Hershey v. Multi-Purpose Civic Center Facilities Board for Pulaski County, Arkansas

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

RICHARD HERSHEY PLAINTIFF

v. CASE NO. 4:18-CV-00476 BSM

MULTI-PURPOSE CIVIC CENTER

FACILITY BOARD FOR PULASKI

COUNTY, ARKANSAS, et al. DEFENDANTS

ORDER

The motion for summary judgment [Doc. No. 40] of defendants Marty Curtright and

the Multi-Purpose Civic Center Facility Board for Pulaski County, Arkansas (“the board”)

is granted.

Richard Hershey’s motion for leave to file a supplemental affidavit [Doc. No. 64] is

denied. The joint motion for summary judgment [Doc. No. 43] of defendants C. Davis,

Randy Flippin, and John P. Lyon is denied as moot because Davis, Flippin, and Lyon were

dismissed from this lawsuit. Doc. No. 63. Hershey’s claims against the John Doe defendants

are dismissed, and this case is dismissed.

I. BACKGROUND

Hershey is suing the Verizon Arena board and security officer Curtright for

constitutional violations. The undisputed facts are as follows.

The board was established by Pulaski County to operate the Verizon Arena, an

entertainment complex in North Little Rock, and its surrounding property. Brief in Support

of Mot. Summ. J. (“Br. Mot. Summ. J.”) at 2, Doc. No. 41. The board employs Curtright as

a security officer. Pl.’s Resp. Defs.’ F. (“Resp. Board F.”) ¶ 46, Doc. No. 51. The board’s

purpose is to lease the arena to outside groups for events and to make the surrounding

property accessible for event attendees. Resp. Board. F. ¶¶ 3–6. There are orange delineator

posts placed along Broadway Street that direct attendees toward the arena, in addition to

metal bollards, signs, and planters that surround the arena. Id. ¶ 8; Pl.’s Resp. Defs.’ F.

(“Resp. NLRPD F.”) ¶ 4, Doc. No. 53. There are public sidewalks adjacent to the arena. Id.

¶ 71.

Hershey is employed by non-profit organizations to distribute leaflets that endorse

vegetarianism. Id. ¶¶ 27–28. During the 2017 Winter Jam concert, which is attended by up

to 18,000 people, Hershey leafleted at the top of the ramp leading to the arena’s Broadway

entrance. Id. ¶¶ 35, 44, 48. Curtright told Hershey he could not leaflet there and that he had

to cross the street. Resp. Board F. ¶ 49; Resp. NLRPD F. ¶ 15. Hershey walked down the

ramp but refused to cross the street, so Curtright called 911, and North Little Rock police

officers responded. Resp. Board F. ¶¶ 51, 54, 56. Hershey refused to move when the

officers told him to, so the officers arrested him and transported him to the Pulaski County

Detention Center. Id. ¶¶ 55, 56; Resp. NLRPD F. ¶¶ 23–33.

During the 2018 Winter Jam concert, Hershey again handed out leaflets, and a security

officer told him that he could not leaflet on arena property. Resp. NLRPD F. ¶¶ 43–44.

Hershey refused to leave the sidewalk on the south side of Broadway, and the officer called

NLRPD officer Flippin, who was assigned to the Broadway crosswalk. Id. ¶¶ 44–46. The

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security officer told Flippin that attendees had complained about Hershey’s leafleting, and

Flippin told Hershey to move due to the heavy pedestrian traffic. Id. ¶¶ 49, 54. Hershey

eventually complied. Id. ¶¶ 59, 61.

II. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute as to any material

fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249–50 (1986). Once the moving party

demonstrates that there is no genuine dispute of material fact, the non-moving party may not

rest upon the mere allegations or denials in his pleadings. Holden v. Hirner, 663 F.3d 336,

340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence

demonstrating a genuine factual dispute requiring a trial. Id. All reasonable inferences must

be drawn in a light most favorable to the non-moving party. Holland v. Sam’s Club, 487

F.3d 641, 643 (8th Cir. 2007). The evidence is not weighed, and no credibility

determinations are made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).

III. DISCUSSION

A. John Doe Defendants

Hershey’s claims against the John Doe defendants are dismissed. Hershey never

sought leave to amend his complaint to name them after learning their identities through

defendants’ initial disclosures, Doc. No. 41 Ex. 2, and the deadline to do so has passed. Fed.

