Ind. Univ. Chapter of Turning Point USA v. City of Bloomington

641 F.Supp.3d 548

INDIANA UNIVERSITY CHAPTER OF TURNING POINT USA, et al., Plaintiffs, v. CITY OF BLOOMINGTON, INDIANA, et al., Defendants.

No. 1:22-cv-00458-SEB-TAB

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

Signed November 18, 2022

William Bock, III, Kroger Gardis & Regas, Indianapolis, IN, for Plaintiffs.

Liberty L. Roberts, Church Church Hittle & Antrim, Noblesville, IN, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

SARAH EVANS BARKER, JUDGE

This matter is before the Court on Plaintiffs' Motion for Preliminary Injunction [Dkt. 5], filed pursuant to Federal Rule of Civil Procedure 65. Specifically, Plaintiffs Indiana University Chapter of Turning Point USA and Kyle Reynolds seek preliminary relief enjoining Defendants City of Bloomington, Indiana, Adam Weston, in his official capacity as Director of Public Works for the City of Bloomington, and Kyla Cox Deckard, Beth H. Hollingsworth, and Dana Henke, in their official capacities as members of the Board of Public Works of the City of Bloomington, Indiana (collectively, the "City"), from enforcing the City's "right-of-way art policy" against Plaintiffs, which Plaintiffs allege violates their rights secured by the First Amendment to the United States Constitution, by prohibiting them from painting their proposed "All Lives Matter" mural.

Having considered the parties briefing and the documentary evidence, for the reasons detailed below, we GRANT Plaintiffs' motion.

Factual Background

The Black Lives Matter Mural Project

On May 6, 2020, the City adopted a resolution "denounc[ing] and condemn[ing] hate based on racial, social, and cultural bias and hold[ing] up values of peace, respect, inclusivity, and equity." Exh. 100 (Resolution 20-06). In furtherance of this resolution, on July 10, 2020, a group of City employees and appointees to a City advisory council known as the Banneker Community Center Advisory Committee (BCCAC)¹ met to discuss the feasibility of developing Black Lives Matter ("BLM") street murals at the Banneker Community Center² and other locations within the City, an idea suggested by two BCCAC members, JaQuita Roberts and Nichelle Whitney. Prior to the July 10th meeting, several City Departments, including the Office of the Mayor, Department of Public Works, Street Department, Community and Family Resources, Safe and Civil City, and Economic and Sustainable Development had expressed support for and endorsement of a BLM street mural project.

During the July 10th meeting, the attendees identified the following three potential locations in Bloomington for BLM street murals: Elm Street, in front of the Banneker Community Center gymnasium; Kirkwood Avenue, near the Monroe County Courthouse; and Jordan (now Eagleson) Avenue. The group selected the Elm Street location for the first mural after discussing the level of traffic on the street as well as the type of design to determine whether high traffic paint or exterior paint should be applied to produce the signage. The attendees also discussed the manner in which the City should share information with the public about the mural project, deciding that a press release about the project should issue at a time that coincided with release of information regarding the City's formal adoption of policy actions in support of equity and justice for Black residents and the renaming of Jordan Avenue to Eagleson Avenue.³ The importance of the City's "own[ing]" the mural project "in funding and purpose to show the BIPOC community its commitment to equity and justice" was also addressed at the July 10th meeting. Pearson Aff. ¶ 10. At the close of the meeting, the City employees and members of the BCCAC were assigned specific tasks aimed at moving the mural project forward, including exploring funding sources, paint types, and local artists, communicating with Indiana University ("IU") administration and IU's Black Student Union, and engaging other community partners in the project. Id. ¶ 17.

On July 28, 2020, the BLM street mural project was presented to the City's Parks Department and the Board of Parks Commissioners at their regular meeting. The minutes from that meeting show that the Board discussed that the City "needs to take the onus of funding [the project] to show the Bloomington community its commitment to equality and justice." Exh. 104 at 5. During that meeting, Sean Starowitz, who at that time was the City's Assistant Arts Director, stated that, in addition to the Elm Street mural and the "downtown mural," there was "a possibility of having three murals in the community, as there will be conversations with the County for possible partnerships, with [ ] Enough is Enough[ ] and with Indiana University." Id. Mr. Starowitz informed the Parks Board that the Bloomington Arts Commission had invited several artists of color to submit mural proposals and that at that point the City had received six submissions from artists. Id. Mr. Starowitz indicated that "due to [the] limited number, this may be extended," with a preference for Black artists on the project. Id. Following this discussion, the Parks Board unanimously approved the BCCAC's recommendation to proceed with the BLM street mural project. Id. at 6.

