Appendix — Veneklase v. City of Fargo

Supreme Court, U.S.

rig 28D

96 120 JUL 22 19%,

OFFICE OF THE CLERK

QS

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

CHRIS VENEKLASE, PAUL B. MEHL,

DAROLD 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

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

THOMAS W. CoNDIT

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

(?)

TABLE OF CONTENTS

APPENDIX A — Opinion of the United States Court of

Appeals for the Eighth Circuit, filed March 6, 1996...

APPENDIX B — Memorandum And Order of United

States District Court For The District of North

Dakota, Southeastern Division, filed February

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APPENDIX C — Order Denying Petition For Rehearing

And Suggestion For Rehearing En Banc in U.S.

Court of Appeals for the Eighth Circuit (April 24,

| Pe ee eee ee eee re

APPENDIX D — Affidavit of Christopher Martin

Veneklase, dated September 4, 1994.............

APPENDIX E — Relevant Constitutional Provisions

And Statutes:

— U.S. Constitution AmendmentI..............

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-1515

Chris Veneklase; Paul B. Mehl; Darold Larson;

Nancy Emmel; Jessica Uchtman,

Appellees,

City of Fargo; David Todd; Jim Schalesky;

Jon Holman; Wayne Jorgenson, Sergeant,

City of Fargo Police Department,

Appellants.

Appeal from the United States District Court

for the District of North Dakota

Submitted: October 18, 1995

Filed: March 6, 1996

Before WHITE, Associate Justice (Ret.),* and McMIL-

LIAN and LOKEN, Circuit Judges.

McMILLIAN, Circuit Judge.

The City of Fargo and several of its police officers,

Officer David Todd, Officer Jim Schalesky, Lieutenant

Jon Holman, and Sergeant Wayne Jorgenson (collect-

*The Honorable Byron R. White, Associate Justice of the

United States Supreme Court, (Ret.), sitting by designation, pur-

suant to 28 U.S.C. §294(a).

2a

ively defendant officers) appeal from a final order

entered in the United States District Court for the Dis-

trict of North Dakota granting partial summary judg-

ment to Chris Veneklase, Paul Mehl, Darold Larson,

Nancy Emmel, and Jessica Uchtman (collectively plain-

tiffs) under 42 U.S.C. §1983. Veneklase v. City of

Fargo, No. A3-93-156 (D. N.D. Feb. 17, 1995). Plain-

tiffs are anti-abortion protestors who were arrested by

the defendant officers pursuant to the Fargo Residential

Picketing Ordinance (ordinance) after demonstrating

outside the home of the administrator of a medical

facility in Fargo which provides abortion services. The

district court held that the defendant officers were not

entitled to qualified immunity and that the City was also

liable because it had been deliberately indifferent in

failing to train its police force. For reversal, the defend-

ant officers argue the district court erred in holding

that they were not entitled to qualified immunity; the

City argues the district court erred in holding it liable

under 42 U.S.C. §1983 for deliberately failing to train

its police officers. For the reasons discussed below, we

reverse that part of the district court order denying qual-

ified immunity, decline to consider the appeal of the

City for want of appellate jurisdiction, and remand the

case to the district court for further proceedings con-

sistent with this opinion.

I. Background

On the evening of October 10, 1991, plaintiffs engaged

in a demonstration outside the administrator’s residence.

They walked back and forth, in single file, on the side-

walk in front of the administrator’s home, but their route

included approximately two to three houses on either

side of the administrator’s residence. In addition, one

3a

protestor remained in front of the administrator’s home

at all times. Plaintiffs remained silent and carried no

signs. In response to a complaint, the defendant officers

arrived and informed the demonstrators that their actions

violated the ordinance.! The officers thereafter arrested

those persons who refused to leave (plaintiffs in this

action, with the exception of one protester, a minor).

Although plaintiffs were charged with violating the ordi-

narice, these charges were later dismissed by the county

court judge.

On October 7, 1993, plaintiffs instituted this 42 U.S.C.

§1983 suit in the United States District Court for the

District of North Dakota, alleging, inter alia, that the

defendant officers and the City had violated their First

Amendment right to freedom of speech and their Fourth

Amendment right not to be arrested without probable

I The Fargo Residential Picketing Ordinance in effect on

October 10, 1991, provided:

10-801. Definitions. — For purposes of this article, certain

words and phrases used herein are defined as follows:

1. “Dwelling” means any structure or building, or dwell-

ing unit within a building, which is used as a place of resi-

dence.

2. “Picketing” means the practice of standing, marching,

or patrolling by one of more persons inside or, in front, or

about any premises for the purpose of persuading an occu-

pant of such premises or to protest some action, attitude,

or belief.

10-802. Picketing of dwellings prohibited. — No person shall

engage in picketing the dwelling of any individual in the City

of Fargo.

Fargo Municipal Code, arts. 10-801 to 10-802 (1985). On Feb-

ruary 1, 1993, the City revised the ordinance to prohibit “targeted

residential picketing’? and defined what kinds of activity consti-

tuted “targeted residential picketing.” The amended ordinance,

which this court considered in Kirkeby v. Furness, 52 F.3d 772,

774 (8th Cir. 1995), is not at issue in the present case.

