Hartman v. Thompson

931 F.3d 471

Chris HARTMAN ; Sonja DeVries; Carla Wallace, Plaintiffs-Appellants,

v.Jeremy THOMPSON; Jason Drane; Brian Hill, Defendants-Appellees.

No. 18-5220

United States Court of Appeals, Sixth Circuit.

Argued: October 4, 2018

Decided and Filed: July 23, 2019

SUHRHEINRICH, Circuit Judge.

Chris Hartman, Sonja DeVries, and Carla Wallace (collectively, "Plaintiffs") are members of an organization called The Fairness Campaign. In 2015, they protested the annual Ham Breakfast at the Kentucky State Fair because it was sponsored by the Kentucky Farm Bureau Federation ("KFB"). Plaintiffs were allowed to protest in a designated zone. Eventually, Plaintiffs were arrested for causing a disruption, and they sued Kentucky State Troopers Jeremy Thompson, Jason Drane, and Brian Hill (collectively, "Defendants") for a variety of constitutional and state law claims. The district court granted summary judgment to Defendants. We AFFIRM .

I. BACKGROUND

On August 27, 2015, the KFB sponsored the 52nd annual Ham Breakfast at the Kentucky State Fair. To gain admission to the Ham Breakfast, attendees had to buy two tickets—one to get into the Fairgrounds and a separate ticket for the Breakfast.

On August 26, 2015, the day before the Ham Breakfast, The Fairness Campaign, the American Civil Liberties Union of Kentucky, and the Jefferson County Teachers Association (referred to here as "The Fairness Campaign") e-mailed a joint press release. The press release stated that The Fairness Campaign "will protest the [KFB]’s discriminatory policies at the annual State Fair Country Ham Breakfast Thursday, August 27, 7:00 a.m. in South Wing B of the Kentucky Exposition Center." The Fairness Campaign described KFB’s discriminatory policies as "anti-LGBT, anti-teacher, anti-union, anti-choice, and pro-death penalty, among others."

Later that evening, Thompson—who oversaw general law enforcement at the Fairgrounds—received a phone call from Fairgrounds CEO Rip Rippetoe asking him to come in for a meeting regarding The Fairness Campaign’s press release. Thompson, Rippetoe, Dr. Mark Lynn from the Fairgrounds’ Board of Directors, Chris Brawner from Fairgrounds’ security, and Ellen Benzing from the Fairgrounds’ legal staff met "to determine how that protest was going to be handled." Kentucky Administrative Regulations ("KAR") regarding demonstrations at the Fairgrounds require 72 hours’ notice to the Executive Director of the Fairgrounds. See 303 KAR 1:080(2). After the notice is received, the protestors "have to receive a permit from the [F]airgrounds with the specifics of ... where, [and] the number of people they’re going to have so that the[ protestors] can be accommodated." According to Thompson, "[t]hat was [the Fairgrounds’] decision whether they would or would not allow" The Fairness Campaign to protest. Even though The Fairness Campaign did not abide by 303 KAR 1:080(2) and instead only sent out a press release, the Fairgrounds group made a "collective decision" that they would "allow the protest even though sufficient notice had not been given according to KAR regarding protests on [F]airgrounds property." The group decided "to allow the protest to make it relevant to the venue but to keep it in an area that did not disrupt any services that were going on." After the meeting, Thompson led the group out to the parking lot, approximately 50 feet from the sidewalk outside South Wing B, where he suggested an area for the protest. The suggestion was based on handicap-accessible parking because Thompson remembered from previous dealings with The Fairness Campaign, when they had protested the event in prior years, that "there were a few members that were with the group that were handicapped, or if not handicapped they used assistance with canes, wheelchairs and so on." The group agreed with Thompson’s recommendations and flagged off the area (the "protest zone") for The Fairness Campaign to use the following morning.

The next morning, twenty-four members of The Fairness Campaign, including the three Plaintiffs, arrived wearing bright orange T-shirts which "enumerated the [KFB]’s discriminatory policies." Thompson met Hartman in the parking lot and told Hartman that The Fairness Campaign would be permitted to protest in the protest zone. Thompson told Hartman that inside the protest zone The Fairness Campaign could use signs, megaphones, "the whole nine yards." The Fairness Campaign then went to the protest zone.

