Sessler v. City of Davenport

102 F.4th 876

Cory SESSLER, Plaintiff - Appellant v. CITY OF DAVENPORT, IOWA; Greg Behning,in his individual capacity acting as a police officer for the City of Davenport, Iowa;Jason Smith, in his individual capacity actingas a police officer for the City of Davenport, Iowa; J.A. Alcala,in his individual capacity acting as a police officerfor the City of Davenport, Iowa, Defendants - Appellees

No. 22-3459

United States Court of Appeals, Eighth Circuit

Submitted: September 21, 2023

Filed: May 23, 2024

Appeal from United States District Court for the Southern District of Iowa - Eastern

Counsel who presented argument on behalf of the appellant was Nathan W. Kellum, of Memphis, TN. The following attorney(s) appeared on the appellant brief; Nathan W. Kellum of Memphis, TN and David J. Markese, of Orlando, FL.

Counsel who presented argument on behalf of the appellees City of Davenport, Greg Behning and Jason Smith was Jason J. O'Rourke, of Davenport, IA. The following attorney(s) appeared on the appellee brief of City of Davenport, Greg Behning and Jason Smith; Jason J. O'Rourke, of Davenport, IA. and Alexander Clement Barnett, of Davenport, IA. The following attorney appeared on the appellee brief of J.A. Alcala was Kevin L. Halligan, of Davenport, IA.

Before SMITH, Chief Judge,¹ MELLOY and ERICKSON, Circuit Judges.

MELLOY, Circuit Judge.

Plaintiff Cory Sessler and several associates loudly preached a religious message to passersby and shoppers inside a fenced-off, vendor-occupied area of downtown Davenport, Iowa (the City), during a secular, commercial festival. Vendors within the fenced-off area had entered into agreements with festival organizers to rent spaces or stalls to sell goods and food or to conduct performances. Mr. Sessler was not a paying vendor and had entered into agreements with neither festival organizers nor the City. The fenced-off area, consisting of City streets and sidewalks in the City center, undisputedly served as a "traditional public forum" under normal circumstances when fences were not erected. During the festival, however, vehicle traffic was excluded and pedestrian access was controlled but did not require the purchase of tickets.

After police officers and Mr. Sessler's group cooperatively attempted to find a mutually acceptable location for Mr. Sessler's group within the festival grounds, the group preached for approximately thirty minutes within the grounds and near an entrance. Then, in response to nearby vendors' complaints, officers ordered the group to relocate to a spot outside the fences and across a street. The group complied and continued to preach to, and interact with, passersby for over two hours.

Mr. Sessler later sued three officers invoking 42 U.S.C. § 1983 and alleging a violation of his free exercise and free speech rights under the First Amendment of the U.S. Constitution. He also sued the City of Davenport pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), alleging officers acted pursuant to an unconstitutional policy. Mr. Sessler moved for a preliminary injunction, which the district court denied. Our court affirmed. See Sessler v. City of Davenport, 990 F.3d 1150 (8th Cir. 2021).

After discovery, the district court² granted summary judgment to the defendants concluding the officers did not violate Mr. Sessler's rights and, in the alternative, qualified immunity applied. The district court also granted summary judgment to the City on the official-policy claims.

This case presents many challenging and close questions. As such, we agree that qualified immunity applies to the claims against the officers. It was not clear at the time of the events in this case whether the fenced-off City streets and sidewalks remained a "traditional public forum" or whether they served as a less-protected "limited public forum." Further, no reasonable trier of fact could conclude from the summary judgment record that the officers' actions were anything but content neutral or that such actions were unreasonable or otherwise restricted or diminished Mr. Sessler's access to his intended audience. In short, the officers in the present case acted within a gray area and transgressed no bright lines clearly established by existing caselaw. Finally, nothing about the City's general policy of permitting a private festival to take place impinged upon Mr. Sessler's rights. Accordingly, we affirm the judgment of the district court.

I.

