*1 738 of the U.S. actions for the Tucker Act where immunity sovereign States’

United district Accordingly, Constitution, or Marshals.4 statute law involved— Taylors’ dismissing the Order right court’s a substantive regulation —creates affirmed. Complaint the Unit- Amended damages against money recover Testan, 424 v. States United ed States. See 948, 114 47 L.Ed.2d 398, 392, 96 recover right to

(1976). substantive The Tuck- in the not exist does damages

money must rather, claimant itself; “the Act

er of substantive the source

demonstrate interpret- fairly be ‘can upon relies

law he by Mehl, the Fed- Da mandating compensation VENEKLASE, Paul B. ed as Chris sus- damages Emmel, for the Larson, Nancy Jessica eral Government rold Mitchell, v. States Plaintiffs-Appellees, United Uchtman, tained.’” See 2961, 77 216-17, 103 S.Ct. v. Therefore, (1983). the dis- L.Ed.2d 580 FARGO, Defendant- OF CITY inquiry on its focused properly trict Appellant. fairly can Fourth Amendment whether compensation mandating interpreted be No. 98-2147. injury the the United States Appeals, Court United States Taylors sustained. Circuit. Eighth correctly deter District Court the relevant 2000. mined, review Oct. Submitted: from violation of involving allegations cases Filed: Feb. 2001. violations rights, that Amendment Fourth sei “unreasonable searches Amendment of the Fourth clause zures” compen requiring be read as fairly

cannot Order See damages sustained.

sation States, 105 v. Brown United (citing

at 6 (Fed.Cir.1997); Crocker

F.3d States, 191, 194-95 37 Fed.Cl.

United States, 17

(1997); Cl.Ct. v. United Lark States, (1989); Noel United (1989); 166, 169 v. United LaChance

Cl.Ct. (1988);

States, 15 Cl.Ct. States, 225, 226 1 Cl.Ct.

Royce v. United

(1982)). substantive there is no Where damages the federal from

right to recover 1346(a)(2) act as § does not

government, immunity of the sovereign

waiver Taylors cannot obtain

United States. under the the United States

relief from ties under Bivens Named v. Six Unknown Taylors could have appears that It Agents, 403 U.S. against claim brought "constitutional tort” capaci- L.Ed.2d deputy in their individual marshals *3 Milford, OH, Condit, argued,

Thomas W. Plaintiffs-Appellees. for ND, Miller, De- Fargo, argued, Mike fendant-Appellant. WOLLMAN, Judge, Chief

Before McMILLIAN, BRIGHT, RICHARD S. BEAM, LOKEN, ARNOLD, BOWMAN, HANSEN, SHEPPARD MORRIS MURPHY, BYE, ARNOLD, Circuit Judges. CURIAM.

PER ten-year almost lengthy, has a case This plaintiffs- when history beginning litigation Fargo, North City appellees sued assert- police officers and several Dakota in violation arrested they were ing that their rights constitutional alleged viola- or one persons of, more inside Fargo’s tion of residential picketing front, ordi- any premises about for the nance. After litigation extensive before a purpose of persuading an occupant of magistrate judge in the district court and premises such or to protest some ac- court, before panels of this tion, plaintiffs-appel- attitude or belief. lees obtained a judgment for damages 10-1202. Picketing of dwellings pro- against only the City of Fargo in the sum hibited. —No person shall engage $2431, plus attorney’s fees excess of picketing the dwelling any individu- $52,000. The appealed from the judg- al of Fargo.

ment, and this matter is now before the court en banc. We reverse and remand *4 After the picketers refused to leave entry for judgment of of dismissal in favor scene, the Fargo the police arrested the of the City. picketers and charged them with violat- ing the ordinance: Fargo The police I. BACKGROUND transported the plaintiffs to the Cáss background The history and of this liti- County Jail and held overnight. them gation may be panel found the opinion The Fargo police detained plaintiff reversing the judgment a rehearing after Uchtman, a minor at the time of her by panel. Veneklase v. City Fargo, of arrest, for only a few hours and re- (8th Cir.1999) (“Veneklase F.3d leased her to the of custody parents. her II”), vacated order granting reh’g en Fargo filed charges plaintiffs against relevant, banc. As opinion stated: Veneklase, Mehl, Larson and Emmel This extensive, case has almost violating the residential picketing ordi- eight-year history. In Fargo, North nance. 18, On February 1992, Cass Dakota, 10, on October at approxi- County Judge Frank L. Racek dis- mately p.m., 10:00 picketed activists missed the charges against plaintiffs, home of an abortion clinic administrator deciding that the ordinance was consti- and one or two houses on either side of tutional on its face but unconstitutional her home. The Fargo Depart- Police applied as on October ment received a complaint about the res- 10,1991. idential picketing. Fargo police officers Plaintiffs subsequently filed ac- this advised the picketers that their conduct tion, pursuant to 42 § U.S.C. violated Fargo’s then applicable residen- against Fargo, Todd, Officer David Of- tial picketing ordinance. ficer Jim Schalesky, Lieutenant Jon Fargo’s ordinance, enacted in Holman, and Sergeant Wayne Jorgen- as reads follows: seeking son redress for their arrest 10-1201. Definitions.—For pur- incarceration. On February poses article, of this certain words and 1995, a Magistrate Judge denied the in- phrases used herein are defined as dividual police officers’ claim of quali- follows: fied The immunity. district court con- A. “Dwelling” any means struc- cluded that the officers’ conduct was ture or building, or dwelling unit with- “objectively not light reasonable” of in building, which is place used as a clearly established law. The district of residence. court also Fargo concluded that failed

