Mellott v. Sprague

334 F.Supp.3d 916

Bryton G. MELLOTT, Plaintiff,

v.Kenneth D. SPRAGUE, et al., Defendants.

Case No. 17-CV-2006

United States District Court, C.D. Illinois, Urbana Division.

Signed June 15, 2017

Everett Joseph Cygal, Christopher Allan Nelson, Kevin James Whelan, Schiff Hardin LLP, Bharathi P. Pillai, Rebecca Kim Glenberg, Roger Baldwin Foundation of ACLU Inc., Chicago, IL, for Plaintiff.

Keith Eric Fruehling, Brian Michael Smith, Heyl Royster Voelker & Allen, Champaign, IL, for Defendants.

ORDER

COLIN S. BRUCE, U.S. DISTRICT JUDGE

This case is before the court for a ruling on Defendants' Motion to Dismiss (# 25). Defendant's motion was filed on March 27, 2017. Plaintiff filed a response on April 10, 2017. The court has thoroughly reviewed the arguments presented by both sides. For the following reasons, Defendant's Motion to Dismiss (# 25) is GRANTED in part and DENIED in part.

BACKGROUND¹

Plaintiff filed the instant lawsuit on January 11, 2017, alleging that Kenneth D. Sprague, Jeremy A. Hale, Matthew E. McElhoe, and Andrew J. Charles ("Defendants") violated his rights under the United States Constitution and the Illinois Constitution. According to the complaint, all Defendants are law enforcement officers employed by the Urbana Police Department.

Plaintiff alleges that around June 15, 2016, he conceived an idea to express his dissatisfaction with political and social events by burning an American flag. In order to prepare for his planned demonstration, Plaintiff purchased an American flag and waited for a rainy day to ensure that nothing but the flag would catch fire. The rain came on July 3, 2016. On that date, Plaintiff received permission from a friend to use the backyard of his home, near Lincoln Avenue and California Street in Urbana, Illinois, to burn his American flag. Plaintiff chose this location because he thought it would be a private area, fairly hidden from public view.

Around 8:00 p.m. on July 3, 2016, Plaintiff and a friend went to the backyard near Lincoln and California streets. Approximately twenty minutes later, while holding the flag by a pole, Plaintiff applied a small amount of lighter fluid to the bottom of the flag and lit it with a match. As the flame caught the bottom of the flag and started to burn, Plaintiff's friend used Plaintiff's cellular telephone to take pictures of Plaintiff holding the burning flag.

After the flag was completely consumed by the flames, the fire extinguished itself. The fire only burned the flag and touched nothing else in the yard. Plaintiff and his friend confirmed that the fire was completely extinguished before leaving the yard. Plaintiff does not believe anyone besides his friend saw him burn the flag. The police did not receive any calls or complaints form anyone who had directly viewed Plaintiff burning the flag.

Soon after burning the flag, Plaintiff posted six photographs of himself holding the burning flag to his Facebook page. Along with the photographs, Plaintiff posted the following caption:

I am not proud to be an American. In this moment, being proud of my country is to ignore the atrocities committed against people of color, people living in poverty, people who identify as women, and against my own queer community on a daily basis. I would like to one day feel a sense of pride toward my nationality again. But too little progress has been made. Too many people still suffer at the hands of politicians influenced by special interests. Too many people are still being killed and brutalized by a police force plagued with authority complexes and racism. Too many people are allowed to be slaughtered for the sake of gun manufacturer profits. Too many Americans hold hate in their hearts in the name of their religion, and for fear of others. And that's only to speak of domestic issues. I do not have pride in my country. I am overwhelmingly ashamed, and I will demonstrate my feelings accordingly. #ArrestMe."

After posting the photos and caption, Plaintiff received comments from others throughout the night. Plaintiff responded to some of the comments and, at times, reminded those commenting to be respectful when reacting to his post. Plaintiff claims that his protest and subsequent Facebook post were meant to express his personal views about events in America. Plaintiff had no intention of inciting violence with his post. After responding to several comments, Plaintiff went to bed around 11:00 p.m. on July 3, 2016.

When Plaintiff awoke around 5:00 a.m. on the morning of July 4, 2016, he had received approximately 200 comments in response to his flag-burning post. Around 6:30 a.m., Plaintiff reported to work at Walmart on South Dunlap Street in Savoy, Illinois. At the staff meeting that morning, Plaintiff's supervisor, Chris Hundley, announced that any Walmart employee contacted by the media was to transfer the call to Walmart's corporate headquarters. Around the time of the meeting, Hundley called METCAD, the public communications center for Champaign County, Illinois, regarding alleged threats made by unknown people towards Plaintiff and the Savoy Walmart.

