Brown, Robert v. Michigan City IN

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3912

ROBERT BROWN,

Plaintiff-Appellant,

v.

CITY OF MICHIGAN CITY, INDIANA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 02 C 572—Robert L. Miller, Jr., Chief Judge.

____________

ARGUED APRIL 6, 2006—DECIDED SEPTEMBER 5, 2006

____________

Before RIPPLE, MANION and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. On August 1, 2002, Robert Brown

was banned from all properties or programs operated by the

Michigan City Department of Parks and Recreation. On

August 13, 2002, he filed this suit against the City of Michi-

gan City, Indiana (“City”); he alleged that the ban violated

his rights to procedural and substantive due process

guaranteed by the Fourteenth Amendment. On September

19, 2005, the United States District Court for the Northern

District of Indiana granted summary judgment in favor of

2 No. 05-3912

the City. Mr. Brown now appeals. For the reasons set forth

in this opinion, we affirm the judgment of the district court.

I

INTRODUCTION

A. Facts

Mr. Brown is a resident of Michigan City, Indiana.

Washington Park (the “park”) is the largest public park in

Michigan City, and is located on the shores of Lake Michi-

gan. Residents, including Mr. Brown, may enter the park

free of charge with a resident pass. According to Mr. Brown,

sometime in 1988, he began visiting Washington Park on a

daily basis with his wife; they would “sit and watch the

sunsets and sunrises, drink coffee, smoke cigarettes.” Brown

Dep., R.49, Tab 3 at 20. After his wife passed away later that

year, he continued this routine: Over the course of approxi-

mately fourteen years, in the morning, he would drive his

R.V. to Washington Park, park near the lake, drink his

coffee, smoke cigarettes and watch people at the beach,

sometimes with binoculars.1 He did not leave his van on

most occasions.

On July 2, 2002, Darrell Garbacik, the Recreation Director

for the Michigan City Department of Parks and Recreation,

received a phone call from LaPorte Recreation Director Karl

Swihart. Swihart told Garbacik that Mr. Brown previously

had been observed at Stone Lake Beach in LaPorte, Indiana,

1

Mr. Brown claims that he watched only women on the beach,

see Brown Dep., R.49, Tab 3 at 51; the City claims that he also

watched children, and that some of the “women” sunbathing

on the beach in actuality were “teenage girls,” id.

No. 05-3912 3

sitting in his R.V. and watching beach patrons through

binoculars.2 The LaPorte police were notified and, after an

investigation, they discovered that, in 1995, Mr. Brown had

been convicted of one count of child molestation.3 Swihart

faxed Garbacik the case report from this investigation.

Garbacik subsequently notified the Michigan City

Police Department (“MCPD”) and the park staff of Mr.

Brown’s criminal history; he directed the park staff to be on

notice of Mr. Brown’s whereabouts in the park and to report

any unusual behavior.

A picture of Mr. Brown’s vehicle subsequently was

circulated to parking attendants at the Washington Park

gatehouse; they logged Mr. Brown entering and exiting

the park daily, sometimes twice daily, from July 16 to July

29, 2002. In addition, staff at a day camp within the park

observed Mr. Brown driving slowly by the camp, allegedly

watching the children. At his deposition, Garbacik ex-

2

Specifically, in late June 2002, Mr. Brown was parked near the

beach, directly across from a family sitting on the beach. Officer

Paul Brettin of the LaPorte City Police Department was on the

scene and, having noticed Mr. Brown in his car, inquired of the

lifeguards about his presence. The lifeguards informed the officer

that Mr. Brown often parked in this same spot and watched beach

patrons. Officer Brettin then approached Mr. Brown’s vehicle; Mr.

Brown explained to the officer that he was at the beach to go

swimming. Officer Brettin requested identification, which Mr.

Brown willingly provided. The officer subsequently ran a

criminal check on Mr. Brown and discovered his criminal history.

3

For this crime, Mr. Brown was sentenced to six years’ imprison-

ment; three years of his term of imprisonment were suspended,

and he was released from prison in January 1999. He was placed

on probation for three years and completed a counseling program

after his release.

4 No. 05-3912

plained that the speed limit on the road in front of the day

camp is only ten miles an hour, but nevertheless maintained

that Mr. Brown’s conduct was unusual:

Q: [W]hat is the speed limit within the park?

A: I’d actually be guessing, but I’d have to believe it’s

ten miles or less . . . .

...

Q: So what does it mean to say that Mr. Brown was

cruising slowly . . . ?

A: I think the distinction there and what was expressed

to me is that most people keep their eyes on the road

and stop at the stop sign. This particular individual was

looking to his right observing activities going on there.

Garbacik Dep., R.49, Tab 1 at 22. The City acknowledges

that, although Mr. Brown’s people-watching at the park was

in and of itself a largely innocent activity, when combined

with his criminal history, it raised a “red flag[]” for the park

staff. Id. at 38.

