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Brandt v. City of Westminster

United States District Court, D. Colorado

March 19, 2018

ERIC BRANDT, Plaintiff,
THE CITY OF WESTMINSTER, COLORADO, municipality; CHARLES RUSH, in his official and individual capacity; RAY ESSLINGER, in his official and individual capacity; Defendants.



         Now before the Court in this civil rights case are the parties' cross-motions for summary judgment, including Plaintiff's Motion for Summary Judgment (ECF No. 37) and Defendants' Combined Motion for Summary Judgment (ECF No. 39). As explained below, Defendants' Motion is granted in part, and Plaintiff's Motion is denied.


         Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. In ruling on summary judgment, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).


         The following facts are undisputed unless attributed otherwise.

         On the morning June 6, 2014, Plaintiff Eric Brandt (“Brandt”) was walking along sidewalks in Westminster, Colorado, displaying a sign which he describes as “a gigantic Styrofoam middle finger emblazoned with the letters ‘Fuck cops.'” (ECF No. 37 at 7 ¶¶ 32-34; ECF No. 47 at 6-7, ¶¶ 32-34; ECF No. 37-5 at 4-5.)[1] This behavior was in keeping with Brandt's conduct on numerous other occasions; as pled in Brandt's Complaint, “wherever Mr. Brandt goes in Westminster, he carries a very large, handmade sign that reads ‘Fuck Cops.'” (ECF No. 1 ¶ 12.) According to Brandt, he does this to protest police misconduct, and particularly misconduct by the Westminster Police Department (“WPD”) .

         On the morning in question, for approximately 30 minutes after leaving his apartment, Brandt was, in his words, “engaging the public” with his sign. (ECF No. 37-5 at 4, 13.) Some members of the public, however, were less than thrilled. According to WPD records, at least three separate callers reported Mr. Brandt to the police. As reflected in WPD's report (ECF No. 37-3) and in the audio recording of calls to WPD and WPD dispatch communications (see ECF Nos. 38, 40, 37-4), several civilians reported Brandt's sign and conduct as “offensive, ” “disgusting, ” and in similar terms.

         The lead investigating officer responsible for taking statements from these complaining witnesses was non-party Officer William Carnes. (ECF No. 39 at 5, ¶ 10.) Based on the calls and complaints received, WPD dispatched Sergeant Raymond Esslinger and Officer Charles Rush, both Defendants here. Sergeant Esslinger, who knew Brandt from prior interactions, first contacted Brandt at the intersection of 76th Avenue and Sheridan Boulevard at approximately 8:38 a.m., and Officer Rush arrived a few minutes later. (See ECF No. 37-3 at 7.)

         While Sergeant Esslinger and Officer Rush were speaking with Brandt, Officer Carnes took statements from the complaining witnesses. (ECF No. 39 at 5, ¶ 10; ECF No. 43 at 5, ¶ 10.) After he “learned through Officer Carnes that probable cause for the charge of Disorderly Conduct existed” (ECF No. 37-3), Officer Rush served Brandt with a citation for disorderly conduct in violation of Westminster Municipal Code § 6-2-1(A)(1). (See id.) Brandt protested being arrested and taken into custody, and requested that he instead be issued a summons to later appear. (See ECF No. 37-5 at 14.) Esslinger and Rush agreed to this, after which, Brandt, in his own words, “boldly carried [his] sign down the street to [his] house.” (Id. at 16.) In total, Brandt's interaction with Esslinger and Rush lasted approximately thirty minutes. (ECF No. 37 at 3, ¶ 1; ECF No. 47 at 3, ¶ 1.)[2] The disorderly conduct charge against Brandt was eventually dismissed. (ECF No. 39 at 6, ¶ 19; ECF No. ECF No. 37-5 at 17.)

         III. ANALYSIS

         Brandt brings six claims against Defendants:

(I) a claim brought under 42 U.S.C. § 1983 for violation of his First Amendment right to free speech;
(II) a § 1983 claim for retaliation against Brandt for exercise of his First Amendment rights;
(III) a facial challenge that Section 6-2-1(A)(1) is unconstitutionally overbroad in violation of the First Amendment;
(IV) a facial challenge that Section 6-2-1(A)(1) is unconstitutionally void for vagueness, under the Fourteenth Amendment;
(V) a § 1983 claim for violation of Brandt's Fourth Amendment rights by way of an unlawful search and/or seizure; and,
(VI) a § 1983 claim for malicious prosecution in violation of the Fourteenth Amendment.

(ECF No. 1 ¶¶ 42-93.)

         Defendants move for summary judgment against all of these claims, while Brandt affirmatively moves for summary judgment in his favor on his first, third, and fourth claims (i.e., his facial and as-applied First Amendment claims, but not his claims for retaliation, violation of his Fourth Amendment rights, or malicious prosecution.) The Court addresses each of these claims in turn, but in a different sequence than as pled, given the interrelated analysis of the issues raised.

         A. Brandt's Facial Challenges to Section 6-2-1(A)(1)

         Brandt argues that Section 6-2-1(A)(1) is unconstitutional both because it is overbroad in violation of the First Amendment and void for vagueness in violation of the Fourteenth Amendment. The parties filed cross-motions for summary judgment on these claims, each side arguing it is entitled to judgment as a matter of law.

         1. Standing

         The Supreme Court has long recognized that a criminal defendant may bring a facial challenge against statute or ordinance under which he or she is charged, even if the statute would not be invalid as applied to his or her own conduct. See Gooding v. Wilson, 405 U.S. 518 520-22 (1972) (“Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others * * * since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights.” (quoting Coates v. City of Cincinnati, 402 U.S. 622, 619-20 (White, J., dissenting)); see also Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003) (“the significance of First Amendment rights” ... “justif[ies] a lessening of prudential limitations on standing. The mere threat of prosecution . . . may have a ‘chilling' effect”).