Thompson also warned The Fairness Campaign that they could not disrupt the Ham Breakfast when they went inside. Hartman retorted, "I’m going to do what I have to do," which included the decision to "ramp up activities until the [KFB]’s policies were amended." Thompson recalled that in 2014, twenty-four members of The Fairness Campaign attended the Ham Breakfast wearing bright yellow T-shirts. As other guests went through the buffet line, The Fairness Campaign stood nearby in a single-file line, alternately facing forward and backward, for 15 to 20 minutes. The Fairness Campaign then got their breakfast and waited until the conclusion of the invocation. When KFB President Mark Haney began introducing dignitaries from the dais, The Fairness Campaign moved in front of the dais and again stood, alternately facing forward and backward, in a single file line for 60 seconds. The Fairness Campaign was not arrested for this behavior.

According to Hartman, Thompson’s warning in 2015 not to protest inside the Ham Breakfast caused The Fairness Campaign to rethink its plan. Instead of standing in front of the speaker’s dais, The Fairness Campaign decided they would stand silently at their assigned table for 60 seconds. Hartman did not tell Thompson or anyone else from the Kentucky State Police about this change in plan.

Upon leaving the protest zone, Plaintiffs presented their tickets and entered the Ham Breakfast without restriction. The Fairness Campaign was seated together at three tables located in the corner farthest from the front of the speakers’ dais. After the opening invocation and as the first speaker began to address the attendees, The Fairness Campaign simultaneously rose from their seats and stood at their three tables silently. This action led to their arrest, although the parties dispute what happened next.

Plaintiffs maintain that immediately after they stood up, police officers approached them, placed Hartman under arrest, and escorted him from the building. Plaintiffs contend none of the officers asked Hartman or other Fairness Campaign members to sit down or leave before arresting him. Thompson, however, testified he approached Hartman and asked him to sit down, but Hartman refused to answer and did not sit down. Drane testified after Hartman was placed into handcuffs, he picked his feet up and had to be "pack[ed] out" of the venue by the troopers. For his part, Hartman stated that after being handcuffed, he "decided, in protest, to dead drop" in response to Defendants’ having "jerked [him] forward" when he hesitated to accompany them. Drane subsequently arrested Hartman for failure to disperse and disorderly conduct in the second degree.

After Hartman was arrested and escorted from the Ham Breakfast, Thompson returned to the venue to find other individuals still standing at the table. Thompson testified he told them they had to leave and that all but two women left the Breakfast. Thompson said that although he asked one of the women to leave, she repeatedly stated she was not leaving.

DeVries testified that following Hartman’s arrest, Hill approached her and told her she had to leave. DeVries explained to Hill that she was getting ready to leave and was waiting for her friends. DeVries stated that Hill then placed her under arrest and escorted her from the event. Hill, however, claimed that DeVries had already been handcuffed when Thompson asked Hill to escort her out of the Breakfast and that Thompson instructed Hill to charge DeVries with failure to disperse.

Wallace asserted that after Hartman was removed from the Breakfast, troopers approached her and told her she had to leave. Before she was given a chance to respond, Wallace contended that she was removed from the venue and placed under arrest. Thompson arrested Wallace for failure to disperse.

The day before their trials in state court were set to begin, the Jefferson County Attorney moved to dismiss all charges against Plaintiffs. Three judges granted the motions and dismissed the charges.

After the charges were dismissed, Plaintiffs filed a complaint in Jefferson County Circuit Court, asserting four constitutional violations under 42 U.S.C. § 1983 : false arrest and malicious prosecution in violation of the Fourth Amendment, and free speech and retaliatory arrest claims in violation of the First Amendment. Plaintiffs also claimed wrongful arrest, malicious prosecution, and battery under Kentucky law. Defendants removed the case to federal court and moved for summary judgment. The district court granted summary judgment to Defendants on all claims, both on the merits and on qualified immunity grounds.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo and view all facts in the light most favorable to Plaintiffs, the non-moving parties. Brumley v. United Parcel Serv., Inc. , 909 F.3d 834, 839 (6th Cir. 2018). A district court must grant summary judgment when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). There is not a dispute of material fact when the plaintiff presents only a mere "scintilla" of evidence; there must instead be "evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. ANALYSIS

A. Protest Zone Outside the Ham Breakfast

Plaintiffs allege Defendants violated their First Amendment free speech rights when they were directed to the protest zone...