Mr. Brown was approached by Officer Webb of the MCPD

while sitting in his R.V. at the park in late July 2002. Officer

Webb inquired about Mr. Brown’s activities and whether he

was bothering anyone; after a short conversation, he

allowed Mr. Brown to remain in the park. Mr. Brown again

was approached in the park the next day; after asking Mr.

Brown what he was doing, Officer Mark Swistek of the

MCPD suggested that he leave the park. Mr. Brown com-

plied. A few days later, Mr. Brown was again in Washing-

ton Park when he was approached by two officers, who

inquired whether Mr. Brown was registered as a sex

offender with the MCPD; he responded that he had regis-

tered with the Sheriff’s Department in LaPorte County, but

No. 05-3912 5

was not aware that he also needed to register with Michigan

City officials.4 According to Mr. Brown, the fourth and last

time he was approached by the police in the park, the

officers were accompanied by a city attorney. The attorney

took Mr. Brown’s park pass; the officers informed him that

he was no longer allowed in the park; if he returned, Mr.

Brown was warned, he would be arrested for trespassing.

Mr. Brown complied with this order.

On July 31, 2002, an officer of the MCPD hand-delivered

a letter to Mr. Brown. It read:

The banning of your presence from the Michigan City

Park properties will be presented to the Michigan City

Parks and Recreation Board, Thursday August 1st at

6:00 in the 1st floor of the Park Office.

Id., Ex.5. Mr. Brown affirms that he “knew why [he] was

being banned,” Brown Dep., id., Tab 3 at 43, but alleges that

he did not understand that he was “invite[d]” to the

hearing, id. at 7. Because the police previously had told

him that he would be arrested if he entered the park again

and because the meeting was at the Park Office, inside

Washington Park, he did not believe that he had permission

to attend.

A friend of Mr. Brown’s, Randolph Sanders, called

various city officials to find out more about this meeting; he

spoke with the Park Superintendent, to whom he expressed

the concern that Mr. Brown would be arrested if he attended

the meeting. The Superintendent stated that Mr. Brown was

allowed to attend the meeting; however, both the Superin-

4

Subsequently, Mr. Brown promptly completed the necessary

paperwork to register as a convicted sex offender with the

Michigan City Police Department.

6 No. 05-3912

tendent and the city attorney refused Sanders’ request to

put this assurance in writing.

The Michigan City Parks and Recreation Board met in

regular session on August 1, 2002, at the Park Office in

Washington Park. In attendance were the four Board

members, a number of park staff, press and members of the

public. Mr. Brown was not present. One of the items

discussed at the meeting was Resolution 548, entitled, “A

Resolution Prohibiting the Use of Park Department Proper-

ties by an Individual Having a Child Molesting History.”

Id., Tab 1, Ex.7. In pertinent part, the Resolution read:

WHEREAS, the Michigan City Parks and Recreation

Board and the Michigan City Parks and Recreation

Department are by law responsible for the safety of all

persons using the Park Department facilities or partici-

pating in Park Department programs, and

....

WHEREAS, it was brought to the attention of this

Board by the Department staff and the Michigan City

Police Department that during the period of a recent

summer day camp program for children conducted

at Washington Park, an individual, namely, Robert E.

Brown . . . , who was recognized by members of the

Michigan City Police force as a convicted child molester,

was observed by the Police and the Department staff

frequenting Washington Park in [a] recreational/

camping vehicle, while having a set of binoculars and a

camera in his possession, and

WHEREAS, this Board has determined that in order

to discharge its responsibilities of child protection and

safety, it is necessary to designate all properties and

programs under the jurisdiction of the Department to be

No. 05-3912 7

OFF LIMITS to any person who has been convicted of

child molesting under Indiana Code, IC 35-42-4-3, or

convicted of any other sex crime in which the victim is

a child under the age of 18 years, and to ban such

person from all Michigan City Parks and Recreation

Department properties indefinitely.

NOW THEREFORE, BE IT RESOLVED BY THE

MICHIGAN CITY PARKS AND RECREATION BOARD

AS FOLLOWS:

(1) That ROBERT E. BROWN . . . is hereby

BANNED from all properties or programs operated

under the jurisdiction of the Michigan City Depart-

ment of Parks and Recreation and that in the event

said individual is found upon any such property, he

shall be considered a trespasser, and shall be re-

moved forthwith, or be subject to arrest for failure

to depart the premises.

(2) That all properties and programs operated under

the jurisdiction of this Department are hereby de-

clared OFF LIMITS to any person who has been

convicted of child molesting under Indiana Code,

IC 35-42-4-3, or convicted of any other sex crime in

which the victim is a child under the age of 18

years, and in the event that such individual is

identified and found upon any such property, he

shall be considered a trespasser and shall be or-

dered to remove himself forthwith, or be subject to

arrest for failure to depart the premises. . . .

Id. at 1-2. Although the resolution applied to all persons

convicted of child molestation, the City admits that Mr.

Brown was the only individual mentioned in the resolution

8 No. 05-3912

or at the Board meeting as “being a sex offender in the

parks.” Garbacik Dep., id., Ex.1 at 32.