B. “Picketing” practice means to train and, its officers properly as a of standing, marching, result, or patrolling by was “deliberately indifferent” to plaintiffs’ violated in question nance liable picketers rights re- as a content-based rights constitutional of law. Ven a matter damages speech. free of striction F.Supp. Fargo, 904 eklase addition, (D.N.D.1995). 1038, 1058 ruling, rejected panel that the or concluded the district Fargo ordinance the 1985 determining that the Constitution violate not did dinance content neu- test of question passed con the ordinance because its face on facially not unconstitution- trality and was regula content-neutral valid stituted a the United ruling on al, relying for and the 1044-48. Id. at tion. Frisby v. case Supreme Court States this court appealed officers Schultz, re interlocutory We order. from reject- also panel L.Ed.2d 420 immunity qualified denial versed challenges to the ed other constitutional interlocutory appeal held that arrests. liability was municipal on issue for a re- Plaintiffs-appellees petitioned the court. Venek properly before banc, asserting error hearing en F.3d Fargo, 78 lase v. neutrality of content determination panel’s I”). Cir.1996) (“Veneklase (8th *5 an earlier by panel the of disregard and dis to the the case remanded We then Fargo’s to relating decision Eighth Circuit proceedings further for trict court picketing ordi- residential amended 1993 Fargo. against similar, cru- maintained nance which 10, 1997, district court the April On picketing defining residential language cial as a liable Fargo was determined earlier case That neutral. was not content granted sum- again of law matter Furness, Kirkeby plaintiffs is by cited plaintiffs. the in favor mary judgment of II”). Cir.1996) (8th (“Kirkeby F.3d 655 the court concluded district The a con- was unconstitutional did not raise rehearing for ordinance petition The speech. on free restriction the tent-based en banc consideration as a basis for is- the Fargo court then referred of liability of the district the issue of trial. jury for a damages to a of the of sue enforcement for the unconstitutional 1997, trial, August However, resulted held in exists ground That ordinance. in favor of Fargo damages against as an alternate briefs initial plaintiffs’ .... plaintiffs by five the court. ground affirmance omitted). (footnotes Id. at 1113-14 Feb- banc on rehearing en granted We case twice. considered panel 2000, argument 16, heard oral ruary filed it reversed an Initially, 7, 2000, 11, September On 2000. April on 30,1999. plaintiffs’ petition theOn August in order the submission the court vacated its initial panel vacated rehearing, Bye partici- to Kermit E. Judge permit did rehearing. It so granted opinion and April on joined the court Judge Bye pate. opportunity an give submis- 22, 2000, initial en banc after determination panel’s further address Circuit’s to the Eighth Pursuant sion. passed Fargo ordinance that the 1985 judge active procedures, established Veneklase neutrality. See test of content submis- after an en banc joining 1111, II, n*. 200 F.3d en banc pending may participate sion 7, September order dated By an cases. damages by noted, the award As banc prior en vacated the court determination on court rested district resubmis- April directed submission Fargo ordi- of the that the enforcement sion to the en bane court without further against City, fees and costs will there- argument fore be reversed. oral and on the basis of the original supplemental briefs. The or- requested II. DISCUSSION