In this appeal from a grant of summary judgment, we present the facts in the light most favorable to Mr. Sessler, the non-moving party. The facts are drawn largely from uncontested deposition testimony and from several body-cam videos of the events at issue. Street Fest was a commercial event held by a division of the Davenport Chamber of Commerce in conjunction with a popular foot race, the "Bix 7." Typically, tens of thousands of people participated in the race, and similar numbers attended Street Fest every year. Street Fest no longer takes place, but the annual Bix 7 race continues, and Mr. Sessler asserts other commercial events and festivals take place in and around Davenport at the same time.

In summer 2018, Davenport had in place a City Special Event Policy allowing events like Street Fest to take place on public land subject to City approval and a permitting process. Street Fest organizers applied for and obtained a permit subject to several requirements imposed by the City. Most importantly for the present case, the City allowed Street Fest organizers to limit access to several blocks of streets in the core downtown area subject to a requirement that organizers erect fencing and hire off-duty City police officers as security.

Organizers installed six-foot high chain link fences around the festival area, left open several points for unticketed pedestrian entry and exit, and hired officers as required. Vendors entered into contracts with the organizers to pay for spaces within the fenced-off area or to conduct business as "roaming vendors" within the area. The vendor contracts required the vendors to agree to limitations on their noise levels and their interference with other vendors.

During the festival, Mr. Sessler, three other adults, and two children entered the fenced-off area, positioned themselves in a first location, and began loudly sharing their religious message using a microphone, a loudspeaker, and signs on extendible poles. The children distributed pamphlets. The group neither applied for nor entered into a vendor contract with the Street Fest organizers.

Defendant Officer Smith and a festival organizer told the group they were in a vendor-rented spot. Defendant Officers Alcala and Behning joined Officer Smith and asked the group to move to a different location. Interactions between the officers and Mr. Sessler were calm and seemingly respectful. The officers and Mr. Sessler both referenced trying to find a compromise. Someone in Mr. Sessler's group suggested a different spot. Officer Smith rejected the suggestion because the spot was too close to where a performer was about to begin and Officer Smith did not think the group should be "on the microphone preaching over the top" of a vendor/performer. Officer Smith also rejected a second suggestion from Mr. Sessler's group, characterizing the spot as a traffic "choke point." Officer Smith offered as a third suggestion a courtyard within the fenced-off area adjacent to one of the streets, but stated, "If you're screaming over the top of vendors or impeding their point of sales at all, then we're going to have to fix that again."

Officer Alcala went with the group to the suggested courtyard, but the group and Officer Alcala could not agree upon a particular spot. The group suggested a location Officer Alcala rejected because it was rented to a vendor. Officer Alcala suggested a location the group rejected because it was blocked from clear public view by vendor tents. Eventually, Officer Alcala and the group agreed the group could preach from a location within the fenced-off area near one of the entrances.

At the entrance location, the group preached for approximately thirty minutes, during which time several vendors complained to festival organizers who, along with the vendors, complained to Officers Smith and Behning. Mr. Sessler later estimated that his own volume was such that pedestrians would have had to move at least thirty feet away from him to avoid his voice. The complaining vendors and organizers asserted that the group was blocking customers and driving customers away. One vendor stated, "He's telling my customers they're going to hell."

In response to the complaints, Officers Smith and Behning told the group to leave the fenced-off area and directed them to a location across the street from the entrance. Officer Smith told the group they would be arrested if they failed to move. The group moved to the indicated location and resumed preaching for over two hours to large crowds of passersby, many of whom were entering or exiting the fenced-off area. Many of these people engaged with Mr. Sessler's group. No one from Mr. Sessler's group had any additional interactions with the police after leaving the fenced-off area.

Several weeks later, Mr. Sessler contacted the City. An assistant City attorney told him she had reviewed the incident and found nothing unlawful. She also stated the Street Fest organizers controlled access to the area during the festival.

II.

We review the district court's grant of summary judgment de novo.³ Glover v. Bostrom, 31 F.4th 601, 603 (8th Cir. 2022) ("Summary judgment is appropriate when 'there is no genuine dispute as to any material fact.' " (quoting Fed. R. Civ. P. 56(a))). We draw reasonable inferences in Mr. Sessler's favor, but "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the...