The resolution was presented to the Board by Park

Department Attorney Patrick Donoghue. Donoghue in-

formed the persons in attendance that Mr. Brown had been

involved in a “series of incidents . . . involving the safety

and protection of children.” Minutes, id., Ex.6 at 2. He

explained that Mr. Brown has a criminal record, had been

seen using binoculars to watch a family at a LaPorte beach,

and had been observed engaging in suspicious behavior in

Washington Park, including visiting the park “everyday,

sometimes twice a day,” watching people from “his vehicle

with binoculars and a camera on one occasion,” and, on

numerous occasions, “driving by very slowly” the chil-

dren’s day camp. Id. at 3. He classified the Board’s obliga-

tion as “about as extreme as [it could] possibly be,” given

the Board’s responsibility for the “care, custody and safety

of [children who visit the park].” Id. Resolution 548 passed

unanimously.

After this litigation was filed on August 13, 2002, the

Board reconvened in a special session on August 29, 2002.

At this meeting, which again was held in the Park Office

and of which Mr. Brown received no notice, Donoghue

recommended to the Board that they rescind Resolution 548

and instead pass Resolution 552, entitled, “A Resolution

Prohibiting the Use of Park Department Properties by an

Individual Having a Child Molesting History, Whose

Observed Behavior Constitutes a Threat to the Safety of

Children.” Id., Ex.9. The Resolution is similar in substance to

Resolution 548; the difference is that, instead of making

Michigan City park properties “OFF LIMITS to any person

who has been convicted of child molesting under Indiana

Code, IC 35-42-4-3, or convicted of any other sex crime in

No. 05-3912 9

which the victim is a child under the age of 18 years,” id.,

Ex.7 at 1-2 (emphasis added), it makes those properties and

park programs “OFF LIMITS to the said Mr. Robert E.

Brown who has been convicted of child molesting under

Indiana Code, IC 35-42-4-3, and whose observed behavior

in Washington Park is deemed by this Board to constitute a

threat to the safety of children,” id., Ex.9 at 1-2. Under the

resolution, Mr. Brown is banned from “all Michigan City

Parks and Recreation Department properties indefinitely.”

Id. at 2. Donoghue explained the change to the Board

members and other members of the public present at the

meeting as prompted by the motion for class certification

filed by Mr. Brown. Because the “immediate problem to be

addressed is Mr. Brown,” and the issue of other persons

convicted of child molestation is “more remote,” Donoghue

urged the Board to “adopt [the new] resolution and rescind

Resolution 548. . . . [O]ur Resolution No. 548 must be

‘narrowly tailored’ and it is ‘narrowly tailored’ if it targets

and eliminates no more tha[n] the exact source of evil it

seeks to remedy.” Id., Ex.8 at 2. The Board voted unani-

mously to rescind Resolution 548 and to adopt Resolution

552.

B. District Court Proceedings

On August 13, 2002, Mr. Brown brought this action

against the City of Michigan City in the District Court for

the Northern District of Indiana; at the same time, he filed

in the district court a motion for class certification. Mr.

Brown alleged that he, and the other individuals banned

from entering Michigan City parks by Resolution 548, had

been deprived of a protected liberty or property interest

without due process of law. Specifically, he claimed that

notice of the August 1st Board meeting was not timely

10 No. 05-3912

received; further, he claimed that he was deprived of an

opportunity to be heard because he previously was told

that, if he entered the park, as was necessary to attend

the meeting, he would be arrested. Mr. Brown also alleged a

violation of his and the class’ substantive due process rights,

claiming that the right to enter public spaces like city parks

is a “fundamental and basic right of plaintiff and the class”

and that the decision to ban the class from city parks was

“arbitrary and irrational.” R.1 at 6. Mr. Brown sought on

behalf of the class a declaratory judgment and a permanent

injunction, allowing the class to lawfully enter Michigan

City parks; he also sought compensatory damages and

attorneys’ fees.5

After Resolution 548 was rescinded and Resolution 552

passed, Mr. Brown amended the complaint, naming himself

as the sole plaintiff; he subsequently also withdrew his

motion for class certification.

On September 19, 2005,6 the district court granted sum-

mary judgment in favor of the City. First, with regard to Mr.

Brown’s procedural due process claim, it found that Mr.

Brown did not have a protected property interest in being

permitted to enter Michigan City’s parks. It rejected the

claim that “his resident pass and his ability, like that of

other members of the public, to enter and use the City’s

parks amounted to an understanding or entitlement that

5

The complaint also alleges a violation of the Ex Post Facto

Clause of Article I, § 10, and the Fifth Amendment Double

Jeopardy Clause. These claims have not been pursued on appeal.

6

The case was stayed pending a decision in Doe v. City of

Lafayette, 334 F.3d 606 (7th Cir. 2003); a second stay was issued

when this court voted to rehear Doe en banc, see 377 F.3d 757 (7th

Cir. 2004).

No. 05-3912 11

created a property interest.” R.54 at 9 (internal quotation

marks omitted). Further, because Mr. Brown still could

enter other public places in Michigan City and because he

still may visit other parks outside of Michigan City’s

municipal boundaries, any infringement was de minimis.