Plaintiff alleges that, at approximately 7:00 a.m. on July 4, 2016, Defendant Hale looked at the Illinois General Assembly website and determine that the Illinois flag desecration statute was still in effect. Hale decided to enforce the statute. Defendant Charles was made aware of Hale's conclusion and approved the decision to enforce the flag desecration statute. At 7:48 a.m., Defendant's Sprague, Hale, and McElhoe were dispatched through METCAD to investigate a complaint that someone had burned a flag and was receiving death threats.

While the officers were en route to Plaintiff's home, Sprague learned that Hundley had called METCAD asking for an officer to call him back. Sprague called Hundley and, after speaking with him, asked to speak with Plaintiff. Plaintiff told Sprague that he had posted the pictures of himself burning a flag on Facebook because he wanted to engage in a peaceful protest over the serious issues of police brutality, welfare, and income inequality. Plaintiff emphasized that he had no intention of upsetting people. Sprague asked Plaintiff where the flag burning had occurred, and Plaintiff informed him of the location. While Sprague spoke with Plaintiff, McElhoe drove to the location.

Sprague told Plaintiff to take down his Facebook post to protect his own and his coworkers' welfare. Plaintiff responded that, if the post had already been shared as widely as the officers had stated, removing his original post would not stop people from continuing to view and share the post. Sprague then discontinued the call.

Upon arriving at the backyard at Lincoln and California Streets, Sprague, Hale, and McElhoe found a pile of burnt ashes and a metal pole. Sprague took possession of the pole. Thereafter, the officers went to the Savoy Walmart to speak with Plaintiff in person.

Between 8:30 a.m. and 9:00 a.m., Sprague, Hale, and McElhoe arrived at the Savoy Walmart. Once there, Hundley escorted the officers to a back office and asked Plaintiff to speak with them. Plaintiff agreed to do so. Plaintiff told the officers that he burned the flag and placed photos of himself burning it on Facebook to protest the blind nationalistic approach to foreign and domestic issues. Sprague asked Plaintiff a series of questions about whether anyone had viewed or could have viewed him burning the flag. Plaintiff responded that it could have been possible to view the burning from Lincoln Avenue through a narrow three-foot passage between homes.

Sprague then placed Plaintiff under arrest and orally informed him of his rights under Miranda v. Arizona. Plaintiff was handcuffed by Sprague, who then searched Plaintiff and charged him with violating Illinois' flag desecration statute. The police report also mentions disorderly conduct as an offense, but the report is not clear about whether Plaintiff was actually charged with this offense.

Sprague, Hale, and McElhoe walked Plaintiff out of Walmart in handcuffs. At least four coworkers and ten customers witnessed their departure. Sprague then transported Plaintiff to the Champaign County Jail and left in him the custody of the corrections officers. Plaintiff was held with at least ten other detainees for approximately five hours. Plaintiff had never been arrested before and felt frightened, lost, shocked, and anxious.

Around 11:00 a.m. Charles notified Lieutenant Joel Sanders of Plaintiff's arrest. Sanders discussed the incident with the State's Attorney's Office. The State's Attorney's Office completed research regarding the constitutionality of the statute around 2:00 p.m. Thereafter, Sanders asked Charles and Sprague to release Plaintiff on a Notice to Appear. Around 2:09 p.m., Charles and Sprague went to the Champaign County Jail and issued Plaintiff a Notice to Appear. Plaintiff was released.

On July 5, 2016, Champaign County State's Attorney Julia Rietz announced that Plaintiff would not be charged under the Illinois flag desecration statute, noting that the Supreme Court of the United States has held that flag burning is protected free speech. Between July 4 and July 8, Sanders also concluded that Plaintiff's conduct did not meet the elements of assault, disorderly conduct, mob action, inciting a riot, or harassment through electronic means.

Plaintiff filed the instant lawsuit on January 1, 2017. In his complaint, Plaintiff alleged that Defendants violated his First and Fourth Amendment rights under the United States Constitution, as well as his rights under Article 1 Sections 4 and 6 of the Illinois Constitution. On March 27, 2017, Defendants filed a Motion to Dismiss (# 25). Plaintiff's response to the motion was filed on April 10, 2017. Defendants' motion is fully briefed and ready to be ruled on.

ANALYSIS

I. Motion to Dismiss Standard

A motion to dismiss serves to test the sufficiency of the complaint, not to decide the merits of the case. See AnchorBank, FSB v. Hofer , 649 F.3d...