UNITED FOOD & COMMERCIAL WORKERS LOCAL 1099; Judy Bishop; Doug Burgstaller; Jeff Crider; Ray Evans, III; Bonnie France; Chad Helmlinger; Leah Helmlinger; Tonya McCoy; Bryon O‘Neal; Jeff Osting; Keith Robinson; Jessica Sagraves, Plaintiffs-Appellants, v. CITY OF SIDNEY; Michael Puckett; Steven B. Wearly; Sidney City Schools; Steve Miller; Kevin O‘Leary, Defendants-Appellees,
No. 02-3415.
United States Court of Appeals, Sixth Circuit.
March 24, 2004.
364 F.3d 738
The police seized 34 kilograms of cocaine and 2 kilograms of heroin on a single occasion from one of Campbell‘s coconspirators, to say nothing of the 150 kilograms or more of cocaine and heroin proven to be involved in the overall conspiracy. “If this jury was going to convict [Campbell] at all—which it plainly did—there is simply no way on this record that it could have failed to find that he was conspiring to distribute” one kilogram or more of heroin and five kilograms or more of cocaine. United States v. Nance, 236 F.3d 820, 826 (7th Cir. 2000). Accordingly, we affirm the district court‘s denial of relief to Campbell on his Apprendi claim.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
Edward J. Dowd (briefed), Boyd W. Gentry (argued), Surdyk, Dowd & Turner, Dayton, OH, Nicholas E. Subashi (briefed), Brian L. Wildermuth, (argued and briefed), Law Offices of Nicholas E. Subashi, Dayton, OH, Michael Fay Boller (briefed), Asst. Shelby County Prosecutor, Sidney, OH, for Defendants-Appellees.
Before: KENNEDY, GILMAN, and GIBBONS, Circuit Judges.
AMENDED OPINION
GIBBONS, Circuit Judge.
Plaintiffs-appellants, United Food and Commercial Workers Local 1099 (“Local 1099“) and twelve of its members, brought suit under
Defendants-appellees Sidney City Schools, Superintendent Steve Miller, and Shelby County Sheriff Kevin O‘Leary moved to dismiss. The City of Sidney, City Manager Michael Puckett, and Chief of Police Steven Wearly moved for judgment on the pleadings. The district court concluded that the appellants had not suffered a deprivation of their First Amendment rights when they were denied permission to solicit signatures at each of the six polling places and granted the appellees’ motions. We agree with the district court that appellants’ First Amendment rights were not violated when they were prohibited from soliciting signatures in those areas that were (a) within the campaign-free zone, regardless of whether the campaign-free zone encompassed a traditional public forum such as a sidewalk, or (b) on school or private property, but outside of the campaign-free zone. However, plaintiffs have alleged facts supporting a claim that they were deprived of their First Amendment rights when they were threatened with arrest after they moved to the public sidewalk outside of the campaign-free zone at the Y.M.C.A., and to
I.
A. Factual Background
On February 28, 2000, the City Council of Sidney, Ohio, enacted Ordinance No. A-2203, which “effected the rezoning of Lots 5918 and 6180 from an I-2 Heavy Industrial District to a B-2 Community Business District.” The process of rezoning the property was undertaken for the purpose of allowing expansion of a Wal-Mart store at that location. On March 2, 2000, appellants submitted a certified copy of Ordinance No. A-2203 and a pre-circulation referendum petition to the City of Sidney. Pursuant to the city‘s charter, referendum petitions must be filed within two weeks following the passage of the ordinance called into question. Given the short amount of time in which they had to collect signatures after Ordinance No. A-2203 was enacted on February 28, appellants assert that it was “particularly important to gather signatures on March 7, 2000,” the day of the primary election in Ohio. On that date, appellants gathered to solicit signatures for the petition from voters outside six polling places in Sidney. These locations included four public elementary schools (Parkwood, Emerson, Whittier, and Lowell), the Sidney-Shelby Y.M.C.A. (“Y.M.C.A.“), and Trinity Church of the Brethren (“Trinity“). Appellants Judy Bishop, Ray Evans, and Jessica Sagraves were at Parkwood; Bryon O‘Neal was at Emerson; Keith Robinson and Tonya McCoy were at Whittier; Chad and Leah Helmlinger were at Lowell; Jeff Crider and Jeff Osting were at the Y.M.C.A.; and Doug Burgstaller and Bonnie France were at Trinity.