The court also rejected Mr. Brown’s claim of a liberty

interest, based on damage to his reputation. Although the

“labeling of Mr. Brown as a threat to children may have

resulted in damage to his reputation,” id. at 11, under the

“stigma plus” test of Paul v. Davis, 424 U.S. 693, 708-09

(1976), he also needed to establish “the alteration of a

legal status,” R.54 at 12. This, the district court concluded,

Mr. Brown had not done:

[T]he burden on his right to enter Michigan City’s parks

. . . doesn’t impede his ability to enter and use other

public places in Michigan City or enter and enjoy public

parks in other locales . . . . Mr. Brown hasn’t cited an

Indiana law establishing a right to enter Michigan City

parks or cited to any case law supporting his claim of

such an entitlement.

Id. at 13.

Even if he did have a protected property or liberty

interest, the court continued, Mr. Brown received the

process he was due. He received adequate notice. See id. at

15 (“Mr. Brown hasn’t set forth any circumstances to

support a finding that 24-hours was insufficient.”). He

was given an opportunity to be heard. Id. at 17 (holding that

Mr. Brown’s belief that he would be arrested if he entered

the park was unreasonable, given that “he learned through

[Sanders’] calls that he could attend the meeting, albeit

without the written guarantee he sought” (emphasis

added)). And the hearing was fair: Although the Board

did not conduct a full adversarial hearing, “an open discus-

12 No. 05-3912

sion was held, and questions were accepted and answered.”

Id. at 18.

Lastly, the district court found that Mr. Brown had not

been deprived of a “fundamental right to enter public

spaces like city parks,” guaranteed by the Due Process

Clause. Id. at 23. The “right to enter and use city parks” is

not fundamental. Id. (citing Doe v. City of Lafayette, 377 F.3d

757, 772-73 (7th Cir. 2004)). Further, the City’s actions

easily passed muster under rational basis review: The City’s

ban of Mr. Brown “is rationally related to its compelling

interest in safeguarding children in its parks.” R.54 at 25.

Mr. Brown timely appealed.

II

DISCUSSION

Mr. Brown contends on appeal that the district court erred

in granting summary judgment to the City on his proce-

dural due process claim. He submits that he was deprived

of property when he was “stripped of the tangible symbol

of his right to enter [Michigan City] parks, his park pass,”

Appellant’s Br. at 18; he allegedly was denied a liberty

interest when he was labeled by the City “a threat to the

safety of children,” id. at 20 (internal quotation

marks omitted). He further submits that he was not afforded

adequate process by the City: he received no notice of the

August 29, 2002 meeting; the notice received of the earlier

August 1 meeting was constitutionally inadequate; the

meetings involved “no fact-finding, testimony, or adjudica-

tion,” id. at 30; and the City’s decision to ban him from its

parks “was not made pursuant to ascertainable standards,”

id. at 23.

No. 05-3912 13

Mr. Brown also contends that the district court erred

in dismissing his substantive due process claim. Ac-

cording to Mr. Brown, he has a fundamental right to

“enter parks and wander and loiter there,” and, although

the Government admittedly has a compelling interest in

protecting children from the threat of molestation, he argues

that the Government cannot prove that the ban is rationally

related to that interest. Id. at 32.

We review the district court’s grant of summary judgment

de novo. See Sornberger v. City of Knoxville, 434 F.3d 1006,

1012 (7th Cir. 2006). In doing so, we must construe all facts

and reasonable inferences in the light most favorable to the

non-moving party. See id. Summary judgment is proper if

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986).

A. Procedural Due Process

A procedural due process claim requires a two-fold

analysis. First, we must determine whether the plaintiff was

deprived of a protected interest, either liberty or property;

second, we must determine what process is due. See Pugel v.

Bd. of Trs. of Univ. of Illinois, 378 F.3d 659, 662 (7th Cir. 2004).

To determine the “specific dictates of due process,” the

Supreme Court has advised that we should consider

three distinct factors: First, the private interest that

will be affected by the official action; second, the risk of

an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of

14 No. 05-3912

additional or substitute procedural safeguards; and

finally, the Government’s interest, including the func-

tion involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement

would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). With this

framework in mind, we turn to Mr. Brown’s claim that he

was deprived of a protected property or liberty interest.

1. Property Interest

To claim a property interest protected by the Fourteenth

Amendment, “a person . . . must have more than a unilat-

eral expectation of [the claimed interest]. He must, instead,

have a legitimate claim of entitlement to it.” Bd. of Regents v.

Roth, 408 U.S. 564, 577 (1972). Property interests “are created

and their dimensions are defined by existing rules or

understandings that stem from an independent source such

as state law.” Id.; see also Perry v. Sinderman, 408 U.S. 593, 601

(1972) (holding that a property interest also can be created

through less formal rules or through “mutually explicit

understandings”).