         Likewise, a person charged with a speech-related crime may bring a § 1983 claim, even after criminal charges are dismissed. See Ward, 321 F.3d at 1264.

In the First Amendment context, two types of injuries may confer Article III standing to seek prospective relief. First, a plaintiff generally has standing if he or she alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and there exists a credible threat of prosecution thereunder. Plaintiffs may have standing even if they have never been prosecuted or actively threatened with prosecution. Second, although allegations of a ‘subjective' chill are not adequate, a First Amendment plaintiff who faces a credible threat of future prosecution suffers from an ongoing injury resulting from the statute's chilling effect on his desire to exercise his First Amendment rights.

Id. at 1267 (internal quotation marks and citations omitted).

         On the facts and record here, the Court is satisfied that Brandt has a demonstrated intention to engage in future speech or conduct essentially identical to that for which he was charged here, that he faces a credible threat of future prosecution for such conduct, that this threat is “real and immediate” for standing purposes, and that Brandt has sufficiently demonstrated “continuing, present adverse effects in the form of the chilling of his First Amendment rights.” See Id. at 1269.

         2. Overbreadth

         a. Legal Framework

         “The First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech.'” United States v. Stevens, 559 U.S. 460, 468 (2010). Thus, “[a]s a general matter . . . [the] government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Id. (internal quotation marks omitted). Because Section 6-2-1(A)(1) of the Westminster Municipal Code regulates speech based on content, the Court starts by viewing that restriction as “presumptively invalid, ” and Defendants bear the burden of rebutting that presumption. Stevens, 559 U.S. at 468 (citing United States v. Playboy Enter. Grp., Inc., 529 U.S. 803, 817 (2000)).

         However, the First Amendment does “permi[t] restrictions upon the content of speech in a few limited areas, ” which the Supreme Court has described as “historic and traditional categories.” Stevens, 559 U.S. at 468. These include regulation of obscenity, defamation, fraud, incitement, and “speech integral to criminal conduct.” Id. The Supreme Court has described these as “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Id. (quoting Chaplinsky v. N.H., 315 U.S. 568, 571-72 (1942)). As most relevant here, the First Amendment does not prohibit the restriction or criminalization of “‘fighting words'-those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Chaplinsky, 315 U.S. at 572.

         When statutes or ordinance seek to regulate speech within these permitted areas, the restrictions “must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” Gooding, 405 U.S. at 523 (internal quotation marks omitted); id. at 528 (statutes ostensibly criminalizing only “fighting words” must “define the standard of responsibility with requisite narrow specificity”). Accordingly, “[i]n the First Amendment context . . . a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Stevens, 559 U.S. at 473.

         To prevail on an overbreadth challenge, a plaintiff must “show that the potential chilling effect on protected expression is ‘both real and substantial.'” United States v. Brune, 767 F.3d 1009, 1018 (10th Cir. 2014) (quoting Erznozik v. City of Jacksonville, 422 U.S. 205, 216 (1975)). “Finding some overbreadth only satisfies part of the inquiry, as the challenger must also show that the law punishes a ‘substantial' amount of protected free speech, ‘judged in relation to the statute's plainly legitimate sweep.'” Id. (emphasis in original; internal quotation to Broadrick v. Okla., 413 U.S. 601, 615 (1973) and other internal quotation marks omitted). “The Supreme Court has ‘vigorously enforced the requirement that a statute's overbreadth be substantial in both absolute and relative terms.” Brune, 767 F.3d at 1018 (emphasis in original; quoting United States v. Williams, 553 U.S. 285, 292 (2008)).

         Thus, “even where a fair amount of constitutional speech is implicated, [the Court] will not invalidate the statute unless significant imbalance exists[.]” Brune, 767 F.3d at 1018 (emphasis in original; internal quotation marks omitted). This analysis recognizes “legitimate interests in maintaining comprehensive controls over harmful constitutionally unprotected conduct” and the “social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech.” Id. (quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003); alterations incorporated). Generally speaking, facial challenges have been described as “disfavored, ” as “strong medicine” to be “employed sparingly and only as a last resort, ” and “best when infrequent.” Brune, 767 F.3d at 1019 (internal quotation marks omitted).[3]

         b. Limiting Construction & Application of Section 6-2-1(A)(1)

         “The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Williams, 553 U.S. at 293. Where a state statute-or, as here, a municipal ordinance-is challenged, “[o]nly the [state] courts can supply the requisite construction, ” since the federal courts “lack jurisdiction authoritatively to construe state legislation.” Gooding, 405 U.S. at 521; Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981) (state courts' construction of municipal code is controlling when determining if First Amendment is implicated).

         Section 6-2-1(A)(1) of the Westminster Municipal Code (“Section 6-2-1(A)(1)” or “the Ordinance”) prohibits disorderly conduct:

(A) It shall be unlawful for any person to commit disorderly conduct. A person commits disorderly conduct if he intentionally, knowingly or recklessly:
(1) Makes a coarse and obviously offensive utterance, gesture or display in a public place, and the utterance, gesture or display tends to incite an immediate breach of the peace, whether or not an actual breach of the peace takes place;

         This language is nearly identical to Colorado Revised Statutes § 18-9-106(1)(a), which also prohibits “a coarse and obviously offensive utterance, gesture or display” that “tends to incite an immediate breach of the peace:

(1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:
(a) Makes a coarse and obviously offensive utterance, gesture, or display in a public place and the utterance, gesture, or display tends to incite an ...

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