Petition for Writ of Certiorari — Veneklase v. City of Fargo

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o—~ Supreme Court, U.S.

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OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

CHRIS VENEKLASE, PAUL B. MEHL,

NYAROLD LARSON, NANCY EMMEL

and JESSICA UCHTMAN,

Petitioners,

CITY OF FARGO, DAVID TODD,

JIM SCHALESKY, JON HOLMAN

and WAYNE JORGENSON,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THOMAS W. ConpIrT

9403 Kenwood Road

Suite C-208

Cincinnati, Ohio 45242

(513) 985-9333

Counsel for Petitioners.

Cooperating Attorney For

The Rutherford Institute.

Washington, 0.C. © THIEL PRESS «¢ (202) 328-3286

(?)

QUESTION PRESENTED FOR REVIEW

For purposes of granting or denying qualified immun-

ity, does the expressly narrowed constitutional construc-

tion of an ordinance by the United States Supreme Court

constitute “clearly established law” governing police con-

duct in the enforcement of identical ordinances in analo-

gous fact situations?

(it)

PARTIES TO THE PROCEEDING BELOW

Petitioners: Chris Veneklase; Paul B. Mehl; Darold Lar-

son; Nancy Emmel and Jessica Uchtman

Respondents: City of Fargo; David Todd; Jim Schalesky;

Jon Holman, Wayne Jorgenson

—————— we

a~er

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ............4--.

PARTIES TO THE PROCEEDING BELOW............--.

SS SEES Se Ot aa Oe

REESE ee a a a

RELEVANT STATUTES AND CONSTITUTIONAL

oo tag 8 ee re ee ee ee ee ee ee 2

STATEMENT OF THE CASE .. 0. ccc creer scnccscvvne

REASONS FOR GRANTING THE WRIT ............2-+4-

1. Conflicting Interpretations of Frisby. ..........+245-

2. The Limits of Qualified Immunity ...............4.4.

3. Stare Decisis and Confidence In The Courts

CONCLUSION

TABLE OF AUTHORITIES

Cases:

Anderson v. Creighton, 483 U.S. 635 (1986) ........-+-+--

Frisby v. Schultz, 487 U.S. 474 (1988) .......----++--

Schultz v. Frisby, 877 F.2d 6 (7th Cir. 1989)......-----

Harlow v. Fitzgerald, 457 U.S. 800 (1982). ......--+-+--

Hicks v. Miranda, 422 U.S. 323 (1975) .. 2... 22 ee ee ee eens

Maislin Industries, U.S. v. Primary Steel, Inc., 497

2 RT Sit Sor or ae ee

Malley v. Briggs, 475 U.S. 335 (1986)... ..- +--+ ee eee eee

Mitchell v. Forsyth, 472 U.S. 511 (1985)... ...--2 ee eee eee

Planned Parenthood v. Casey, 947 F.2d 682 (3rd

Oe errr rr tee eee eee

Siegert v. Gilley, 500 U.S. 226 (1991)......----eee eens:

Triplett Grille, Inc. v. City of Akron, 40 F.3d 129

(6th Cir. 1994)... 2. cece ere c cece eer ercecceces

(tv)

Cases, continued: Page

United States v. Mason, 412 U.S. 391 (1973) ............. 11

Veneklase v, City of Fargo, 78 F.3d 1264 (8th Cir. M

SOE A 8k 88 as OE Se Oi re Ska Oe rbd Bee ks bck be Oreos 1

Veneklase v. City of Fargo, 904 F.Supp. 1038 (D.N.D

Sa eR eee gtr at aa eer ga ey Me Oa ere er are ae 1

Vittitow v. City of Upper Arlington, 43 F.3d 1100

ee CR. SOG 526 eS ide ees eee Chee eae. 5,7

Constitution, Statutes and Rules:

ee Ses RPMI R Es oo ks 8S Se oon Oe SOR EPSRC kSe <n

SS ER cs 44S oD SDSS E RCT eee 1

Christopher Veneklase, Paul B. Mehl, Darold Larson,

Nancy Emmel and Jessica Uchtman respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Eighth Circuit,

which reversed the decision of the District Court and

granted Summary Judgment to the Defendants/Respond-

ents.

OPINIONS BELOW

The published opinion of the United States Court of

Appeals for the Eighth Circuit is Veneklase v. City of

Fargo, 78 F.3d 1264 (8th Cir. 1996).