der also additional simultaneous parties following ques- briefs on the The essential facts were stated in Vem- tions: quote: ekiase I which we 1. Does the deèision in Hill v. Colo- evening On the of October rado, 530 U.S. 120 S.Ct. plaintiffs engaged in a demonstration (2000), any bearing L.Ed.2d 597 have on outside the administrator's residence. question invalidity, facial or They forth, single walked back and as-applied, of the 1985 file, on the sidewalk in front of the ad- at issue in this case. home, ministratbr's but their route in- holding Frisby 2. Whether the approximately cluded two to three hous- Schultz, es on either side of the administrator's (1988), 101 L.Ed.2d 420 limits the 1985 addition, protester residence. In one scope picketing ordinance's in front of remained in front of the administrator's only house, "[wjhether protestors one home at all times. Plaintiffs remained may, Frisby holding, consistent with the signs. response silent and carried no adjacent targeted include houses to the complaint, to a the defendant officers dwelling on the route." See arrived and informed the demonstrators Fargo, Veneklase v. that their actions violated the ordinance. (8th Cir.1996). The officers thereafter arrested those persons (plaintiffs Order, Sept. 7, who refused to leave 8th Cir. *6 action, exception in this with the of one review, After careful we determine the protester, minor). Although plaintiffs a plaintiffs' unconstitutionality claim of facial charged violating were with the ordi- rejected. of the ordinance must be nance, charges these were later dis- question neutral, ordinance in is content county judge. missed vagueness and not void for or overbreadth. I, (footnote Further, case, Veneklase 78 F.3d at 1266 based on the record of this omitted), reh'g denied, applicable Supreme law, en banc cert. de Court case nied, 867, 178, prior appeal 519 U.S. 117 S.Ct. 136 of this court in the (1996). (Veneklase I, 1269), L.Ed.2d 118 78 F.3d at and other Eighth precedents any Circuit foreclose preliminary observation, As a we grounds affirmance on the alternative ar traditionallysubject note that courts have gued by plaintiffs-appellees. public ed restrictions on issue scrutiny. See, e.g., Barry, essentially adopt panel opinion careful Boos v. We 312, 318, 1157, II, 1111, expand 485 U.S. 108 S.Ct. 99 in Veneklase 200 F.3d and (1988); reasoning light recently L.Ed.2d 333 United States v. in of the decid- 703, Grace, 171, 1702, Colorado, 461 U.S. 103 S.Ct. 75 ed case of Hill v. 530 U.S. (1983); Carey Brown, 2480, (2000), by L.Ed.2d 736 447 120 S.Ct. 147 L.Ed.2d 597 455, 2286, Supreme U.S. (1980). "Picketing" 100 S.Ct. 65 L.Ed.2d 263 the United States Court. The judgment court, granting can include a wide of the district summary judg- variety activities, including prayer. plaintiffs' of motion for Douglas Brownell, 1511, against entering ment and (8th Cir.1996). allowing damages attorney's order and un- Hill, statute made it a Colorado a legisla represent

“Ordinances of a health care regulated in areas lawful par of promotion regarding tive choice eight within knowingly approach facility Madsen v. interests.” societal ticular of purpose “for the person of feet another Inc., Ctr., Health Women’s to, displaying a or handbill passing leaflet 129 L.Ed.2d 764, 114 S.Ct. to, protest, in oral sign engaging or a (1994). us restricts before The ordinance education, counseling with such other or streets, a in residential speech a of manner ” Hill, at 2484. .... 120 S.Ct. person Consequently, forum. public traditional well-settled subject to the is the ordinance reaffirmed Supreme Court the restric time, manner test: ac place, expressive of regulation “government viewpoint neu justified if is must be content neutral’ it tivity tion is ‘content channels regu of tral, ample alternative the content open leave without reference communication, narrowly tai in and be 2491. The statute speech.” Id. at of lated content-neutrality test governmen passed further a substantial lored to Hill Perry Ward, Educ. Ass’n v. Perry U.S. spelled tal interest. out Ass’n, 2746, 105 661: U.S. L.Ed.2d Local Educators’ See 74 L.Ed.2d 794 103 S.Ct. test passes statute The Colorado Racism, 491 Against First, v. Rock also Ward it independent reasons. for three 105 L.Ed.2d Rather, “regulation speech.” not a of is (1989) (“The inquiry deter principal where places regulation it is neutrality, speech Second, cases mining content was speech may occur. it some time, manner place, generally disagreement adopted not “because govern whether the particular, This con- message conveys.” eases it with the regulation speech adopted just by ment has the Col- supported clusion is message with disagreement legislative interpretation because orado courts’ regulations). noise conveys.”) (upholding it by the history, importantly more but unequivocal hold- Court’s Supreme

State apply “restrictions ing that statute’s Neutrality Content A. demonstrators, regardless equally to all we address background, With statutory language viewpoint, and the *7 issue, neutrality. The content the first the to the content of makes reference no agree the con the plaintiffs and Third, in the speech.” State’s interests the is deter stitutionality of pro- and privacy, access and protecting in decisions Supreme Court’s mined guidelines, clear viding with Colorado, U.S. 120 S.Ct. 530 Hill content of the dem- are unrelated to the (2000) Frisby v. and 147 L.Ed.2d 597 re- speech. As we have onstrators’ Schultz, 101 108 487 U.S. S.Ct. regula- peatedly explained, government L.Ed.2d 420 activity is “content expressive tion of justified if it is without refer- neutral” initially justification existed Whatever speech. of regulated ence to content an en banc consideration granting (footnote omitted). Hill, at 120 S.Ct. 2491 on the the district affirming Hill, Fargo’s in uncon Like statute 1985 ordinance is Colorado’s ground that the the test articulated passes longer no exists 1985 ordinance stitutionally content-based First, language, in the ordinance’s this court’s Ward. light in of Hill v. Colorado and in Austin, person engage picketing “No shall in Thorburn v. decision recent Cir.2000). (emphasis (8th any ...” dwelling of individual F.3d added), regulates nothing other than the similar argument that the made particular location of where one may here, pick- panel one majority espoused et. J.A. at II, (8th Kirkeby Cir.1996). F.3d 655 II, In Kirkeby the panel held the definition