A set of United States flags was placed outside the entrance of each polling place pursuant to
Appellants have alleged that at each of the polling places, they were positioned outside or beyond the area marked by the flags. They further allege that they solicited signatures at each location in “a peaceful and non-disruptive manner,” and that they “neither interfered with school operations nor hindered public access [to any of the polling places at issue.]”
The locations at which appellants were attempting to solicit signatures and the manner in which they were denied access varied at each polling place. At Parkwood, appellants Bishop, Evans, and Sagraves positioned themselves on school property, but beyond the flag that had been placed outside the entrance to the polling place. They solicited signatures at this location for a short period of time, until the school principal informed them that they would have to relocate to a position beyond a second flag that had been placed “on the side of the school parking lot opposite the polling place.” According
At Emerson, O‘Neal and Tambra Young had been soliciting signatures for approximately ninety minutes before the school principal ordered them to leave the property and threatened to call the police if they did not comply. Appellants allege that at some time during the morning of March 7, Ralph Bauer, a member of the Sidney Board of Elections, called the Sidney Police Department and requested that they send cruisers to Emerson, Lowell, the Y.M.C.A., and Trinity. Bauer purportedly informed police that the appellants were soliciting signatures at each of these locations in areas that were within 100 feet of the polling places. An officer from the Sidney Police Department arrived at Emerson and told O‘Neal and Young that his supervisor was on the way and that he would decide whether they could remain on the property. Shortly thereafter, Sidney Police Captain Kimpel arrived and told the appellants that if they refused to leave school property they would be trespassing. When O‘Neal asked Kimpel how they could be trespassing on public property, Kimpel replied, “I‘m not going to argue about this. This is your last warning.” According to appellants, “[r]ather than risk receiving a citation or being placed under arrest,” they complied with Kimpel‘s demand and left the property.
At Whittier, appellants Robinson and McCoy positioned themselves outside the side entrance to the polling place. Although flags had been placed 100 feet from the front entrance to the polling site, there were no flags outside the side entrance. Robinson and McCoy collected signatures for two hours, until they were approached and ordered to leave by the assistant superintendent and a polling judge. The assistant superintendent told them that they would have to leave school property because of “safety issues” and that she had already called the police. At this point, Robinson and McCoy left school property and moved to a public sidewalk. Because most of the voters were parking in the school‘s parking lot, appellants allege that they were unable to solicit signatures effectively from that location.
When the Helmlingers arrived at Lowell, they asked polling officials to identify the locations where they would be permitted to gather signatures. The officials replied that they did not know and called the Board of Elections. According to appellants, one of the officials grabbed the petition out of Leah Helmlinger‘s hands and said, “Let me take a look at that. So you‘re against the Wal-Mart?” After one official told them that they could solicit signatures at any point beyond the flags, the Helmlingers positioned themselves “on the public sidewalk, beyond the two flags.” Appellants allege that shortly after Bauer‘s phone call to the Sidney Police Department, an officer arrived at Lowell and told the Helmlingers that school officials had called to complain. The officer told the Helmlingers that the flags had not been placed far enough from the entrance to the polling place at Lowell and that they would have to stay more than 100 feet from that entrance. “Rather than risk receiving a citation or being [placed under arrest],” the Helmlingers complied with the officer‘s request and left the property.
At Trinity, Burgstaller and France collected signatures for one hour before an officer with the Sidney Police Department arrived, again allegedly shortly after a phone call from Bauer. While the officer was speaking with Burgstaller and France, a polling judge came out of the church and told them that they would be permitted to collect signatures as long as they remained beyond a set of flags that had been placed 100 feet from the polling entrance. The officer disagreed, and told the appellants that it was irrelevant whether they were outside of the 100-foot boundary because the church was private property, and the church wanted them to leave. Rather than “risk arrest for trespassing,” Burgstaller and France complied with the officer‘s demand and left church property.
Appellants allege that in response to their petition efforts, the Mayor of Sidney instructed Puckett to draft a counter-petition to facilitate the removal of signatures from their referendum petition. On March 23, 2000, Puckett presented the Board of Elections with the counter-petition and a list of nineteen individuals who purportedly had asked the city to have their names removed from the referendum petition. Appellants alleged that the counter-petition failed to comply with Ohio law, and the Board of Elections referred the issue to the Ohio Secretary of State. On April 17, 2000, the Board of Elections informed the City of Sidney that the counter-petition was invalid, and that there were enough valid signatures on the referendum petition to place the referendum on the November 2000 ballot.