In this case, we must decide whether the tradition of

distributing free park passes to Michigan City residents

created a legitimate expectation of the continued right to

visit Washington Park. We sympathize with Mr. Brown’s

situation: The City, by banning him from its parks, took

from him a daily routine that seems to have brought him

great joy and one of the few activities he shared with his

wife before she died. As Mr. Brown explained in his deposi-

tion:

[Visiting Washington Park is] just something I’ve been

doing since way back. I’ve been coming up to Michigan

No. 05-3912 15

City when I was a teenager. . . . [T]he wife and I

was going down there for awhile.

It’s just a place where I can go and relax and see

people enjoying life, which is something I haven’t done

since my wife died.

Brown Dep., R.49, Tab 3 at 78-79.

We cannot conclude, however, that Michigan City’s

practice of opening its parks to its residents free of charge

created a constitutionally cognizable property interest,

which was violated when Mr. Brown was banned from

those parks. A property interest of constitutional magnitude

exists only when the state’s discretion is “clearly limited”

such that the plaintiff cannot be denied the interest “unless

specific conditions are met.” Colburn v. Trs. of Indiana Univ.,

973 F.2d 581, 589 (7th Cir. 1992) (discussing the plaintiff’s

property interest in continued employment). Mr. Brown

cannot point to a state law, or another independent source,

that guarantees him access to Washington Park. In fact, the

Indiana Code grants municipal parks and recreation boards,

like the Michigan City Parks and Recreation Board, the

authority to “exercise general supervision of and make rules

for the department[] [and] establish rules governing the use

of the park and recreation facilities by the public[.]” Ind.

Code § 36-10-3-10(a)(1), (2) (1999). Under the power granted

to it by § 36-10-3-10, the Michigan City Parks and Recreation

Board ultimately possesses discretion to decide whether and

under what conditions members of the public can access the

City’s parks.

These circumstances are similar to those presented in Glatt

v. Chicago Park District, 87 F.3d 190 (7th Cir. 1996). In Glatt,

an owner of a yacht protested his reassignment from slip

D19 in Chicago’s Diversey Harbor to slip D5; he contended

16 No. 05-3912

that he had a valid property interest in slip D19. We rejected

this claim. Because the “Marine Director is given uncabined

discretion to change a permit holder’s harbor or slip

whenever the director thinks that the change is necessary

because of ‘efficiency,’ ” we held that the plaintiff could not

claim a property interest in a particular slip. Id. at 192

(concluding that “[t]he words ‘property’ and ‘entitlement’

connote an interest that is securely, though not absolutely,

the holder’s”). Because the right to enter the City’s parks

also is not “securely” Mr. Brown’s, id., it cannot be claimed

as a valid property interest.

Because we do not believe that Mr. Brown can claim a

property interest in accessing the parks of Michigan City,

we need not determine whether he has a property inter-

est that could be termed de minimis and whose depriva-

tion would not warrant due process. See Omosegbon v. Wells,

335 F.3d 668, 674 (7th Cir. 2003) (holding that, to establish a

constitutionally protectable property interest, the plaintiff

must establish that his interest is “more than de minimis,

which typically calls on the plaintiff to demonstrate some

form of provable . . . harm”); see also Freeman v. Sports Car

Club of America, Inc., 51 F.3d 1358, 1363 (7th Cir. 1995)

(holding that the plaintiff did not have a valid property

interest in his racing license because it implicated only

“amateur racing, a hobby,” and noting that, “[i]f [the

plaintiff] did not want to play by the [racing club’s] rules[,]

his proper recourse was to race elsewhere”).

2. Liberty Interest in Reputation

Mr. Brown also contends that Michigan City’s actions

implicate a constitutionally protected liberty interest.

According to Mr. Brown, the City damaged his reputa-

No. 05-3912 17

tion by classifying him as a “present threat” to children;

this, coupled with the alteration of his legal status, warrants

procedural due process under the “stigma plus” framework

of Paul v. Davis, 424 U.S. 693 (1976). Appellant’s Br. at 21-23.

The district court rejected this argument; it held that,

although the City’s statements may have damaged his

reputation, Mr. Brown had not demonstrated the alteration

of his legal status, as required by the “stigma plus” test.

Paul v. Davis recognized that “mere defamation by the

government does not deprive a person of liberty protected

by the Fourteenth Amendment, even when it causes serious

impairment of [one’s] future employment.” Hojnacki v.

Klein-Acosta, 285 F.3d 544, 548 (7th Cir. 2002) (internal

quotation marks omitted and alteration in original) (discuss-

ing Paul v. Davis, 424 U.S. at 697, 708-09). Rather, it is only

the “alteration of legal status,” such as the governmental

deprivation of a right securely held, “which, combined with

the injury resulting from the defamation, justifie[s] the

invocation of procedural safeguards.” Paul, 424 U.S. at 708-

09.

To be sure, the statements made about Mr. Brown at

the August 1st and August 29th Board meetings probably

could be classified, if untrue, as defamatory because they

had and may continue to have the potential to “injure

his . . . reputation” and are “capable of being proved false.”

Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004)

(internal quotation marks omitted). Although the majority

of statements made by city representatives at the two

meetings were truthful,7 we can assume for present pur

7

See, e.g., R.49, Tab 1, Ex.6 at 3 (accurately describing Mr.