The published opinion of the United States District

Court for the District of North Dakota is Veneklase v.

City of Fargo, 904 F.Supp. 1038 (D.N.D. 1995).

Both opinions are reprinted in the Appendix which

accompanies this Petition.

JURISDICTION

Review is sought from the decision of the United

States Court of Appeals for the Eighth Circuit entered on

March 6, 1996. The Petitioners’ motion for rehearing

was denied by the Eighth Circuit on April 24, 1996.

Jurisdiction is conferred on this Court pursuant to

28 U.S.C. §1254(1).

RELEVANT STATUTES AND

CONSTITUTIONAL PROVISIONS

Set forth in Appendix E (p. 65a) are U.S. Const.

Amendment I and 42 U.S.C. §1983.

STATEMENT OF THE CASE

On June 27, 1988, this Court decided Frisby v. Schultz,

487 U.S. 474 (1988), a residential picketing case involv- :

ing anti-abortion protestors in Brookfield, Wisconsin.

The Frisby Ordinance stated:

It is unlawful for any person to engage in picketing

before or about the residence or dwelling of any

individual in the Town of Brookfield.

A similar Ordinance was in effect in Fargo, North

Dakota on October 10, 1991. The Fargo Ordinance

defined “picketing” and “‘dwelling”’, and then stated:

10-0802 Picketing of Dwellings Prohibited No per-

son shall engage in picketing the dwelling of any

individual in the city of Fargo.

On October 10, 1991, Petitioners Chris Veneklase,

Paul B. Mehl, Darold Larson, Nancy Emmel and Jessica

Uchtman, along with ten to fifteen other individuals,

decided to engage in silent prayer on Fargo’s public side-

walks in the residential neighborhood of Jane Bovard,

a woman affiliated with a local abortion clinic. Peti-

tioners had no intention of targeting Bovard’s residence

with their presence, and it is undisputed that they gave

no emphasis to Bovard’s residence or to any other resi-

dence!. Petitioners limited their activities to the public

;

IThis Court should not be misled by the Eighth Circuit’s

assertion that “one protestor remained in front of the adminis-

trator’s home at all times.” (Opinion at Appendix A, page 2a-3a)

This suggests that a protestor “remained” stationed in front of

Bovard’s house, which is false. The actual testimony from an

affidavit of Respondent Holman is: “At all times, one or more pro-

testors were in front of the Bovard home”. Because it is undis-

puted that no emphasis was directed at any individual residence,

the only proper conclusion is that there was always one or more

protestors in front of every residence on the route, not just

Bovard’s.

streets and sidewalks, did not block anyone’s access to or

from private property, moved continually in front of an

entire block of houses (six to eight residences), and

remained silent during their prayer until they were

approached by the Respondents, who were City of Fargo

Police Officers responding to an unidentified complaint.

Respondents had arrived and observed Petitioners (and

the others praying with them) for approximately ten

minutes. They observed Petitioners walking north and

south on the public sidewalk on Edgewood Drive. Some

in the group were holding rosary beads and had their

hands folded. It appeared to the Respondents that the

Petitioners were meditating or praying, a fact recorded

in their police report.

Eventually, Respondent Jon Holman approached the

group and engaged in a conversation with Petitioner Chris

Veneklase. Holman stated his belief that Petitioners were

violating the Fargo Ordinance and instructed them that

they would be arrested if they did not leave. Veneklase

responded by insisting to Holman that the group was not

picketing at all, a belief which Petitioners still hold but

need not address here. Veneklase also told Holman

that he had read the Fargo Ordinance and did not believe

that the group’s conduct fell within its scope. Veneklase

was familiar with the terms of Frisby v. Schultz at the

time.

Holman then reiterated that members of the group

would be arrested if they did not leave. Veneklase then

informed the others that they would risk arrest by con-

tinuing their prayer activities, after which most of them

left. |. However, Petitioners Veneklase, Mehl, Larson,

Emmel and Uchtman remained in Bovard’s neighborhood

and were arrested when they continued walking in silent

prayer.

It is undisputed that Holman and the other Respond-

ents did not know about Frisby v. Schultz when they

arrested Petitioners, nor had they received any training \

from the City of Fargo on the enforcement of the Fargo

Ordinance. Moreover, Holman offered the group no

alternatives for remaining in the neighborhood, and no

guidelines under which they could properly picket under

Fargo’s Ordinance. Upon being questioned at deposi-

tion, Holman disclosed his understanding that the Fargo

Ordinance could be properly enforced to ban even the

silent residential picketing of a single individual, regard-

less of the size of the route.