Second, the ordinance does not speak to of picketing in Fargo’s contained 1993 resi types which of picketing prohibited. are dential picketing ordinance Rather, to be content- it bans all picketing. It therefore based. The ordinance defined picketing cannot be said that the ordinance was activity engaged in “for the purpose adopted any because of disagreement with persuading the public or an occupant of message conveyed by picketers. such premises or protest action, to preamble ordinance, to some evincing II, attitude or belief.” Kirkeby its purpose, references at concerns about 659. Because it protection impossible “the was preservation to tell person whether a engaged home.” at 1. was J.A. It picketing states that the “pub- without analyzing lic health the message, require and welfare” that “citi- the court reasoned that zens limitation enjoy feeling justi was not well-being fied without tranquillity homes”; while their reference to “the content. Hill practice rejected analysis. before ... dwellings causes emotional disturbance and distress According to Hill, Court’s to the occupants.” Id. There is no indica- the necessity of looking at the content of a anywhere tion in the record that the ordi- speaker’s message to determine whether it nance adopted was any because of dis- protest, was education, or counseling is no agreement with certain messages. different from determining partic- whether Third, every there is indication that ular conduct constitutes picketing. See attempted protect its citizens Hill, 120 S.Ct. at 2492. Picketing, by defi- from speech, unwanted whatever the mes . nition, “social, random, excludes or other sage, into their homes. The Supreme everyday communications,” but the Court Court repeatedly has held that govern has suggested “never that the kind of cur- ment may protect an right individual’s sory examination might be required to be free from unwanted speech the home. exclude casual conversation from the cov- See, e.g., Frisby, 484-85, 487 U.S. at 108 erage of a regulation of picketing would be 2495; Brown, S.Ct. Carey v. U.S. problematic.” Id. 2286; 100 S.Ct. FCC Pacifica Even Justice Kennedy, dissent, in his Found., 726, 748-49, appears agree that “[n]o examination of (1978); 57 L.Ed.2d 1073 Rowan v. speaker’s content of a message is re Post Dep’t, Office quired to determine whether an individual (1970); 25 L.Ed.2d 736 Kovacs is picketing,” *8 though even the provision v. Cooper, 77, 86-87, U.S. 336 69 S.Ct. education, relating protest, or counsel 93 L.Ed. case, 513 In this the different, ing and, is in Justice Kennedy’s City’s of interest protecting privacy the of view, runs afoul of content neutrality, even the home is unrelated to the content of the (Kenne if picketing does Id. at not. 2516 plaintiffs’ Thus, speech. the ordinance J., dy, dissenting). here clearly passes the content-neutrality test of Ward and Hill. reject We argument the that because