The referendum never took place. On April 3, 2000, the Sidney City Council held a special meeting and adopted Ordinance No. A-2207, which repealed Ordinance No. A-2203, rendering appellants’ referendum petition on that ordinance moot. Shortly after Ordinance No. A-2207 was enacted, the City Council adopted Ordinance No. A-2208, which effected the same rezoning of lots 5918 and 6180 as Ordinance No. A-2203. Both Ordinance Nos. A-2207 and A-2208 contained emergency clauses that caused them to go into effect immediately.
B. Procedural History
On June 13, 2000, appellants filed a complaint in the United States District Court for the Southern District of Ohio asserting claims under
The Sidney City Schools and Miller moved to dismiss. O‘Leary filed a separate motion to dismiss the claims against him in his official capacity, and the City of Sidney, Puckett, and Wearly filed a motion for judgment on the pleadings. The district court granted these motions on March 11, 2002. The court concluded that the presence of polling sites on the properties at issue did not transform the areas surrounding those polling sites into traditional public forums. The court also found that
II.
This court reviews a district court‘s decision to dismiss a complaint pursuant to
The standard of review applicable to a motion for judgment on the pleadings under
A. Appellants’ § 1983 Claims
In order to state a cause of action under
Assuming that the solicitation of signatures for a referendum petition is a protected form of speech under the First Amendment, the mere fact that a certain category of speech is worthy of constitutional protection does not mean that it is “equally permissible in all places and at all times.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). The government is not required to grant access to all who wish to exercise their right to free speech on every type of government property “without regard to the nature of the property or to the disruption that might be caused by the speaker‘s activities.” Id. at 799-800, 105 S. Ct. 3439. Rather, the existence of a right of access to government property and the extent to which such access may be limited by the government depend on the character of the property at issue. Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 44, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983).
The Supreme Court has adopted a forum analysis “as a means of determining when the government‘s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes.” Cornelius, 473 U.S. at 800, 105 S. Ct. 3439. The Court has identified three types of forums: the traditional public forum, the designated public forum, and the nonpublic forum. Id. at 802, 105 S. Ct. 3439. Traditional public forums are those places “which by long tradition or by government fiat have been devoted to assembly and debate.” Perry, 460 U.S. at 45, 103 S. Ct. 948. Government may also create a public forum by its designation of “a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Cornelius, 473 U.S. at 802, 105 S. Ct. 3439. In traditional and designated public forums, content-based restrictions on speech are prohibited unless necessary to serve compelling state interests and narrowly tailored to achieve those interests. Id. By contrast, restrictions on speech in nonpublic forums are permissible so long as they are viewpoint neutral and reasonable in light of the purpose served by the forum. Id. at 49, 103 S. Ct. 948.
To determine the extent to which the government may limit access to its property, then, we must first identify the relevant forum to which the appellants sought access, and next consider whether the relevant forum is public or nonpublic, because the government‘s ability to place restrictions on speech varies with the type of forum involved. Cornelius, 473 U.S. at 797, 105 S. Ct. 3439. In this case, appel-
1. The Public Sidewalk Within 100 Feet of a Polling Place
Appellants allege that at Lowell, the Helmlingers tried to solicit signatures from a position “on the public sidewalk.” They argue that appellees’ conduct prohibiting them from soliciting signatures at this location constituted an impermissible restriction on their speech in a traditional public forum. Traditional public forums are those places which “by long tradition or by government fiat have been devoted to assembly and debate.” Perry, 460 U.S. at 45, 103 S. Ct. 948. While it is true that public sidewalks are generally considered traditional public forums, see Frisby v. Schultz, 487 U.S. 474, 480-81, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), speakers may nevertheless be excluded from a traditional public forum on the basis of the content of their speech as long as the exclusion is necessary to serve a compelling state interest and narrowly tailored to achieve that interest.
Appellants’ complaint in this case makes clear that the Helmlingers were deterred from soliciting signatures on the public sidewalk in front of Lowell because the sidewalk was within the 100-foot campaign-free zone established by
Thus, a state may require persons soliciting signatures to stand 100 feet from the entrances to polling places without running afoul of the Constitution. Id. at 211, 112 S. Ct. 1846. The Helmlingers therefore were not deprived of their First Amendment rights when they were ordered to move from the public sidewalk to a position beyond 100 feet from the polling place. In keeping with Burson, Ohio may prevent persons from soliciting signatures within 100 feet of polling places, even in areas that include traditional public forums such as sidewalks.