Petitioners were subsequently prosecuted by the City

of Fargo for violations of the Fargo Ordinance, but the

charges were dismissed on constitutional grounds by

Cass County Judge Frank L. Racek on February 18,

1992. For a more detailed statement of the facts, see

Appendix D (p. 60a-64a), Affidavit of Christopher Mar-

tin Veneklase.

On October 8, 1993, Petitioners filed a complaint in

the United States District Court for the District of North

Dakota, seeking damages from Respondents pursuant to

42 U.S.C. §1983 for the violation of their federal con-

stitutional rights. On February 17, 1995, the District

Court granted summary judgment to Petitioners on their

federal constitutional claims and denied Respondents’

defense of qualified immunity. On February 27, 1995,

Respondents filed a Notice of Appeal in the United

States Court of Appeals for the Eighth Circuit seeking

interlocutory review on the qualified immunity issue

pursuant to Mitchell v. Forsyth, 472 U.S. 511 (1985).

On March 6, 1996, the Eighth Circuit issued a decision

reversing the District Court and granting qualified immun-

ity to the Respondents. The Eighth Circuit also denied_

)

the City of Fargo’s appeal on city liability for lack of a

final appealable order.”

On March 20, 1996, Petitioners filed a motion for

rehearing with suggestion for rehearing en banc, which

was denied by the Eighth Circuit per Order dated April

24, 1996. Two Eighth Circuit Judges, Chief Judge

Richard S. Arnold and Judge Morris Sheppard Arnold,

voted to grant the suggestion for rehearing en banc.

REASONS FOR GRANTING THE WRIT

1. Conflicting Interpretations of Frisby.

There are three compelling reasons for granting the

writ. First, the Eighth Circuit applied the Fargo Ordi-

nance in direct conflict with this Court’s carefully crafted

constitutional mandate in Frisby v. Schultz, 487 U.S.

474 (1988), and also in conflict with the Sixth Circuit’s

understanding of Frisby as reflected in Vittitow v. City

of Upper Arlington, 43 F.3d 1100 (6th Cir. 1995).

Frisby was also a residential picketing case involving

anti-abortion protestors and a facial attack on an Ordi-

nance which everyone agrees was “virtually identical’”® to

the Fargo Ordinance. An underlying assumption of

Justice O’Connor’s majority opinion, discussed more

explicitly in Justice White’s concurrence, is that the

Frisby ordinance was unconstitutionally overbroad if

understood in plain English, because it would mean a

? Petitioners have named the City of Fargo as a Respondent

in this Petition only because it was a party to the appeal below.

The qualified immunity issues raised in this Petition, however, are

directed only at the individual police officers: Respondents Todd,

Schalesky, Holman and Jorgenson.

5 Eighth Circuit opinion at Appendix A, page 6a, n.4.

total ban of residential picketing. However, the Court

accepted the verbal representations of Brookfield’s coun-

sel at oral argument and “saved” the Ordinance with the

following narrowed constitutional construction:

General marching through residential neighbor-

hoods, or even walking a route in front of an entire

block of houses, is not prohibited by this Ordinance.

Accordingly, we construe the ban to be a limited

one; only focused picketing taking place solely in

front of a particular residence is prohibited.

487 U.S. at 483.

With language directly pertinent to this case, the

Frisby Court further defined the scope of picketing

rights under the Ordinance:

Protestors have not been barred from the residential

neighborhoods. They may enter such neighbor-

hoods, alone or in groups, even marching. . . they

may go door to door to proselytize their views.

They may distribute literature in this manner... or

through the mail.

Id. at 484.

On October 10, 1991, Petitioners had taken this Court

at its word and concluded that “solely” meant “solely”.

Armed with a general understanding of Frisby and

resolved to be nothing more than a silent presence in

Bovard’s neighborhood, Petitioners walked a route cover-

ing a block of approximately six to eight houses to avoid

any charge that they were “focusing”? on anyone’s resi-

dence. Yet, they were arrested for doing exactly what

this Court held to be permissible in Frisby. Insult was

added to injury when Respondents, utterly untrained in

the enforcement of their own ordinance, were protected

by the Eighth Circuit with qualified immunity based

upon some alleged confusion in the law.