Turning again statute, to the Colorado inquiry might necessary be to determine in addition to finding that it passed the a person whether picketing, is the ordi- test, Ward the rejected Court specifically a nance therefore is content-based. As Hill that Ca- argument appellants’ reject'the to de “cursory examination” reasons, the the makes picketing of make definition sady’s not does picketing is if termine one Fur content-based. at 2492. Lincoln ordinance . law content-based. the in Thorburn ther, this of panel a Thorburn, at 1118. F.3d (8th Cir.2000), ruled Austin, 231 F.3d establishing Frisby as relies on Hill also (8th Cir.1996), II, F.3d 655 Kirkeby that stat- the neutrality of Colorado content the that establish upon to relied not be could that a ute, “the contention emphasizing “for the ordinance in language the simply because based’ ‘viewpoint statute is was content persuading” of purpose con- by the was motivated enactment Thor- content neutral. based, than rather a side of on one partisans of the duct similar ordi a somewhat bum construed Hill, support.” debate is without pick focused residential prohibiting nance 2494. at Lincoln, Nebraska: eting in a con- sum, Frisby foreclose and Hill Kirkeby rely on appellants The Cir.1996), un- is (8th Fargo’s 1985 ordinance clusion that Furness, for lack of content picketing on its face definition constitutional where we held Frisby ordi- picketing upheld laws neutrality. a residential contained The ordi- in Thor- Hill, this court recently by content-based. nance to be activity en- rights, picketing bum, speech free respecting nance defined while persuading purpose in “for in limited circumstances gaged recognize that prem- occupant of such or an public is entitled to speech target of specific action, attitude some protest or to ises forced to lis- being from protection some it was Because Id. at 659. or belief.” clearly falls into ten. This ordinance is person to tell whether impossible neutrality issue of content category. This analyzing without engaged picketing in favor only issue decided was the limitation we held that his message, plaintiffs. reference justified was not without con- ordinance is concluded the Having this sort rejected Hill id. content. See tent-neutral, whether we must determine analysis. significant to serve a narrowly tailored it is According to the Court’s it pre- and whether interest government con- at the Hill, necessity looking of com- channels ample alternative serves to deter- message speaker’s tent of prohib- munication. Because education, protest, it was mine whether directed speech ited the ordinance from deter- no different counseling is at primarily general public to the but con- conduct particular mining whether unwilling presumptively are those who See picketing. stitutes it, City has a substantial receive Picketing, by defini- S.Ct. at na- it. The banning justifiable interest random, “social, or other tion, excludes interest make of this scope ture and communications,” but everyday also narrowly tailored. ban suggested “never Court has alternative channels ample open leaves might cursory kind of examination Thus, de- we reverse communication. conversa- to exclude casual required be the district court. termination of regulation of coverage of a tion from the *9 problematic.” would be picketing and Overbreadth Vagueness B. at- Engaging demonstrations in this case also prior panel opinion are inher- opinions influence tempting to assertions rejected other we addressed and that Hill picketing. requires ent unconstitutionality, 37 L.Ed.2d 830 This court the ordinance's facial specffically vagueness recently "[p]rohibiting and overbreadth. held focused doing so, panel F'risby picketing plainly legitimate." In relied on and residential is Fargo adding Thorburn, Here, stated that the 231 F.3d at 1121. an "dwelling" "picketing" engaged activity definitions of to individual in an is Frisbp specific occupant the ordinance at issue in did not directed at a of a dwell vague. make the ordinance overbroad or ing legitimate sweep falls within the of the II, 1117; Hill, Veneklase 200 F.3d at ordinance. (noting "picket" 120 S.Ct. at 2492 is strongly supports rejection Hill also "persuade defined to mean or otherwise plaintiffs' alternative theories of consti influence"); (stating "[pier- Thorburn imperfection Fargo tutional in the ordi haps the ordinance could have been more nance. The Court in Hill determined that exact, questions may but the fact that arise statute, significantly the Colorado restric regarding applicability to certain con speech, narrowly tive of nevertheless was automatically duct does not lead to the tailored, Hill, 2494-97, see 120 S.Ct. at vagueness"), conclusion that it is void for that the statute was neither overbroad nor 231 F.3d at 1121. unconstitutionally vague. See id. at 2498- provides The ordinance fair warn ing prohibited. of the conduct that is A Accordingly, no basis exists for affir- person ordinary intelligence can con plaintiffs' mance on alternative constitu- stands, marches, clude that if he or she tional theories. patrols of, of, any inside in front or about dwelling person he or she intends to C. Other Grounds for Affirmance target, directing per at that petition rehearing son, picketer subject prosecution While the did not is appli- Fargo raise the issue of an unconstitutional under the ordinance. ordinance, cation of the it was briefed in Furthermore, ordinance does plaintiffs' argued initial brief and brief- enforcing not leave those who are it with ly Plaintiffs-appel- to the en banc court. unfettered discretion to determine whether lees contend that the should be re- a violation has occurred. As Thorbur'n sponsible any by police arrests made ordinance, stated relative to a similar who, plaintiffs say, officers arrested them "[p]ollce officers will have to use discretion parameters Frisby. outside the set out in activity picket- to determine whether an short, plaintiffs they claim that did not ing focused, and whether it is but enforce- they violate the ordinance and maintain ment of all laws involves some discretion." pursuant city that the arrests occurred Thorbunz, 231 F.3d at 1121. Because policy, and, thus, the ordinance was uncon- discriminatory there is no real risk of en- stitutionally applied to them. forcement and because the ordinance prohibits, makes clear what conduct it we view, "as-applied" In our is unconstitutionally vague. hold that it is not previously against plain sues were decided For us to find a statute unconsti tiffs the district court after remand from Venekiase I and the contentions ad tutionally overbroad, its "overbreadth justify oniy real, vanced on these issues do not must not be but substantial as well, judged affirmance here on these alternative in relation to the statute's plainly legitimate sweep." grounds. "as-applied" argument Broadrick v. fails Oklahoma, appeal, 93 S.Ct. because this court held in the first