Brown’s activities at Washington Park, including visiting the park

(continued...)

18 No. 05-3912

poses that some of the statements made were false. More-

over, as a direct result of publicity about Board proceedings,

Mr. Brown was harassed publicly and his R.V. was vandal-

ized. See Brown Dep., R.49, Tab 3 at 34 (noting that vandals

knocked windows out in his motor home); id. at 65 (discuss-

ing the connection between this incident and publicity

surrounding the Board’s actions). We further can assume for

purposes of this analysis that these statements “cast[] doubt

on [Mr. Brown’s] good name, reputation, honor or integ-

rity,” fulfilling the first prong of the Paul v. Davis “stigma

plus” test. Dupuy v. Samuels, 397 F.3d 493, 503 (7th Cir. 2005)

(internal quotation marks omitted).

We agree, however, with the district court that Mr. Brown

cannot fulfill the “plus” factor of the Paul v. Davis test—the

alteration of legal status. For a plaintiff to establish a

protectable liberty interest, “any stigmatic harm must take

concrete forms and extend beyond mere reputational

interests.” Omosegbon, 335 F.3d at 675. The defamatory

statements must “alter[] or extinguish[ ]” “a right or status

previously recognized by state law.” Paul, 424 U.S. at 711;

see also id. at 712 (holding that the plaintiff’s placement on a

list of active shoplifters did not alter his legal status because

it did not “work[] any change of [his] status as theretofore

recognized under the State’s laws”). For example, we have

recognized the violation of a valid liberty interest when

“[an] employee’s good name, reputation, honor or integrity

[was] called into question in a manner that ma[de] it

virtually impossible for the employee to find new employ-

ment in his chosen field,” Townsend v. Vallas, 256 F.3d 661,

7

(...continued)

“everyday, sometimes twice a day,” and “sitting in his vehicle

with binoculars”).

No. 05-3912 19

670 (7th Cir. 2001); see also Beischel v. Stone Bank Sch. Dist.,

362 F.3d 430, 439 (7th Cir. 2004) (same); when a student was

deprived of the right to attend public school, see Paul, 424

U.S. at 710 (discussing Goss v. Lopez, 419 U.S. 565 (1975));

and when a plaintiff’s right to operate a vehicle on the

highways of the state was taken away, Paul, 424 U.S. at 711

(discussing Bell v. Burson, 402 U.S. 535 (1971)).

Mr. Brown cannot establish that the right to enter the

parks of Michigan City is “a right or status previously

recognized by state law.” Paul, 424 U.S. at 711. The cases

cited by Mr. Brown, see, e.g., Gen. Outdoor Adver. Co. v. City

of Indianapolis, Dept. of Pub. Parks, 172 N.E. 309, 313

(Ind. 1930), indeed do discuss the importance of public

parks; however, they do not confer a constitutionally

cognizable right upon all citizens to enjoy these parks

unconditionally. In fact, as we already have discussed,

the right to enter Michigan City parks is qualified by

Indiana state law, which grants discretion to the Park Board

to set conditions on the public’s entry to city parks and to

regulate the behavior required of its visitors. See Ind. Code

§ 36-10-3-10(a)(2) (1999). The cases cited by Mr. Brown in

support of a contrary conclusion are inapposite. For exam-

ple, he relies on Wisconsin v. Constantineau, 400 U.S. 433

(1971). In Constantineau, the Supreme Court held that a one-

year ban on the plaintiff’s purchase of alcohol in Hartford,

Wisconsin, was invalid because no notice was given and no

hearing held; the Court found that the stigma of being

banned publicly from a liquor store constituted the denial

of a liberty interest. See id. at 436. In Paul v. Davis, the Court

held, however, that stigma alone does not establish the

deprivation of a constitutionally protectable liberty interest;

instead, the plaintiff also must establish the alteration of

legal status. See Paul v. Davis, 424 U.S. at 701-02 (refusing to

overturn Constantineau but clarifying that “the correct

20 No. 05-3912

import of [the Constantineau] decision . . . must be derived

from an examination of the precedents upon which it relied,

as well as consideration of the other decisions by this Court,

before and after Constantineau, which bear upon the rela-

tionship between governmental defamation and the guaran-

tees of the Constitution”). Accordingly, Constantineau has

been limited by this circuit to its precise facts; as we ex-

plained in Health Equity Resources Urbana, Inc. v. Sullivan,

927 F.2d 963 (7th Cir. 1991), Paul reinterpreted Constantineau

to recognize a state law entitlement to freely “purchase

goods,” an entitlement not at issue in this case.8 Id. at 968.

8

In his reply brief, Mr. Brown also cites Somerset House, Inc. v.

Turnock, 900 F.2d 1012 (7th Cir. 1990), for the proposition that

his ban from Michigan City parks affected a change in his legal

status. In Somerset, the plaintiff, a nursing home in Chicago, was

found by the Illinois Department of Public Health to have

committed a violation of the Nursing Home Care Reform Act, Ill.