R. Civ. P. 16(b)(4).

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B. Marty Curtright

Summary judgment is granted on Hershey’s claims against Curtright because Curtright

is immune from suit. This is true because it was objectively reasonable for Curtright to

instruct Hershey to hand out leaflets across the street. Duhue v. City of Little Rock, Ark.,

2017 WL 1536231, at *20 (E.D. Ark. Apr. 27, 2017) (officer entitled to qualified immunity

when arresting protestors blocking access to an office building); see also Habiger v. City of

Fargo, 905 F.Supp. 709, 718–19 (D.N.D. Jan. 23, 1995) (officer entitled to qualified

immunity when removing demonstrator because it was reasonable to believe the

demonstrator interfered with abortion clinic access).

Government officials are immune from suit unless they violate clearly established

rights. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Immunity attaches even when a

government official makes a mistake of law or fact. Id. Summary judgment is proper, based

on qualified immunity, if a defendant, as a matter of law, could have reasonably believed that

his actions were lawful. Anderson v. Creighton, 483 U.S. 635, 641 (1987). Reasonableness

is judged from the perspective of a reasonable officer on the scene, rather than one with

20/20 hindsight. Wilson v. Spain, 209 F.3d 713, 716 (8th Cir. 2000).

C. First Amendment

Summary judgment is granted on Hershey’s First Amendment claim against the board

because the property surrounding the arena and the sidewalk on the south side of Broadway

are nonpublic forums during arena events.

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The First Amendment prohibits state actors from “abridging the freedom of speech,”

and the board is a state actor for First Amendment purposes. U.S. Const. amends. I, XIV;

Ball v. City of Lincoln, Neb., 870 F.3d 722, 729 (8th Cir. 2017). Leafleting is protected

speech, but the Constitution does not require the government to indiscriminately grant access

to “every type of [g]overnment property without regard to the nature of the property or to the

disruption that might be caused by the speaker’s activities.” Ball, 870 F.3d at 729 (quoting

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800 (1985)). “The

government retains much broader discretion to restrict activities in a nonpublic forum,” than

it does in a “traditional” or “designated” public forum. Id.

Several factors support defendants’ position that, during events, the area surrounding

the arena is a nonpublic forum, and the Broadway sidewalk adjacent to the arena is a limited

public forum. Id. at 730–31; Powell v. Noble, 798 F.3d 690, 699 (8th Cir. 2015). These

factors include: the physical appearance of the property at issue; the traditional use of the

property; the government’s purpose and policy; and the reasonableness of the policy. Ball,

870 F.3d at 730–31.

1. Area Surrounding the Verizon Arena

The property surrounding the arena, which extends to the bordering sidewalks, is a

nonpublic forum. Ball, 870 F.3d at 736. First, several features of the property’s physical

appearance distinguish it from the public sidewalks near it. Photographs of the property

show brightly colored metal posts, informational signs, handicapped ramps, curved walkways

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and driveways, and planters. Mot. Summ. J. Ex. 5, Doc. No. 40. These features, when taken

together, “serve to set the [area] apart from its surroundings,” suggesting that it does not

function as a traditional public forum. Ball, 870 F.3d at 733.

Second, the property surrounding the arena provides outside groups the means to

access the events held there. Resp. Board F. ¶¶ 3–6. The property “functions as a venue for

commercial use by Arena Tenants, as a means to facilitate safe and orderly access to the

Arena for its patrons.” Ball, 870 F.3d at 734. Hershey argues that portions of the arena

property are open to the public for pedestrian traffic, indicating that it is a traditional forum

and entitling speakers to greater expressive protections. Resp. Mot. Summ. J. at 13, Doc. No.

52. The fact that non-attendees could conceivably pass through the property surrounding the

arena, however, “does not transform the [property] into a public forum.” Ball, 870 F.3d at

733 (citing Bowman v. White, 444 F.3d 967, 978 (8th Cir. 2006)).

Third, the board’s written policy prohibits leafleting by non-attendees on arena

property. Mot. Summ. J. Ex. 6 at 8, Doc. No. 40. This policy is “viewpoint neutral on its

face” and applies regardless of message content. Ball, 870 F.3d at 736. The policy allows

for outside groups to leaflet during their events, if negotiated as part of their rental

agreements. Resp. Board F. ¶ 20. Hershey argues that the policy is not viewpoint neutral

because his coworker has seen other people distributing leaflets unrelated to vegetarianism

in the past without issue. Id. ¶ 19. Hershey also points out that officer King testified to

seeing anti-abortion protestors leafleting on Washington Avenue near the arena in the past.