748 liability prem- “municipal that concluded I, of the arrest “that

Veneklase not flow theory does a ratification on objectively was ised officers defendant by the Id. rules legal City’s the the admissions.” of from light reasonable occurred.” the action at the time existence train police deficient Regarding ruling I, 1269.1 This F.3d at 78 Veneklase alleged from the liability can flow ing, no law the case. the of became officers. Fargo police train the failure to arguendo, that Further, assuming, laid to rest adequately been has This issue made, unconstitutionally were arrests the in this case: court’s in the district the necessary to show that be it would ruling Eighth of the Circuit’s light (a) directly custom a or policy had City the regarding that law I the ] contravening [Veneklase federal authorizing conduct (b) Amendment law; the First or of parameters and state constitutions a City against Can abortion protest to training. right See police deficient of 378, 385, Harris, clearly estab- was not area ton residential (1989) arrest, (determining plaintiffs’ time of at the L.Ed.2d lished only may police be held liable train municipality [sic] that failure its City’s result which moving violations for constitutional as the could not serve officers custom). Howev municipal policy plaintiffs’ from of the violation force behind liability any er, rejected the district court pa- rights. Since Amendment First City ground. on this against Amendment plaintiffs’ First rameters of any training in question, were still rights custom, no policy or evidence Regarding neces- would City’s police of officers City followed in the record exists in doubt. parameters those sarily leave arrest police its officers having of a custom training by the of Consequently, the lack of the not in violation who were picketers force behind moving City cannot be judge determined magistrate law. constitutional plaintiffs’ of the violation policy or have a City did not rights. unconstitutionally applying custom of Veneklase, F.Supp. at See ordinance. Order, Dist. Ct. Mem. J.A. at judge did magistrate & n. 16. The 10,1997. April had ad- chief that the observe Moreover, arresting po where arresting discovery that during mitted liability to are absolved lice officers existing pursuant acted police officers arrestees, is not liable. City ordinarily specifi- training, none which policies issue two cases. addressed this We have the enforcement cally addressed Crocker, Mo., 30 F.3d In Abbott implications or the antipicketing (8th Cir.1994), judg that a we held However, n. 16. since Frisby. at not matter of law could be a ment as of an equivalent are not “admissions municipality where the against a decision, of a sustained in the form affirmative cast arresting officer had judgment against statement, ...” the district policy holding defined find we do not I commented on opinion Veneklase 1. The pick residential parameters of pro 'focused' Frisby stating, outer “Whether the contours of plaintiffs did not have eting. We Frisby hold hold may, with the testers consistent right on October targeted clearly established ing, adjacent to the include houses route, encompassing the Bovard picket in route issue dwelling is an on the two to three homes on and the today, yet is a residence it we need resolve which I, it.” Veneklase side of lingers Fris either significant question after which omitted). (footnote Thus, Frisby, reading 1268-69 by. upon a careful *11 been reversed on a fact basis. The court theory, unless [an officer] is found liable stated: on the claim”). underlying substantive Id. at 1367. City

The cannot be hable connec tion with either the excessive force claim In the absence a record establishing claim, or the arrest, invalid an illegal arrest whether on a in the circumstances as failure theory to train here where or a municipal arresting officers have fault, been custom or absolved of policy theory, unless Officer plaintiffs-appel- lees present cannot Stone on found hable tenable basis for underlying affirmance of judgment against substantive claim. See Reynolds City City on alternative grounds Rock, the ar- (8th Little 893 F.2d resting officers unconstitutionally applied .1990), Cir quoting City Angeles Los question. ordinance in Heller, 796, 799, 106 89 L.Ed.2d 806 reason, For this No basis exists for affirmance on alter- where appellee was not entitled to grounds native argued by plaintiffs-appel- JAML against officer, lees.

grant of against City JAML was also III.

erroneous. CONCLUSION judgment against the City at 998. for damages and assessment of attorney’s More recently, we reaffirmed Abbott in fees is REVERSED. No costs are award- Larson, (8th Olinger v. 134 F.3d 1362 Cir. ed appeal. on 1998). There plaintiff filed a civil rights against action officer, the arresting ARNOLD, RICHARD S. Circuit Judge, the chief of police, and the City of Sioux joined by WOLLMAN, Chief Judge, Falls claiming a violation of constitutional BOWMAN, BEAM, and MORRIS rights stemming from the arrest. ARNOLD, SHEPPARD Judges, Circuit The district initially granted sum dissenting. mary judgment dismissing against the case Most of the opinion goes Court’s to es- the arresting officer but not dismissing the proposition tablish the that the Fargo or- pohce chief of and the because of dinance was content I neutral. do not evidence suggesting a failure train. La contest point. follow, this It does not how-