Rev. Stat. ch. 111 1/2, ¶ 4151-101, et seq. (1988), and was issued

a “Conditional License”; the Conditional License caused the

Illinois Department of Public Aid to automatically withdraw

funding under the Quality Incentive Program, Ill. Admin. Code

tit. 89 § 140.565 et seq., until the temporary license expired. The

plaintiff brought suit against the Directors of the Illinois Depart-

ment of Public Health and the Department of Public Aid, alleging

that it was deprived of property without due process of law. The

district court held that the plaintiff had a significant protectable

interest under the “stigma plus” analysis. On appeal, the defen-

dant did not challenge whether the plaintiff had a constitution-

ally protected property or liberty interest and, therefore, contrary

to Mr. Brown’s suggestion, we had no occasion to address the

issue. Even had we affirmed the district court’s analysis, that

analysis is not applicable to the present case: The district court in

Turnock held that the loss of eligibility for Quality Incentive

(continued...)

No. 05-3912 21

We therefore find no alteration of legal status and, conse-

quently, no deprivation of a protectable liberty interest.

Whether Mr. Brown was afforded adequate process in this

case is a difficult question. Because we conclude that Mr.

Brown was not deprived of a valid liberty or property

interest, however, we have no occasion to address defini-

tively what process was due and whether the process

afforded was adequate under the circumstances.

B. Substantive Due Process

Mr. Brown also contends that the City violated his right to

substantive due process when it banned him from entering

its public parks. As the Supreme Court has noted,

the Due Process Clause specially protects those funda-

mental rights and liberties which are, objectively,

deeply rooted in this Nation’s history and tradition, and

implicit in the concept of ordered liberty, such

that neither liberty nor justice would exist if they

were sacrificed . . . . Our Nation’s history, legal tradi-

tions, and practices thus provide the crucial guideposts

for responsible decisionmaking, that direct and restrain

8

(...continued)

Program funding, a program created and administered by state

law, constituted a “change in legal status.” Id. at 1015 (describing

the holding of the district court). The same is not true here.

Unlike in Turnock, where under the terms of state law the plaintiff

was eligible for state funding and therefore was guaranteed due

process before such eligibility was withdrawn, there is no state

law or similar source that guarantees Mr. Brown access to

Michigan City parks.

22 No. 05-3912

our exposition of the Due Process Clause. As we

stated recently in Flores, the Fourteenth Amendment

forbids the government to infringe . . . fundamental

liberty interests at all, no matter what process is pro-

vided, unless the infringement is narrowly tailored to

serve a compelling state interest.

Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (inter-

nal citations and quotation marks omitted; emphasis and

second alteration in original). The Supreme Court, however,

has advised that we must be

reluctant to expand the concept of substantive due

process because guideposts for responsible decision-

making in this unchartered area are scarce and open-

ended. By extending constitutional protection to an

asserted right or liberty interest, we, to a great extent,

place the matter outside the arena of public debate and

legislative action. We must therefore exercise the utmost

care whenever we are asked to break new ground in this

field . . . .

Id. at 720 (internal citations and quotation marks omitted).

As a result, there is only a narrow category of recognized

“fundamental” rights. They include:

the rights to marry, to have children, to direct the

education and upbringing of one’s children, to marital

privacy, to use contraception, to bodily integrity, and to

abortion[.] We have also assumed, and strongly sug-

gested, that the Due Process Clause protects the tradi-

tional right to refuse unwanted lifesaving med-

ical treatment.

Id. (internal citations omitted).

The right to enter a public park is not among this list. In

fact, in Doe v. City of Lafayette, 377 F.3d 757 (7th Cir. 2004),

No. 05-3912 23

we explicitly refused to expand the list of fundamental

liberties to include a right to enter city parks. In Doe, the

plaintiff previously had been convicted of child molestation.

While on probation, he reportedly was seen “cruising parks

and watching young children.” Id. at 759 (internal quotation

marks omitted). He later received notice from the City of

Lafayette, Indiana, that he had been banned from entering

its public parks. Doe challenged this ban, alleging, in

pertinent part, that he had been deprived of a substantive

due process right recognized by the Fourteenth Amend-

ment.

We classified Mr. Doe’s alleged “right to enter the parks

to loiter or for other innocent purposes” as one that, al-

though certainly important, is not “fundamental.” Id. at 769-

70. “It certainly is an uncomfortable fit with the

liberty interests that the Supreme Court, as noted in

Glucksberg, has determined to be fundamental,” id. at 770,

including the right to marry, to marital privacy and to use

contraception:

When we compare Mr. Doe’s asserted liberty interest

with those which have been held fundamental, we are

bound to the conclusion that Mr. Doe’s asserted right to

enter the parks to loiter is not on the same footing; it is

not implicit in the concept of ordered liberty, such that

neither liberty nor justice would exist if [it] were sacri-

ficed. . . . The historical and precedential support for a

fundamental right to enter parks for enjoyment is, to

put it mildly, oblique. Notably, Mr. Doe’s argument

contains a dearth of historical sources. He cites no case,

state or federal, that has held that the right to enter the

park to loiter or for other enjoyment purposes is

“fundamental,” as that term is understood in substan-

tive due process doctrine.