The Sixth Circuit certainly saw no confusion while

reviewing similar facts and another identical ordinance

in Vittttow v. City of Upper Arlington, 43 F.3d 1100,

1107 (6th Cir. 1995):

Frisby could not be more clear: “[O] nly focused

picketing taking place solely in front of a particular

residence is prohibited.”

Abortion remains the most controversial social and

political issue in this nation, where many Frisby-style

ordinances remain in effect. The decision below scram-

bles the analysis, which was heretofore clear to the Dis-

trict Court in this case, the Sixth Circuit in Vittitow,

and the Seventh Circuit after the Frisby remand (see p.

9, infra) thanks to this Court’s unambiguous, ordinance-

saving construction in Frisby. Residential pickets must

now choose between risking arrest or suppressing their

desired speech, while police officers will enforce such

ordinances at the risk of personal liability, depending on

which view of Frisby prevails in their jurisdiction. Clari-

fication by this Court of the proper scope of a Frisby

ordinance, which really should not be necessary, is

absolutely needed now as a result of the Eighth Circuit’s

unfortunate interpretation.

2. The Limits of Qualified Immunity.

The second reason for granting the writ is even more

compelling because of the far-reaching issue of qualified

immunity, a defense raised in hundreds of cases each

year. The standard for shielding government officials

with qualified immunity was defined in Harlow v. Fitz-

gerald, 457 U.S. 800 (1982), which abandoned any anal-

ysis of subjective “good faith” in favor of an objective

standard. In post-Harlow cases, the threshold issue is

whether a constitutional right has been violated. Siegert

v. Gilley, 500 U.S. 226 (1991). If so, then the plaintiff

must show that the law regarding this right was “clearly

established” at the time the violation occurred in order

to overcome the defense of qualified immunity. /d.;

Harlew at 818.

This Court revisited the qualified immunity issue and

refined the “clearly established law” requirement in |

Anderson v. Creighton, 483 U.S. 635 (1986). Remind-

ing us that “objective legal reasonableness . . . is the

touchstone of Harlow”’, Id. at 639, the Court discussed

the level of generality necessary for immunity to attach:

The contours of the right must be sufficiently clear

that a reasonable official would understand that

what he is doing violates that right. This is not to

say that an official action is protected by qualified

immunity unless the very action in question has pre-

viously been held unlawful, but it is to say that in |

the light of pre-existing law the unlawfulness must

be apparent. |

Id. at 640 (citations omitted).

It is difficult to imagine another case more clearly |

requiring the denial of qualified immunity than what

Petitioners now present to this Court. Beyond any |

rational debate, Frisby v. Schultz provided clear, bind- |

ing precedent from this Court to govern the conduct of |

the Respondents on October 10, 1991. The analysis of

the District Court was exactly right:

It is not necessary for a litigant to demonstrate

precise factual correspondence with precedents in

order to prove that the law was clearly established

for qualified immunity purposes. Jones v. Coonce, ‘

7 F.3d 1359, 1362 (8th Cir. 1993). “It is only

necessary that the unlawfulness of the official’s act )

is apparent in view of pre-existing law.” Id. The

Court finds that the unlawfulness of defendants’

arrest of plaintiffs was apparent in light of Frisby.

iii i

The similarity of the Brookfield and Fargo ordi-

nances put defendants on notice that the Fargo

ordinance was overbroad as written. The Frisby

Court avoided constitutional difficulties presented

by the Brookfield ordinance by construing the anti-

picketing band to prohibit only focused picketing

taking place solely in front of a particular residence.

Frisby, 386 U.S. at 483. This narrowing construc-

tion clearly established the standard for analogous

cases.

Appendix B, p. 40a.

Petitioners submit that this is not even a close case,

and they are stunned by the Eighth Circuit’s approach.

Indeed, the reasoning of the Eighth Circuit panel is

impeached by the very authority upon which it relied.