Although the possibility of three BLM street murals had arisen during the Parks Board meeting, the City passed Resolution 20-16 on September 23, 2020 officially "endors[ing] the painting of two Black Lives Matter murals—one on Elm Street in front of the Banneker Center, or at such other nearby location as the City and the Banneker Community Center Advisory Counsel agree is appropriate, and one at a downtown location to be determined, and support[ing] the City's use of existing funds to pay the artist(s) hired to design and paint the mural." Exh. 105. Resolution 20-16 "call[ed] on the Board of Public Works to permit th[e] use of a public right of way and join in th[e] public display of support for [ ] Black and Brown residents who have been fighting for justice and equality for far too long." Id.

The First Black Lives Matter Mural

On September 29, 2020, Mr. Starowitz presented the Board of Public Works with Resolution 2020-50 requesting approval of a right-of-way encroachment for the painting of a BLM mural on the surface of Elm Street between 7th and 8th Streets. Exh. 106 at 2. Mr. Starowitz indicated that the BLM street mural project was a "collaboration between the Board of Parks Commissioners, Banneker Community Center Advisory Council, Bloomington Arts Commission, the Office of the Mayor, Community and Family Resources Department and Bloomington Common Council." Id. In addition to the encroachment then requested, Mr. Starowitz stated that the City was "also planning an additional mural somewhere downtown, pending public engagement." Id. He further stated that the "interdepartmental project [was] requesting the Board of Public Works to permit [the] use of a public right of way and join in this public display of support for our Black and Brown residents, who have been fighting for justice and equality for far too long." Id. The Board of Public Works unanimously approved Resolution 2020-50 allowing for the encroachment for the first BLM street mural, which mural was painted on October 24, 2020. Id. at 3.

The City issued a press release on November 13, 2020, inviting community members to a virtual dedication ceremony for "the City's newly completed Black Lives Matter street mural project . . . ." Exh. 116. In that press release, Bloomington Mayor John Hamilton stated: "The City is proud that the words 'Black Lives Matter' live on our street . . . . We appreciate the residents who led this public art project and the many who helped bring it to life, and we look forward to continuing to engage with residents to live out the words in actions, to continue to address longstanding issues of racism and discrimination in our community." Id. A few weeks later, on December 1, 2020, the City issued a press release announcing that "the City's second Black Lives Matter street mural will be installed in downtown Bloomington on West Sixth Street between College and Walnut (the north side of the square) in the spring." Exh. 117. The December 1, 2020 press release indicated that funding for the first street mural had come from "unused municipal dollars originally budgeted and earmarked" for another project that was cancelled due to the COVID-19 pandemic and that the second street mural "will utilize material (such as paint) already purchased for the first mural; additional funds needed will come from the Department of Economic[ ] and Sustainable Development." Id.

The Second Black Lives Matter Street Mural

On April 13, 2021, Mr. Starowitz presented a second proposal to the Board of Public Works authorizing the painting of the second BLM mural on 6th Street between North College Avenue and North Walnut Streets. Since this was part of the same project previously approved by the Board of Public Works, consideration of Mr. Starowitz's Staff Report regarding the second mural and the requested Resolution for the encroachment of the right-of-way was addressed as part of the Board's consent agenda. Exh. 109 at 1. As with the first BLM mural, the second mural was identified as an "interdepartmental project" whose purpose was to display support for "our Black and Brown residents who have been fighting for justice and equality for far too long." Exh. 108. The Board of Public Works without further discussion approved Resolution 2021-10 authorizing the encroachment for the second BLM street mural. Id.

The City issued a press release on April 14, 2021, informing the public that "[t]he City's second Black Lives Matter street mural was approved . . . by the Board of Public Works for installation on the north side of the downtown square." Exh. 118. Mayor John Hamilton was quoted in the press release as follows: "The City is proud to welcome these murals to our public art landscape . . . . ...