2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 1 of 15 Pg ID 1

Transcription

1 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 1 of 15 Pg ID 1 BETH DELANEY, IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Plaintiff, Case No. v. Hon. CITY OF BIRMINGHAM, a Michigan municipal corporation; Birmingham Police Officer MATTHEW BALDWIN, in his individual capacity; and Birmingham Police Officer ULRICH SCHWARZ in his individual capacity, Defendants. / Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI (313) dkorobkin@aclumich.org msteinberg@aclumich.org Christine A. Hopkins (P76264) Jennifer L. Lord (P46912) Howard S. Weisel (P72932) Cooperating Attorneys, American Civil Liberties Union Fund of Michigan Sterling Attorneys at Law, P.C. 33 Bloomfield Hills Pkwy., Ste. 250 Bloomfield Hills, MI (248) chopkins@sterlingattorneys.com Attorneys for Plaintiff / COMPLAINT AND JURY DEMAND

2 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 2 of 15 Pg ID 2 Plaintiff Beth Delaney, by her attorneys, brings this Complaint for damages and declaratory and injunctive relief against the City of Birmingham, Birmingham Police Officer Matthew Baldwin, and Birmingham Police Officer Ulrich Schwarz for the reasons that follow: INTRODUCTORY STATEMENT 1. Plaintiff Beth Delaney brings this federal civil rights action to protect the First Amendment rights of political activists in the City of Birmingham. 2. Political activists have a right to peacefully exercise their First Amendment rights without fear of arrest, prosecution, retaliation, and interference by the police. 3. Plaintiff and other political activists have attempted to peacefully exercise their First Amendment rights by holding signs and distributing literature on public sidewalks in the City of Birmingham. 4. The City of Birmingham s police department has violated the First Amendment rights of political activists by threatening, dispersing, citing, and arresting activists who hold signs and distribute literature on city sidewalks. 5. On December 15, 2012, City of Birmingham police officers arrested Plaintiff and charged her with a crime for peacefully exercising her right to hold a sign and distribute literature about animal cruelty on a city sidewalk. 6. The police officers who arrested Plaintiff told her that to demonstrate on a public sidewalk, she had to keep moving and not stand in one place. 7. There is no state law or local ordinance that requires persons or protestors to keep moving on a public sidewalk. 8. The First Amendment protects plaintiff s right to engage in expressive activity while standing in one place on a public sidewalk. 2

3 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 3 of 15 Pg ID 3 9. The City of Birmingham police department has engaged in a practice and custom of forcing political activists to continuously move up and down city sidewalks, upon penalty of citation and arrest, even though the city s loitering ordinance contains no keep moving requirement. 10. The City of Birmingham police department has engaged in a practice and custom of misusing the city s loitering ordinance to disperse, cite and/or arrest political activists who stand on city sidewalks to display signs and distribute literature. 11. The City of Birmingham has failed to train its police officers that the loitering ordinance only criminalizes the intentional obstruction of pedestrian or vehicular traffic or the entrance to a business establishment, and not peaceful political activities on a public sidewalk. 12. The City of Birmingham police department has failed to train its police officers that political activists have a First Amendment right to peacefully stand in one place on a city sidewalk to display signs, distribute literature, and hold conversations. 13. Plaintiff seeks declaratory and injunctive relief to stop the City of Birmingham from interfering with the First Amendment rights of peaceful political activists, as well as damages for the violation of her rights under the First, Fourth and Fourteenth Amendments to the United States Constitution. JURISDICTION AND VENUE 14. Jurisdiction is proper under 28 U.S.C and 1343 because this is a civil action seeking redress for the deprivation of rights secured by the United States Constitution. 15. Venue is proper under 28 U.S.C. 1391(b)(2) because the events giving rise to the claims asserted occurred in Oakland County, which is within the Eastern District of Michigan. 3