The panel’s reliance, for example, on the Seventh Cir-

cuit’s remand opinion in Schultz v. Frisby, 877 F.2d

6 (7th Cir. 1989), is astonishing. Far from expressing

confusion or uncertainty about the proper construction

of the Ordinance, the Seventh Circuit refused to specu-

late beyond the construction of the Ordinance as handed

down by this Court:

The plaintiffs believe that the ordinance does not

have the meaning the Town gave it in the Supreme

Court. They ask us to certify the case to the Sup-

reme Court of Wisconsin for an authoritative con-

struction or at least remand the case so that the dis-

trict court can hold further proceedings to pin down

its meaning. Yet the meaning of a law is not a ques-

tion of fact, to be stewed over in evidentiary pro-

ceedings. So far as this case is concerned the mean-

ing of the ordinance is what the Supreme Court said

tt means, and having this meaning it ts constitutional.

877 F.2d at 7 (emphasis supplied).

In spite of this language, curiously omitted from the

opinion below, the Eighth Circuit found support in the

Seventh Circuit’s observation that “‘[n]o matter how

clear the ordinance seems, a hundred nice questions may

follow in its wake.” Jd. at 8. The Eighth Circuit was

apparently distracted by such language and lost sight of

the narrow Frisby issue presented by this case, in favor

of future hypotheticals. Such an abstract approach

reduces the doctrine of qualified immunity to meaning-

less verbiage. If every hypothetical question must be

resolved before we have “clearly established” constitu-

tional principles to govern any set of facts, then every

public official will be entitled to qualified immunity for

hundreds of years to come.

A final question is worthy of consideration in light of

this Court’s prior statement that qualified immunity pro-

tects “all but the plainly incompetent or those who know-

ingly violate the law”. Malley v. Briggs, 475 U.S. 335

(1986). What public policy consideration justifies

granting qualified immunity to police officers who are

so incompetent that they are totally unaware of even the

general case law (if that is what Frisby is) governing the

situations which confront them? It would be one thing

if the Respondents in this case possessed a minimal grasp

of the principles of residential picketing after Frisby, but

simply stumbled when confronted with a legitimate gray

area of interpretation. This case, however, presents

quite another situation. Not only did the Defendants

not know about Frisby, but it was their understanding

that the ordinance could be enforced as a total ban on

residential picketing. This is directly contrary to one

of the precise holdings of Frisby. The award of quali-

fied immunity under such circumstances is contrary to

the very principles underlying that doctrine.

ame

3. Stare Decisis and Confidence In The Courts.

The most important reasons for granting the writ are

based upon the principle of stare decisis: to preserve

public confidence in the decisions of this Court and

to remind the lower courts of their duty to follow this

Court’s binding precedents. “If the doctrine of stare

decisis has any meaning at all, it requires that people in

their everyday affairs be able to rely on our decisions

and not be needlessly penalized for such reliance.”

United States v. Mason, 412 U.S. 391, 399-400, (1973).

This is consistent with this Court’s statement in Mazs-

lin Industries, U.S. v. Primary Steel, Inc., 497 U.S. 116,

131, (1990):

Once we have determined a statute’s clear mean-

ing, we adhere to that determination under the doc-

trine of stare decisis ....

The lower courts are bound by even summary deci-

sions by this Court until such time as the Court informs

them that they are not. Hicks v. Miranda, 422 U.S. 323,

345-46 (1975).

The duty to adhere to the statutory decisions of this

Court has not been lost on some of the other federal cir-

cuits. As the Third Circuit has stated:

As a lower court, we are bound by both the Sup-

reme Court’s choice of legal standard or test and

by the result it reaches under that standard or test.

As Justice Kennedy has stated, courts are bound to

adhere not only to the results of cases, but also “‘to

their explications of the governing rules of law.”

[citations omitted] Our system of precedent or

stare decisis is thus based on adherence to both the

reasoning and result of a case, and not simply to the

result alone.

Planned Parenthood v. Casey, 947 F.2d 682, 691-92 (3rd

Cir. 1991).

Likewise, the Sixth Circuit had adhered to this court’s

statutory interpretations in spite of some uncertainty as

to governing standards:

[B]ecause the Akron public indecency ordinance

is virtually identical to the Indiana statute consid-

ered in Barnes, the district court was bound to

adhere to the specific result of that case, even

though the Supreme Court failed to agree on gov-

erning standards.

Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135

(6th Cir. 1994). The Eighth Circuit was unmoved by this

authority; should its decision below stand without com-

ment by this Court, the public can rightly question

whether this Court’s constitutional decisions will have

any real-life impact beyond the week they are decided.

CONCLUSION

For the reasons set forth above, Petitioners pray that

their Petition For Writ Of Certiorari be granted.

Respectfully submitted,

THOMAS W. CONDIT