Dye v. City of Bloomington

580 F.Supp.3d 560

Sarah DYE, Douglas Mackey, and Schooner Creek Farm, Plaintiffs,

v.CITY OF BLOOMINGTON, INDIANA, Marcia Veldman, Paula McDevitt, and John Hamilton, Defendants.

Paula McDevitt, City of Bloomington, Indiana, John Hamilton, and Marcia Veldman, Counterclaimants,

v.Sarah Dye and Douglas Mackey, Counterclaim Defendants.

No. 1:20-cv-00518-RLY-DML

United States District Court, S.D. Indiana, Indianapolis Division.

Signed January 19, 2022

Jacob Alexander Catt, Michael Jay Bruzzese, Orzeske & Blackwell, P.C, Indianapolis, IN, for Plaintiffs/Counterclaim Defendants.

James S. Stephenson, Pamela G. Schneeman, Stephenson Morow & Semler, Indianapolis, IN, for Defendants/Counterclaimants.

ENTRY ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

RICHARD L. YOUNG, JUDGE

Plaintiffs Sarah Dye and Douglas Mackey operate Schooner Creek Farms and sell produce at the Bloomington, Indiana city-run farmers’ market. Non-parties to this litigation have accused Dye and Mackey of being Nazis and/or white supremacists. Protestors began appearing at the Bloomington Farmers’ Market to protest Plaintiffs’ presence at the Market and to encourage market patrons to boycott Schooner Creek. Tensions grew over the course of the summer of 2019, ultimately leading to the present suit against Defendants, the City of Bloomington; Mayor John Hamilton; Paula McDevitt, Administrator of the Bloomington Parks and Recreation Department; and Marcia Veldman, Program Coordinator for the Bloomington Farmers’ Market (collectively, the "Defendants" or the "City"). Plaintiffs believe Defendants violated their constitutional rights by failing to intervene and stop the protests, selectively enforcing Market rules regarding expressive conduct, and encouraging the boycott.

Now pending before the court are Defendants’ Motion for Summary Judgment and Plaintiffs’ Motion for Oral Argument. For the reasons that follow, Defendants’ motion is GRANTED . Plaintiffs’ motion for oral argument is DENIED as MOOT .

I. Factual Background

The facts relevant to this motion are as follows, and the court views those facts in the light most favorable to Plaintiffs as the non-moving party. Swetlik v. Crawford , 738 F.3d 818, 821 (7th Cir. 2013).

Vendors wishing to sell their products at the Bloomington Farmers’ Market were required to sign the Farm Vendor Contract. (Filing No. 60-10, Paula McDevitt Decl., Ex. E ¶ 3 ("Contract"); Id. , Ex. A at 3 ("Handbook") (collectively, "Vendor Contract")). The Vendor Contract requires vendors to "collaborate with each other and the City, assist[ ] in creating a welcoming environment for all who attend the Market and ... represent themselves in a professional manner that reflects their commitment to the Market's mission and customer satisfaction." (Handbook at 19).

The Market established a designated location known as "Information Alley" for those wishing to distribute information. (Id. at 17). The 2019 Informational Table Policy governed Information Alley and those interested in setting up a table to distribute information. (Paula McDevitt Decl., Ex. B, Information Table Policy). In order to obtain a space in Information Alley, applicants were required to pay a one-time $10 registration fee. (Id. at 1). If anyone set up a booth or distributed information outside the Market area, they were not subject to the Information Table Policy. (McDevitt Decl. ¶ 8).

Sometime around May 2019, non-parties to this litigation discovered Dye's membership in Identity Evropa and the American Identity Movement, and Dye and Mackey were "doxed"¹ on June 1, 2019. (Filing No. 60-2, Dep. of Sarah Dye ("Dye Dep") at 38–39; Id. , Ex. L, Elletsville Speech Notes). Shortly thereafter, Bloomington community members formed No Space for Hate to oppose white supremacy and Schooner Creek's presence at the Market. (Filing No. 60-8, Dep. of John Hamilton ("Hamilton Dep.") at 44-45).