4 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 4 of 15 Pg ID 4 PARTIES 16. Plaintiff Beth Delaney is a 38-year-old resident of Ferndale, Michigan. She is a political activist dedicated to ending animal cruelty. 17. Defendant City of Birmingham is a municipal corporation located in Oakland County and organized under the laws of the State of Michigan. The Birmingham Police Department is a division or department of the City of Birmingham. 18. Defendant Matthew Baldwin is, or was at all times relevant to this Complaint, a police officer employed by the City of Birmingham Police Department. Upon information and belief, he resides within the Eastern District of Michigan. Defendant Baldwin is being sued in his individual capacity. 19. Defendant Ulrich Schwarz is, or was at all times relevant to this Complaint, a police officer employed by the City of Birmingham Police Department. Upon information and belief, he resides within the Eastern District of Michigan. Defendant Schwarz is being sued in his individual capacity. STATEMENT OF FACTS 20. Beth Delaney s involvement in animal rights advocacy began over twenty years ago when she joined an animal rights group, Humanitarians for Animal Rights Education ( HARE ), and began following a vegan diet. 21. In 2005, Delaney joined the Southeast Michigan Animal Rights Team ( SMART ). 22. Delaney educates the public about animal rights and the cruelty involved in making and selling fur garments by participating in protests, demonstrations, and other SMART activities. 4

5 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 5 of 15 Pg ID Delaney took part in her first protest outside of Ceresnie & Offen, a business establishment located in downtown Birmingham that sells animal furs, nearly twenty years ago. 24. Prior to December 15, 2012, Delaney never had any problems with police, security guards, or members of the general public while demonstrating or distributing literature. 25. However, Birmingham police officers have often warned other protesters, including SMART members, for standing still and failing to keep moving along the sidewalk, even if they are not blocking the sidewalk or the entrance to a business. 26. On December 15, 2012, SMART arranged for a few of its members, including Delaney, to hold signs and distribute informational pamphlets on the public sidewalk outside of Ceresnie & Offen. 27. Delaney arrived at the SMART protest around 2:00 p.m. 28. Delaney stood on the public sidewalk outside Ceresnie & Offen holding a sign that depicted two bunny rabbits and the slogan Fur Kills; Don t Buy It. 29. While standing on the public sidewalk, Delaney also handed out Humane Society pamphlets containing information about animal cruelty. 30. For approximately 45 minutes, Delaney and a few other SMART members peacefully held signs and distributed literature on the public sidewalk outside Ceresnie & Offen. 31. During this time Delaney was never asked by any store employee, security guard, or other officer to leave the premises. 32. Delaney and the other SMART protesters did not block pedestrian traffic or obstruct access to or from the Ceresnie & Offen store or any other business establishment. 33. At approximately 2:40 p.m. a Ceresnie & Offen store employee called the police to report that protesters were in front of the store. 5

6 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 6 of 15 Pg ID The employee who contacted the police did not report any interference with access to or from the store, any interference with pedestrian traffic in front of the store, or any type of violence or disturbance. 35. In response to the call, City of Birmingham Police Officers Mathew Baldwin and Ulrich Schwarz observed the protest remotely from a surveillance camera at the police station s dispatch office. 36. The officers saw on the surveillance camera that the SMART members were peacefully holding signs and distributing literature on the public sidewalk. 37. The officers saw on the surveillance camera that pedestrian traffic was flowing freely past the SMART members as they held their signs and distributed literature. 38. After viewing the protest remotely from the police station, Officers Baldwin and Schwarz arrived in front of the Ceresnie & Offen store. 39. Officers Baldwin and Schwarz ordered Delaney and other SMART members to leave the area immediately. 40. Officer Baldwin told Delaney and other SMART members that he did not give warnings and would issue them criminal citations if they did not leave the area immediately. 41. To explain why they were ordering Delaney and other SMART protesters to leave, Officers Baldwin and Schwarz stated that Delaney had remained stationary and had failed to keep moving along the sidewalk. 42. Two SMART members including one who used crutches due to a mobility impairment - responded to the police officers threat by leaving. 6

