refer to the exercise of "discretionary authority" as opposed to "discretionary function," but there does not appear to be any material difference and the Court will use them interchangeably. See, e.g., Crocker v. Beatty,
By so publicly failing to intervene, the Mayor did, in a sense, ratify the Chief's actions. The Court has considered whether this alone might subject him to liability but again finds a lack of authority that would warn the Mayor of this possibility. However, as noted below, the Mayor's ratification can certainly be considered in assessing the City's liability.
This ruling is based on an evidentiary record of undisputed facts (drawing all reasonable inferences in plaintiffs' favor), which explains why it differs from the Court's ruling on the same question presented by the Mayor's motion to dismiss, which considered only the allegations of plaintiffs' complaint. See Docs. 1, 14, 22.
Even though the Mayor is protected by qualified immunity and he therefore cannot be held liable in his individual capacity, his conduct as Mayor (as well as Chief Graham's) is relevant in determining the City's liability.
Punitive damages are not available against a municipality under
Plaintiffs did not move for leave to amend their complaint, and the deadline to seek such leave passed five months before plaintiffs first mentioned punitive damages in their summary judgment motion. Any request for leave to amend to add a punitive damages claim at this point would have to be supported by a showing of good cause under Federal Rule of Civil Procedure 16(b)(4). Plaintiffs have not even suggested what that might be and, as the facts which plaintiffs now argue would support such a claim have largely been known since before they filed suit, it is unlikely they could show good cause for the untimely request. See Factory Direct Tires Inc. v. Cooper Tire & Rubber Co., No. 3:11-cv-255-RV/EMT,
Although he has also prevailed in this litigation, defendant Mayor Kent Guinn is not entitled to recover his attorneys' fees and costs because a prevailing defendant may only recover fees in a civil rights case under