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Resp. NLRPD F. Ex. 2 at 42–46. Hershey does not argue that officers allowed them to

impede the flow of event attendees. See Resp. Mot. Summ. J. at 13, Doc. No. 52.

Fourth, the board’s leafleting policy is reasonable because it is designed to “prevent

interference with Arena Tenants’ contractual uses of the [Verizon] Arena and to facilitate

safe and efficient access to the Arena for patrons.” Ball, 870 F.3d at 737; Mot. Summ. J. at

4, Doc. No. 41. Hershey argues that the leafleting policy is not reasonable because (1)

leafleting is less intrusive than other forms of protected speech and is less likely to disrupt

pedestrian traffic, and (2) if the mission of a group renting arena space conflicted with the

mission of a group who sought to leaflet, the board would be unlikely to permit the leafleting.

Id. at 14–15.

Hershey does not dispute that thousands of people attend Winter Jam or that Flippin

was informed of attendees’ complaints about his leafleting. Resp. NLRPD F. ¶¶ 49, 54;

Resp. Board. F. at ¶¶ 35, 44, 48. Moreover, there are available areas, including the opposite

side of Washington Avenue, where Hershey could reach his intended audience before they

reach the arena’s crowded access points. See Victory Through Jesus Sports Ministry Found.

v. Lee’s Summit R-7 Sch. Dist., 640 F.3d 329, 335 (8th Cir. 2011) (reasonableness of

restriction depends on availability of alternative channels); Resp. NLRPD F. Ex. 2 at 42–46.

Restricting leafleting during events is a reasonable way to allow large crowds to safely access

the arena.

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2. Broadway Sidewalk During Arena Events

The Broadway sidewalk adjacent to the arena, where Hershey sought to leaflet, is a

limited public forum during arena events.

Public sidewalks are generally, “without more,” considered traditional public forums.

Bowman, 444 F.3d 967 at 975. Here, however, the physical appearance of the south

Broadway sidewalk, its traditional use, and the government’s purpose with regard to it

support that it is a limited public forum during arena events. Ball, 870 F.3d at 730–31.

During crowded events, the “congestion, signage, [and] police presence” on the

sidewalks adjacent to the arena “clearly set these areas apart from regular public sidewalks.”

Id. In Powell, the Eighth Circuit held that the plaintiff was not entitled to use his T-shirt,

handheld sign, and one-on-one conversations to promote his religious views on the crowded

sidewalks outside of the Iowa State Fair. Here, similarly, police presence, heavy pedestrian

traffic, and brightly-colored posts indicated that the Broadway sidewalk was not functioning

as an “open, unrestricted thoroughfar[e] for general public passage.” Id.

In a limited public forum, speech restrictions must be reasonable and viewpoint

neutral. Powell, 798 F.3d 690 at 700. The board’s leafleting policy, Mot. Summ. J., Ex. 6

at 8, applies uniformly to non-attendees, regardless of message. Powell, 798 F.3d 690 at 700

(citing Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v.

Martinez, 561 U.S. 661, 679 (2010)). The policy is reasonable, as it serves to facilitate safe

access to the arena during events, which necessarily includes the sidewalks adjacent to the

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arena. /d. at 697 (“paid admission area cannot serve its purpose without mechanisms to

provide [arena] access points”).

D. Section 1983

Summary judgment is granted on Hershey’s section 1983 claim against the board

because his First Amendment rights were not violated. See Webb v. City of Maplewood, 889

F.3d 483, 487 (8th Cir. 2018) (no municipal liability without underlying injury).

IV. CONCLUSION

For the foregoing reasons, the motion for summary judgment [Doc. No. 40] of

defendants Curtright and the board 1s granted.

Hershey’s motion for leave to file a supplemental affidavit [Doc. No. 64] is denied.

The joint motion for summary judgment [Doc. No. 43] of defendants Davis, Flippin, and

Lyon is denied as moot. Hershey’s claims against the Doe defendants are dismissed, and this

case is dismissed.

IT IS SO ORDERED this 14th day of August, 2020.

Barer 2 WIM

UNITED STATES DISTRICT JUDGE