7 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 7 of 15 Pg ID The officers told one SMART member, who was wearing a Santa costume, that he could continue protesting because he had walked continuously up and down the sidewalk during the protest. 44. Delaney told the officers that she believed she had a right to protest on the public sidewalk, and she even promised to keep moving along the sidewalk like the other SMART protester who was permitted to stay. 45. Officer Baldwin then informed Delaney that he was going to issue her a citation. 46. In response to Officer Baldwin s statement, Delaney told the officers that she would leave. 47. Officer Baldwin did not allow Delaney to leave. 48. Officer Baldwin asked Delaney for her driver s license. 49. Delaney told the officer she did not have her driver s license with her. 50. Officer Baldwin then asked Delaney for her name. 51. Delaney remained silent. 52. Officer Baldwin then handcuffed Delaney. 53. Officer Baldwin led Delaney, in handcuffs, and in front of onlookers, to a police squad car that had arrived in front of the store. 54. Delaney was transported in handcuffs in the police squad car to the Birmingham police station. 55. Delaney was detained in a small room at the police station for nearly half an hour. 56. Officer Schwarz eventually informed Delaney that he and Officer Baldwin were going to issue her a citation and release her. 57. Officer Baldwin issued Delaney a citation for loitering. 7

8 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 8 of 15 Pg ID The written citation described Delaney s offense as miscellaneous misdemeanor loitering (b)(3), and its remarks section states: stand in front of business w/o moving or consent. 59. The City of Birmingham s loitering ordinance is codified at (b)(3) of the city code. Subsection (b)(3) of that ordinance provides: It shall be unlawful for any person within the city to loiter, loaf, wander, stand or remain idle either alone or in consort with others in a public place in such manner so as to:... Obstruct the entrance to any business establishment, without so doing for some lawful purpose, if contrary to the expressed wish of the owner, lessee, managing agent, or person in control or charge of the building or premises. 60. Delaney, however, was not obstructing the entrance to the Ceresnie & Offen fur store or any other business establishment. 61. As a result of the arrest, Delaney was forced to endure the embarrassment, humiliation, and fear of being handcuffed and placed in a police car on a public street in front of numerous pedestrians, and detained at the police station. 62. Following the arrest, criminal charges were instituted against Delaney for misdemeanor loitering. charges. 63. Delaney was required to appear in court and defend against frivolous criminal 64. The criminal charges remained pending against Delaney for over a month until they were ultimately dismissed on January 23, The City of Birmingham police department has a practice and custom of misusing the city s loitering ordinance to threaten, disperse, cite and arrest political activists who are not in fact violating the ordinance. 8

9 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 9 of 15 Pg ID The City of Birmingham police department has a practice and custom of requiring political activists to keep moving up and down public sidewalks while protesting, demonstrating, or leafleting. 67. The language of the city s loitering ordinance, however, contains no requirement that persons on city sidewalks keep moving at all times. 68. On information and belief, the City of Birmingham police department does not threaten, disperse, cite, or arrest shoppers, Christmas carolers, and other pedestrians for standing in one place on city sidewalks. 69. Delaney wishes to continue her protest activities on public sidewalks in the City of Birmingham. However, the city s practice and custom has chilled Delaney s exercise of her First Amendment rights because she fears that she will be ordered to leave, threatened with arrest, or arrested if she returns to the city s public sidewalks to display signs or distribute literature about animal cruelty but does not keep moving at all times. COUNT ONE VIOLATION OF THE FIRST AMENDMENT RIGHT TO FREEDOM OF SPEECH (RIGHT TO HOLD SIGNS AND DISTRIBUTE LEAFLETS IN A PUBLIC FORUM) 70. Plaintiff re-alleges and incorporates by reference the allegations contained in the previous paragraphs of her Complaint as if fully set forth herein. 71. The First Amendment to the United State Constitution prohibits abridgement of the freedom of speech. Amendment. 72. The First Amendment is incorporated against the states by the Fourteenth 73. The First Amendment protects the right of individuals to engage in expressive conduct, carry signs, and distribute informative literature on public sidewalks. 9