ter, the district court entered newa order ever, that judgment of the District granting a summary judgment of dismissal Court should be reversed. There are at affirmed, ahon claims. stating: We least closely two related alternative grounds for affirmance: that the ordinance In light of rulings our that Detective overbroad, was unconstitutionally and that Larson and Chief Satterlee did not vio it was not narrowly tailored ato substan- Olinger’s late fourth amendment rights, tial state end. I Because believe that both Olinger’s against claims based of these grounds merit, have I respectfully on its alleged inadequate training and dissent. supervision of Detective Larson and Satterlee, Chief must also fail. See Ab I. Crocker, bott v. City (8th Cir.1994) (“The City cannot be lia question of overbreadth turns on ... ble whether on a failure to train whether the Fargo ordinance exceeds its theory or a municipal or policy custom constitutional limits in a way “may towards their may “direct” court to re before the others cause *12 The distinc- sense. physical in a occupant protected constitutionally frain from at The ordinance a difference. makes v. Okla tion Broadrick or speech expression,” of dwell- prohibits “picketing here 37 issue 93 S.Ct. homa, 413 U.S. as is defined “picketing” where ings,” (1973), its over and whether 830 L.Ed.2d real, but substan ... only marching or reaching standing, is “not of practice the plain to well, [its] in relation judged inside persons as more tial one or patrolling at 615. Id. sweep.” for ly legitimate front, any premises of, about in or occupant purpose persuading of the overbreadth plaintiffs’ the rejecting In protest to some or premises of such of on the statement claim, relies the Court attitude, action, or belief. Austin, v. in panel Thorburn the out, (8th Cir.2000), fo this definition “[pjrohibiting that plaintiffs point theAs conduct— n legiti plainly picketing protected to is both cused residential extends statement, by it “focused” physically not categorical marching is This that mate.” plaintiffs The the mean- very little. within self, particular residence establishes on a speech— a constitu they Frisby protected that have claiming ing of not are —and intended, only not in residen engage “focused are right messages that tional couldn’t, house, for the because but They occupant picketing.” tial contrary. rejects both of Court large. establishes at The Frisby public case clearly address- is arguments do claim without these What were they which under ing ordinance either one. conduct range encompassed arrested problem: to the second brings me This just than substantially more that includes lose the picketers Frisby say does not residential “targeted” or the “focused” whenever Amendment of the First shelter most Frisby. in addressed picketing occu specific at activity is “directed their the Court’s overbreadth part of important speech as or whether building,” of a pant therefore, that “an is its analysis, assertion narrower. holding is conduct. Its activity that is in an engaged individual faced with Supreme Court was Frisby, the dwell occupant of a specific at a directed two lower federal an ordinance sweep of legitimate ing falls within restrictive illegally to be courts had held Ante, amounts at 747. This ordinance.” In or constitutionally protected speech. is “focused” holding picketing ato difficulties,” “constitutional der to avoid whenever Frisby purposes, “targeted,” for 2495, the Court at 487 U.S. of a occupant a specific it at is “directed prohibiting ordinance as construed building.” taking place solely picketing “only focused particular residence.” in front of a problems with significant There are two mine). construed, the ordi So First, (emphasis Be- ambiguous. holding. it is this 488, 108 at See id. upheld. nance was of conduct “a mixture picketing cause its narrow (“largely because communication,” S.Ct. 2495 NLRB v. Retail to the challenge scope, the facial Employees, Store fail”). Although (1980) (Stevens, must L.Ed.2d S.Ct. forum, id. public in a Frisby took concurring place

J., part concurring forced 481, 108 message was result), specific at a may it be “directed privacy in the recipient unwilling on an picket- different ways. occupant” that, in that held the home. The Court to be the occupant may ers intend by the ordi- activity prohibited they respect, message, or of their primary recipient nance resembled an offensive radio broad up walked and down a residential street cast, offensive matter sent through the blocks, extending city several in front mails, speech or an offensive from a blared houses, of thirty in order persuade truck, sound closely more than it did such only a specific resident of the street but protected marching, activities as Greg see also neighborhood general. Consid- ory City Chicago, 394 U.S. at er the exchange that followed: (1968), S.Ct. 946 or distributing leaflets A. In front of his dwelling was the door-to-door, State, Schneider see you words used? *13 147, U.S. 84 L.Ed. 155 Q. In front thirty dwellings. Frisby, 487 at He U.S. 108 S.Ct. 2495. goes back and forth To the extent in front of “plainly that the thir- legitimate ty sweep” dwellings but only a he picketing restriction knows one depends upon person Frisby, it who only could extend lives one of picket those to ing that takes place “solely dwellings of a his message very front is residence,” particular id. at much S.Ct. directed at that person and to 2495, and primarily functions “to force all the neighbors. speech into the home of an unwilling lis A. I say would there probable was tener.” Id. at Any S.Ct. 2495. cause that he inwas violation of - broader restriction is not “plainly legiti that ordinance.