24 No. 05-3912

Id. at 770-71 (internal citations and quotation marks omitted;

first alteration in original). Because no fundamental right

was at stake, we applied a rational basis standard of review.

We found that the City’s interest in protecting children is

“not merely legitimate, [but] compelling.” Id. at 773. We also

found that the ban was rationally related to that end: Mr.

Doe had been witnessed in the park looking at children; he

was a convicted child molester; and it was possible that he

was heading down a “slippery slope into abuse.” Id.

Mr. Brown does not challenge Doe’s conclusion that

the right to enter a park is not fundamental. We therefore

“must ask whether the ban is rationally related to a legiti-

mate government interest, or alternatively phrased, whether

the ban is arbitrary or irrational.” Id. at 773 (internal quota-

tion marks omitted). Mr. Brown does not contest that the

City’s interest in protecting children from potential child

abusers is “legitimate.” Id. He does claim, however, that this

ban is not rationally related to that end. Unlike in Doe, he

urges, where the plaintiff was observed engaging in behav-

ior “threatening [and] dangerous” to children, Mr. Brown’s

behavior was largely benign: He merely sat alone in his

R.V., observing patrons on the beach and in the park.

Appellant’s Br. at 33.

We cannot accept this argument. Rational-basis review

is “highly-deferential.” Turner v. Glickman, 207 F.3d 419, 426

(7th Cir. 2000). To find that a government action violates the

requirements of substantive due process in this context, it

must be “utterly lacking in rational justification.” Id.

(internal quotation marks omitted). In this case, Michigan

City park personnel received reports that Mr. Brown had

been sitting in his van, watching beach patrons through

binoculars; he came to Washington Park once or twice daily;

he previously had been seen at a nearby beach watching a

No. 05-3912 25

family; and he has a criminal record for molesting a child.

Of course, there are significant differences between Mr.

Brown and the plaintiff in Doe; for example, there is no

evidence that Mr. Brown was “[l]ooking for children” or

“having . . . urges” while watching children at the park. Doe,

377 F.3d at 759-60 (quoting Mr. Doe’s admissions). Nor can

we conclude on the basis of the record before us, as we did

in Doe, that Mr. Brown necessarily is heading down a

“slippery slope into abuse.” Id. at 773. Nevertheless, the

reality is that “children, some of the most vulnerable

members of society, are susceptible to abuse in parks,” id.,

and that the City has a duty to shield them, ex ante, from

the mere risk of child abuse or molestation. The ban of Mr.

Brown from the City’s parks bears a rational relationship to

its goal of protecting the children of its community. As a

practical matter of ensuring public safety, Mr. Brown is not

just another patron of the public parks. He is a convicted

child molester whose frequency of attendance and atyp-

ical behavior while in the park justified the concern of those

public officials charged with ensuring the safety of members

of the public who visit the recreational site.

Mr. Brown responds that, because Michigan City has not

chosen to ban all child molesters from its parks, only

Mr. Brown, its actions are “fundamentally irrational.”

Appellant’s Br. at 34. But the City’s means need not be

“narrowly tailored” to its goals; rather, they need only be

“reasonably related to [those] goal[s].” City of Chicago v.

Shalala, 189 F.3d 598, 607 (7th Cir. 1999). Unlike other

persons previously convicted of child molestation, Mr.

Brown was witnessed repeatedly in Washington Park

watching patrons through binoculars; there is no indication

that park officials had seen other sex offenders on City

property, engaged in activity similar to Mr. Brown’s.

Further, as we concluded in Doe, “[t]here is certainly

26 No. 05-3912

nothing in the record to suggest the City would act dif-

ferently when faced with a similar case.” Doe, 377 F.3d

at 773 n.14.9

Conclusion

For the reasons set forth in this opinion, we affirm the

judgment of the district court.

AFFIRMED

9

Mr. Brown also contrasts his case with that of Willie Faulkner,

the only other individual to have been banned from Michigan

City parks. Faulkner was “observed with his hands in his pants,”

watching a female high school volleyball team. Garbacik Dep.,

R.49, Tab 1 at 8. In August 2002, he was banned from entering

Michigan City parks “for the remainder of the 2002 and for the

entire 2003 calendar year.” Letter to Faulkner, R.49, Tab 1, Ex.2.

Mr. Brown submits that it is irrational to impose an indefinite ban

on his entry to the City’s parks when Faulkner was banned, for

comparatively more threatening conduct, for only two years. This

comparison is persuasive, but ultimately unavailing. Although

we agree that Faulkner’s conduct can be characterized as less

benign than Mr. Brown’s, there is no evidence that Faulkner

formerly was convicted of child molestation. It is not unreason-

able for the City to treat an individual who has demonstrated a

propensity towards molesting children differently than an

individual with no record, in the event that both are engaged in

suspicious activity.

No. 05-3912 27

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-5-06