10 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 10 of 15 Pg ID Under 42 U.S.C. 1983, every person acting under color of state law who deprives another person of his or her constitutional rights is liable at law and in equity. 75. Defendants Baldwin and Schwarz acted under color of state law when they: a. ordered Delaney to stop her peaceful protest and leave the city sidewalk; b. threatened Delaney with a criminal citation if she did not leave the sidewalk; c. handcuffed Delaney and removed her from the sidewalk; d. transported Delaney to the police station in a police squad car; e. detained Delaney in a small room in the city police station; and f. issued Delaney a misdemeanor citation for loitering. 76. In so acting, defendants Baldwin and Schwarz violated Delaney s clearly established First Amendment right to freely express her political views on a public sidewalk. 77. Under 42 U.S.C. 1983, municipal defendants are persons liable for unconstitutional practices, customs, and policies, and failure to train their law enforcement officers. 78. Defendant City of Birmingham has an unconstitutional practice, custom, or policy of misusing the city s loitering ordinance to curtail the free speech of political activists. 79. The practice, custom or policy of the City of Birmingham directly resulted in the violation of Delaney s First Amendment rights and continues to chill her exercise of those rights. 80. Defendant City of Birmingham failed to train its officers about the First Amendment rights of political activists and that the loitering ordinance does not (and cannot) criminalize peaceful political activities and expressions of speech. 81. The City of Birmingham s failure to train its officers directly resulted in the violation of Delaney s First Amendment rights and continues to chill her exercise of those rights. 10

11 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 11 of 15 Pg ID As a result of the violation of her First Amendment rights by Defendants City of Birmingham, Baldwin, and Schwarz, Delaney suffered and continues to suffer actual harm including interference with her First Amendment rights, the chilling of her freedom of speech, the deprivation of her liberty, fear, humiliation, and embarrassment. COUNT TWO VIOLATION OF THE FIRST AMENDMENT RIGHT TO FREEDOM OF SPEECH (RETALIATION) 83. Plaintiff re-alleges and incorporates the allegations contained in the previous paragraphs of her Complaint as if fully set forth herein. 84. The freedom to express disagreement with a police officer without fear of reprisal based on that expression is protected by the First Amendment. 85. Delaney was the only SMART protestor to explain to the defendant officers her right to remain on the public sidewalk. 86. Delaney was the only SMART protestor to ask the defendant officers to allow her to continue her protest on the public sidewalk after being ordered to disperse. officers. 87. Delaney was the only SMART protestor arrested and cited by the defendant 88. Defendants Baldwin and Schwarz, acting under color of state law, violated Delaney s clearly established First Amendment right to be free from retaliation for exercising her protected free speech rights when they arrested her and charged her with misdemeanor loitering. a. Defendants decision to arrest and charge her with a crime was motivated, at least in part, by the fact that Delaney questioned their authority to curtail her constitutional right to express her opinions on a public sidewalk. 11

12 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 12 of 15 Pg ID As a result of the violation of her First Amendment rights by the City of Birmingham, Defendant Baldwin, and Defendant Schwarz, Delaney suffered actual harm including interference with her First Amendment rights, the chilling of her freedom of speech, the deprivation of her liberty, fear, humiliation, and embarrassment. COUNT THREE VIOLATION OF THE FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES (DETENTION WITHOUT REASONABLE SUSPICION/PROBABLE CAUSE) 90. Plaintiff re-alleges and incorporates the allegations contained in the previous paragraphs of her Complaint as if fully set forth herein. 91. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Amendment. 92. The Fourth Amendment is incorporated against the states by the Fourteenth 93. Defendants Baldwin and Schwarz, acting under color of state law, violated Delaney s clearly established right to be free from unreasonable seizures by detaining her without reasonable suspicion and arresting her without probable cause that she had committed any offense. 94. Defendant City of Birmingham had an unconstitutional practice, custom, or policy of misusing the city s loitering ordinance to detain and arrest political activists for peaceful protests that did not violate the city s loitering ordinance. 95. The practice, custom or policy of the City of Birmingham directly resulted in the violation of Delaney s Fourth Amendment rights. 12