mate” and may be unconstitutional. Q. Okay. if expand And we that same remaining question is whether the over- thirty fact from to a hundred houses breadth —the range protected speech ... would that change applica- purports ordinance prohibit to sub —is bility of the ordinance? stantial. A. I don’t believe so. What kinds activity does Fargo attempt ordinance to reach? In deter- Q. Okay. your And police force was mining the breadth ordinance before authorized to it that way. enforce it, Frisby Court relied on the town They A. were authorized to it enforce attorney’s insistence that his town’s ordi- if they probable had cause to be- nance would be in variety enforced a lieve that that ordinance was being probably unconstitutional ways, even violated. though plain language suggested that it Q. could be. 487 at On the hypothetical just I gave you case, In this plaintiffs’ you asked felt there attorney probable was cause Fargo Police Chief Ronald thirty Raftevold those cases of houses and a whether probable cause for arrest would hundred houses so long pick- as the if person exist a holding picket a sign eting persuade intent and to and to enforced, but, 1. The Court focuses on the circumstances un- importantly, more at what sort der which the applied, appar- ordinance was of enforcement it authorizes. It is worth not- ently Lhat, taking however, plaintiffs' the view that the ing, over- according to breadth long claim city must fail as as reports, plaintiffs incident were arrested constitutionally prohibit could the kind of marching silently back forth in front plaintiffs residence, conduct for actually which were group: of a six-house the Bovard it, arrested. That is incorrect. The two houses on one side of three on the claim that the was ordinance overbroad on its other. JA by This fact 194-95. face, applied not merely as to prevents them. In evalu- itself us from saving the ordinance ating challenge, the facial we must look not adopting a construction narrow as the only at how actually the ordinance has Frisby. been one in II. pres- there was person one protest ent. reasons, the ordi some of the same For sig tailored to a answered, narrowly nance was not Asked and MR. MILLER: true interest. It is governmental nificant Counsel. protecting interest in resi that the state’s 243^45. JA Frisby significant. is privacy dential sub interpretation Raftevold’s Chief 108 S.Ct. 2495. shows that. very in the merges that a com Frisby But also establishes “constitutional difficulties” same species ban on a of communication plete holding escape by sought Frisby only ... if each narrowly “can be tailored in that case extended that the ordinance proscription’s scope activity within the single resi ... directed at “picketing Id. at targeted evil.” appropriately dence,” marching “[gjeneral but not If First Amend 108 S.Ct. 2495. or even neighborhoods, through residential city to criminalize march permits ment *14 block in front of an entire walking a route street, with ing up and down a residential ” 483, Frisby, .... 487 U.S. at of houses intent, even thirty in front of or persuasive the time of Fris 2495. Even at 108 S.Ct. houses, only that the provided a hundred concurring sug by, Justice White’s in picket goes past targeted one residence saving grace that without gested march, hard to the course of the then it is in the ordinance Fris interpretation, that diffi what kind of “constitutional imagine overbroad. by would have been Frisby could have had culties” Court J., (White, concurring 108 S.Ct. addition, application In the actual mind. then, the Madsen case judgment). Since picketing here —to ordinance in Frisby cannot be has made clear houses, according Fargo front of to the six “buffer terpreted justify a 300-foot beyond went plainly themselves— Madsen, supra, 512 U.S. at zone.” See Frisby’s “picketing taking reference to 2516; 774-75, Lucero v. see also S.Ct. solely particular in front of a resi place (11th Cir.1997) Trosch, dence ....” 487 U.S. at residential buffer (striking down 200-foot interpretation, Frisby 2495. The Court’s zone; discussion stating that “the Court’s here, hold necessary unavailable was to its prece [in makes clear Madsen] Be ing tailoring. on the issue of narrow targeted pick support dents restriction interpreta an adopt cause we cannot such a restric eting generalized rather than tion, contrary result. we should reach the tion”). Frisby, In addition to the Court claims Colorado, case, that Hill v. Fargo In our claims (2000), modeled 147 L.Ed.2d 597 that its ordinance was rejection plain plain language “strongly supports Its Frisby. on the one of constitutional a net. The differ- tiffs’ alternative theories casts at least as wide ence, however, in the ordinance.” Fargo’s imperfection is nothing argument. This claim adds to the by narrowing construc- cannot be saved marked off Hill dealt with a statute that interpreted leading it tion. As was enforcement, anyone pub in a eight-foot area around city charged official with its within 100 feet of a health substantially right-of-way be- lic the ordinance reached facility. The statute made it a misde yond legitimate scope” estab- care “plainly area, knowingly I meanor to enter Frisby. Accordingly, lished in would consent, in person’s without the order facially hold that it overbroad. was counsel, educate, protest, or out hand Hill,

pamphlets. 1. RIEDL, S.Ct. at n. Appellee, John D. An eight-foot person’s body zone around a manifestly different from a zone of one GENERAL AMERICAN LIFE hundred, thirty, or even five houses COMPANY, INSURANCE around residence. this case should Appellant. doubt, inbe the Hill explicitly Court stat ed that the Colorado ordinance “inter No. 00-2120WM. far speaker’s ability fere[d] less with a United States Court of Appeals, communicate than did the total ban on Eighth Circuit. picketing on the sidewalk outside a resi Schultz). . .” (upheld Frisby dence Submitted: Jan. 2001. Id. at 2497. If Frisby help does not Far Filed: April go, neither can Hill. III.

I believe the is liable here.

ordinance is invalid on its face. A munici

pality § faced awith 1983 action cannot

plead qualified absolute immunity, nor *15 good

is the faith of its officers a sufficient defense. See Indepen Owen

dence, Missouri, city L.Ed.2d 673 A

is liable damages § under 1983 if its

officers deprive of liberty pursu someone

ant to a facially municipal unconstitutional See, Brownell,

ordinance. e.g., Douglas v. (8th Cir.1996) (denial

88 F.3d 1511 pa permit pursuant

rade permit overbroad

ordinance); Gerritsen v. Ange Los les, (9th Cir.1993) (arrest 994 F.2d 570

pursuant to prohibition overbroad on dem in a

onstrating park public per without

mit). just did that.

I respectfully dissent.