2. The Parking Lots and Walkways Leading to the Polling Place
At Parkwood, Emerson, Whittier, Trinity, and the Y.M.C.A., appellants set up to gather signatures at various locations on school and private property that were outside the campaign-free zone established by
In reaching this conclusion, the district court relied heavily on the Eighth Circuit‘s decision in Embry v. Lewis, 215 F.3d 884 (8th Cir. 2000). In Embry, the plaintiffs attempted to gather signatures for a referendum petition outside a school building that had been designated as a polling place. Id. at 886. They set up a table “on the grass of the school‘s west property,” near, but not upon the public sidewalk. Id. One of the plaintiffs refused to leave the property when asked by the school‘s principal, and she was arrested. Id. at 886-87. In a subsequent action brought under § 1983, the plaintiffs argued that Missouri had designated the school property, and in particular the limited area in which they were located, “as a limited public forum for the purpose of voting and electioneering activities on that particular day.” Id. at 887. The Eighth Circuit held that
[o]nly a portion of the school property was a designated public forum . . . for the limited purpose of voting. . . . Specifically, this area included the parking lot, the walkway leading to the west entrance, the hallway inside the school leading to the voting booths, and the area containing the voting booths. All other areas of school property, however, remained a nonpublic forum.
Id. at 888. The plaintiffs in Embry were not located on those portions of school property that had been appropriated for election purposes; they were on the grassy area located next to the sidewalk. Id. at 888-89. The court concluded that this area remained a nonpublic forum on election day, and that the decision to exclude the plaintiffs from this portion of school property was a reasonable and viewpoint
Appellants note that, unlike the plaintiffs in Embry, they attempted to solicit signatures from the parking lots and walkways leading to the polling places—precisely those areas that the Eighth Circuit concluded had been designated as public forums for the limited purpose of voting on election day. They argue that if these areas were in fact designated as public forums, the state could not open them up for the limited purpose of voting and at the same time restrict similar types of expressive activities that were consistent with the principal function of the forum. Thus, we must decide whether the parking lot and walkways leading to polling places are “designated public forums for the limited purpose of voting,” and whether the action of appellees in restricting the appellants’ ability to solicit signatures in these areas was permissible.
As we have already noted, the government creates a designated public forum where it opens up its property for use by the public as a place for expressive activity. Perry, 460 U.S. at 45, 103 S. Ct. 948. The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening up a nontraditional forum for public discourse. Cornelius, 473 U.S. at 802, 105 S. Ct. 3439. In determining whether the government has intended to open up its property for use as a designated public forum, the Supreme Court has said that we must look to the policy and practice of the government, as well as to the nature of the property and its compatibility with expressive activity. Id.
There is no evidence in the record in this case that indicates that Ohio intended to open up nontraditional forums such as schools and privately-owned buildings for public discourse merely by utilizing portions of them as polling places on elec-
Although the issue was not squarely before the court in Embry because the plaintiffs in that case were on the grassy area located next to the sidewalk, the Eighth Circuit described the parking lot and walkways leading to the polling places as “designated public forums for the limited purpose of voting.” We respectfully disagree. The forum at issue here is neither a traditional public forum nor a government-designated one. By opening up portions of school and private property for use as polling places on election day, Ohio has not opened up a nontraditional forum for public discourse. In fact, there is no evidence in the record of discourse of any sort. There is no evidence of expressive activity occurring anywhere on the properties involved, other than “each voter‘s communication of his own elective choice[,] and this
When the district court, following the decision in Embry, described the parking lots and walkways leading to the polling places as “limited designated public forums,” it may have had in mind the “limited public forum” described in Good News Club v. Milford, 533 U.S. 98, 106, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001). In Good News, the Supreme Court employed the term “limited public forum” to refer to a forum that the state had reserved “for certain groups or for the discussion of certain topics.” Id. In such forums, government restrictions on speech must be reasonable and viewpoint neutral, the same standards that apply to restrictions on speech in nonpublic forums. Id. Our circuit and others have noted the confusion surrounding the use of the terms “designated public forum” and “limited public forum.” See, e.g., Goulart v. Meadows, 345 F.3d 239, 249 (4th Cir. 2003); DeBoer v. Vill. of Oak Park, 267 F.3d 558, 567 (7th Cir. 2001) (“[T]he use of this terminology . . . has introduced some analytical ambiguity because the [Supreme] Court previously had employed the term ‘limited public forum’ as a subcategory of the designated public forum, subject to the strict scrutiny governing restrictions on designated public forums“); Putnam Pit v. City of Cookeville, 221 F.3d 834, 842 n. 3 (6th Cir. 2000).3 We do not need to delve deeply into the nuances of designated versus limited public forums in this case, however, because these types of forums are characterized by discourse, and discourse is what is absent here. That some expressive activity occurred within the context of the forum created “does not imply that the forum thereby [became] a public forum for First Amendment purposes.” Cornelius, 473 U.S. at 805, 105 S. Ct. 3439. In the absence of evidence of an intent on the part of the government to open these nontraditional forums for public discourse, limited or otherwise, we conclude that the parking lots and walkways leading to the polling places are nonpublic forums, with no different status than the remaining areas on school and private property.