13 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 13 of 15 Pg ID Defendant City of Birmingham failed to train its officers about the First Amendment rights of political activists and that the loitering ordinance does not (and cannot) criminalize peaceful political activities and expressions of speech. 97. The City of Birmingham s failure to train its officers directly resulted in the violation of Delaney s Fourth Amendment rights. 98. As a result of the violation of her Fourth Amendment rights by the City of Birmingham, Defendant Baldwin, and Defendant Schwarz, Delaney suffered actual harm including interference with her First Amendment rights, the chilling of her freedom of speech, the deprivation of her liberty, fear, humiliation, and embarrassment. COUNT FOUR VIOLATION OF THE FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES (MALICIOUS PROSECUTION) 99. Plaintiff re-alleges and incorporates the allegations contained in the previous paragraphs of her Complaint as if fully set forth herein The Fourth Amendment to the United States Constitution prohibition of unreasonable seizures encompasses the right to be free from malicious prosecution Officers Baldwin and Schwarz, acting under color of state law, violated Delaney s clearly established right to be free from unreasonable seizures by unlawfully causing a criminal prosecution to be instituted against her The City of Birmingham was the plaintiff in the criminal prosecution There was no probable cause for the prosecution Delaney suffered a deprivation of liberty The criminal proceeding ended in Delaney s favor. 13

14 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 14 of 15 Pg ID As a result of the violation of her Fourth Amendment rights by the City of Birmingham, Defendant Baldwin, and Defendant Schwarz, Delaney suffered actual harm including interference with her First Amendment rights, the chilling of her freedom of speech, the deprivation of her liberty, fear, humiliation, and embarrassment. REQUEST FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court: a. assert jurisdiction over this matter; b. declare that Defendants violated Delaney s rights under the First, Fourth, and Fourteenth Amendments; c. declare that the City of Birmingham s loitering ordinance does not require protesters on a public sidewalk to keep moving when they are not impeding pedestrian traffic or obstructing the entrance to any business establishment; d. declare that requiring protesters on a public sidewalk to keep moving violates the First Amendment; e. declare that Defendant City of Birmingham s practice and custom of misusing the city s loitering ordinance against peaceful political activists is unconstitutional; f. enjoin Defendants from requiring Delaney and other activists to keep moving while protesting and distributing literature; g. enjoin Defendants from citing and arresting Delaney and other activists who peacefully stand on public sidewalks to protest, hold signs, and distribute literature when their conduct does not impede pedestrian traffic or obstruct the entrance to any business establishment; 14

15 2:13-cv SJM-LJM Doc # 1 Filed 07/25/13 Pg 15 of 15 Pg ID 15 h. award Delaney compensatory damages for the violation of her constitutional rights; i. award Delaney costs and a reasonable attorney s fee pursuant to 42 U.S.C. 1988; and j. grant or award other such relief as this Court deems just and proper. JURY DEMAND Plaintiff Beth Delaney requests a trial by jury. Dated: July 25, 2013 Respectfully submitted, /s/ Christine A. Hopkins Christine A. Hopkins (P76264) Jennifer L. Lord (P46912) Howard S. Weisel (P72932) Cooperating Attorneys, American Civil Liberties Union Fund of Michigan Sterling Attorneys at Law, P.C. 33 Bloomfield Hills Pkwy., Ste. 250 Bloomfield Hills, MI (248) chopkins@sterlingattorneys.com /s/ Daniel S. Korobkin Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI (313) dkorobkin@aclumich.org msteinberg@aclumich.org 15