The first protestors showed up at the Market on June 8, 2019. (Filing No. 60-3, Dep. of Douglas Mackey ("Mackey Dep.") at 17). A "handful of people" stood in front of Schooner Creek's booth, told other Market patrons not to buy from Schooner Creek, called Mackey a Nazi, and generally harassed him. (Id. at 20). Marcia Veldman approached a Bloomington Police Department ("BPD") officer to ask for his assistance in stopping one of the protestors from handing out flyers. (Filing No. 60-5, Dep. of Marcia Veldman ("Veldman Dep.") at 55). The officer responded that he was there to protect people and property, not to enforce market rules. (Id. ). Veldman spoke to the protestor for 45 minutes and attempted to get him to relocate to Information Alley but was unsuccessful and believed she had no further recourse. (Id. at 80). Protestors returned to the Market on June 15, 2019, to flyer and encourage the boycott of Schooner Creek. (McDevitt Decl. ¶ 11). Market staff did not stop the protestors because they believed the First Amendment protected the protestors’ activity. (Id. ). Protestors appeared at Market every day that the Market was open for the remainder of 2019. (Dye Dep. at 299).

On June 17, 2019, the City received a petition signed by more than 200 individuals and co-signed by seven local organizations seeking Schooner Creek's expulsion from the Market. (Filing No. 1, Compl. ¶ 23; Dye Dep., Ex. U ("Petition")). Shortly thereafter, on June 20, 2019, Mayor Hamilton issued the following statement, which the court sets out in full:

Recent allegations about a vendor at our City's farmers market having white-supremacist affiliations have alarmed and activated our community. Including me, personally and as Mayor. I join the vast majority of Bloomingtonians in abhorring and unequivocally condemning the odious doctrine of white supremacy. We know how important speaking out against hate is these days, with events and statements in our country and around the world seeming to open the door for hateful ideologies.

We know too that today's progressive Bloomington has grown through our 200-year history in a soil laced with the toxin of racism. Like our state and country, our community was long home to both overt and covert white supremacy, in our laws, culture and mores. Generations have struggled together to make progress in Bloomington, to eliminate many legacies that persist. We know much remains to be done, and that we must redouble our efforts to stand together and affirm our belief in inclusion and welcoming and opportunity for ALL.

That's why it's so important to respond -- together and directly -- to racism whenever and wherever it appears. We report hate and bias incidents, annually compiled and published by our City's Human Rights Commission. Our community teems with individuals and organizations that work every day to weave that big, wide welcome mat that we want to be as real and inclusive as it should be.

One place where that welcome mat is vital is at the Bloomington Community Farmers Market, where, for decades of Saturday mornings, residents and visitors have gathered for fellowship and community-building along with their fruits and vegetables. The City has run the market through those years, explicitly committed to offering a space "where all can feel welcome and safe regardless of race, religion, color, national origin, ancestry, sex, disability, sexual orientation, gender identity, veteran status, housing status, or disability status" (as stated in the vendor handbook).

The City will not tolerate any vendor displays or behaviors at the market inconsistent with that fundamentally welcoming environment. We will vigorously protect against any behaviors that threaten those values. On the other hand, we must also comply with the US Constitution's First Amendment, which prohibits governments from restricting individuals’ rights to believe and speak as they choose, within very wide ranges, including those who sell at (or attend) a City-run farmers’ market.

Repeatedly and consistently throughout the last century, the US Supreme Court has said that government may not silence or punish people for disfavored beliefs, in cases involving viewpoints including Communists, anarchists, civil rights protesters, and Nazis. Our constitutional government's prescription for odious speech isn't government control or censorship. It's MORE SPEECH. That is, our community, including this Mayor, can make clear our values, even when our government cannot directly intervene.

That's why it's vital that individual Bloomingtonians and groups are stepping up and making their presence known at the market. To stand against hate and bigotry. Period. To welcome and embrace people without regard to all those characteristics used throughout history and still today to divide us one from another. To spend our money thoughtfully, knowing who we are buying from and how our purchases affect the wider world.

That's why as Mayor I want to make clear my loud condemnation of racism and bigotry, and my commitment to do all we can to keep working together to pull them out, root and branch, from our common soil. They and their descendants, privilege and implicit bias, continue to fester, demanding our vigilance and energies every day.

(Filing No. 60-9, Hamilton Resp. to Req. for Admis. No. 1 & Ex. A ("June 20, 2019 Remarks")).

Schooner Creek did not attend the Market on June 22, 2019, but protestors carrying signs encouraging the boycott stood in Schooner Creek's empty vending space and spoke with Market patrons. (McDevitt Decl. ¶ 12). Market staff again felt that the First Amendment prevented them from taking any action, so they did not confront the protestors. (Id. ). At this point, the Bloomington Parks Department determined that it was necessary to secure police assistance with the Market situation, so by June 24, 2019, BPD agreed to assist Market staff in enforcing the Market rules and to arrest violators for criminal trespass and disorderly conduct. (Id. ¶¶ 13–14).

On June 27, 2019, the Parks Department published a document titled, "Clarification of Long-standing...