Having concluded that the parking lots and walkways leading to the polling places are nonpublic forums, we must next consider whether the restriction on soliciting signatures was reasonable and viewpoint neutral. The reasonableness of the government‘s restriction on access to a nonpublic forum must be assessed in light of the purpose of the forum and all of the surrounding circumstances. Cornelius, 473 U.S. at 810, 105 S. Ct. 3439. According to appellants’ complaint, school officials asked them to leave the premises because they were concerned about “safety issues.” At the Y.M.C.A. and Trinity, police officers were responding to requests from the owners of those properties when they asked
3. The Public Sidewalk Beyond 100 Feet From the Polling Place
In a footnote in its opinion dismissing the claims against the Sidney City Schools and Miller, the district court stat-
“[S]peech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.” Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 377, 117 S. Ct. 855, 137 L. Ed. 2d 1 (1997). As we have already noted, in a traditional public forum, content-based restrictions on speech must be necessary to serve compelling state interests and narrowly tailored to achieve those interests. Perry, 460 U.S. at 45, 103 S. Ct. 948. The state may also enforce regulations of the time, place, and manner of expression, provided the regulations (1) are content-neutral, (2) are narrowly-tailored to serve a significant gov-
Because appellants have not alleged facts supporting their claims that their First Amendment rights were violated when they were denied the opportunity to solicit signatures at the four public schools involved in this case, we affirm the district court‘s decision dismissing their § 1983 claims against the Sidney City Schools and Superintendent Miller. Appellants also have failed to allege facts supporting their claim that their First Amendment rights were violated by the City of Sidney or its employees Puckett and Wearly, and we affirm the district court‘s decision dismissing those claims as well.
Appellants’ remaining § 1983 claim is against O‘Leary in his official capacity as Shelby County Sheriff, and, as the district court noted, this claim is really one against Shelby County itself. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 67, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); Monell v. Dept. of Social Servs., 436 U.S. 658, 690 n. 55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (noting that official capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent“); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245-46 (6th Cir. 1989).4 In order to hold a county government liable under § 1983, appellants must be able to show that they were deprived of a constitutional right and that the county itself was responsible for the violation. Doe v. Claiborne County, 103 F.3d 495, 505-06 (6th Cir. 1996). We have already determined that appellants have succeeded, to this point, in alleging that they were deprived of their constitutional rights when a deputy with the Shelby County Sheriff‘s Office threatened them with arrest even after they moved to the public sidewalk at the Y.M.C.A. Appellants
B. Appellants’ § 1985 Claim
In addition to their § 1983 claims, appellants also alleged in their complaint that the City of Sidney, Puckett, Wal-Mart, and two of Wal-Mart‘s employees conspired to prevent them from “engaging in their statutorily-protected right to obtain signatures for a referendum petition, to introduce an improper and misleading ‘counter-petition’ in an attempt to influence the Board of Elections’ decision-making process, and to circumvent their right to a referendum through a pattern of unlawful, corrupt, and unethical legislative conduct,” in violation of
To state a cause of action under
III.
For the foregoing reasons, we affirm the district court‘s decision dismissing appellants’ § 1983 claims against the Sidney City Schools, the City of Sidney, Miller, Puckett, and Wearly. We also affirm the district court‘s decision dismissing appellants’ § 1985 claims against the City of Sidney and Puckett. We reverse the district court‘s decision dismissing appellants’ § 1983 claims against Sheriff O‘Leary in his official capacity insofar as it relates to activities on the public sidewalk outside the campaign-free zone at the Y.M.C.A. and remand to the district court for further proceedings consistent with this opinion.