4a

cause.2. On February 17, 1995, in response to the par-

ties cross-motions for summary judgment, the district

court entered a Memorandum and Order in which it

concluded that the City and the defendant officers were

liable to plaintiffs for violation of their First and Fourth

Amendment rights. The district court rejected the

defendant officers’ claim of qualified immunity and also

held that the City had been deliberately indifferent to the

rights of plaintiffs in failing to train its police force.

Slip op. at 35, 43. The defendant officers and the City

timely filed this appeal.

II. Discussion

A. Qualified Immunity

As a threshold matter, we must determine whether we

have jurisdiction over the appeal of the defendant offi-

cers. In a “qualified immunity” case, a district court’s

denial of summary judgment constitutes a final appeal-

able order to the extent that it turns on “abstract issues

of law.” Johnson v. Jones, 1158. Ct. 2151, 2158 (1995).

By contrast, a district court’s pretrial rejection of a prof-

fered qualified immunity defense is not immediately

reviewable if the issue on appeal is whether the pretrial

record is sufficient to create a genuine issue of material

fact. Id. at 2158-59; see also Mitchell v. Forsyth, 472

U.S. 511, 526-30 (1985) (district court order denying

defendant’s motion for summary judgment was immed-

2In addition to their §1983 claim, plaintiffs also alleged

state law claims of malicious prosecution, false arrest, and false

imprisonment.

3The district court granted partial summary judgment in

favor of the defendant officers and the City on all state law claims

and claims for punitive damages. Slip op. at 48-49.

5a

iately appealable collateral order where defendant was

public official seeking qualified immunity and where

issue appealed concerned whether or not certain given

facts showed violation of “clearly established” law). In

the present case, however, the district court denied the

defendant officers’ motion for summary judgment on

the basis that plaintiffs had a clearly established right to

picket in a residential neighborhood and that a reason-

able officer under the circumstances in the present case

could not have believed the arrests of plaintiffs were

lawful. Slip op. at 27-35. Because these issues are legal,

rather than factual, and because the facts required to

determine whether the defendant officers are entitled

to qualified immunity are not genuinely in dispute, we

have jurisdiction.

Government officials performing discretionary func-

tions may rely on the defense of qualified immunity to

shield them from liability for civil damages unless their

conduct violates “clearly established statutory or con-

stitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). See also Malley v. Briggs, 475 U.S. 335, 341

(1986) (qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law’’).

In order for a right to be clearly established, its contours

“must be sufficiently clear that a reasonable person

would understand that what he [or she] is doing violates

that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987) (Anderson).

The district court first concluded that plaintiffs had

alleged a violation of a constitutional right in contending

that the officers had arrested them for picketing on pub-

lic sidewalks and streets. Slip op. at 27. The district

court then determined that, in light of Frisby v. Schultz,

6a

487 U.S. 474, 482-84 (1988) (Frisby), plaintiffs had a

clearly established right to picket in the manner at issue

in the present case. In Frisby, the Supreme Court upheld

the residential picketing ordinance of Brookfield, Wis-

consin* by interpreting its language as prohibiting only

“focused picketing taking place solely in front of a par-

ticular residence.” Frisby, 487 U.S. at 483-88. Conclud-

ing that the Court’s narrowing construction in Frisby

defined the standard for analogous cases, the district

court found that plaintiffs had a clearly established right

to picket outside the administrator’s residence and

adjacent houses on October 10, 1991. Slip op. at 30-32.

The district court further held that no reasonable officer

under the particular circumstances could have believed

that plaintiffs’ arrests were lawful, in light of clearly

established law and the information the defendant offi-

cers possessed, Slip op. at 33-35 (citing Gainor v. Rogers,

937 F.2d 1379, 1384 (8th Cir. 1992)). Thus, the dis-

trict court determined that the defendant officers were

not entitled to qualified immunity under 42 U.S.C.

§ 1983.

On appeal, the defendant officers argue that the dis-

trict court erred in holding that plaintiffs had a clearly

established right to picket along a route encompassing

the Bovard home and the two to three houses on either

side of it. They maintain that some uncertainty remains

after Frisby as to what constitutes “focused” residential

picketing. The defendant officers further contend that,

4The Brookfield residential picketing ordinance, which is

virtually identical to the Fargo ordinance, provided: “It is unlaw-

ful for any person to engage in picketing before or about the

residence or dwelling of any individual in the Town of Brook-

field.” Frisby, 487 U.S. at 477.

7a

even if Frisby clearly established such a right, a reason-

able officer would not have known, on October 10, 1991,

that the arrests of plaintiffs violated their First and

Fourth Amendment rights. Brief for Appellants at 13,

24-25. Because we agree that plaintiffs did not have a

clearly established right after Frisby to picket as they

did on October 10, 1991, we hold that the defendant

officers are entitled to qualified immunity.

In Frisby, the Supreme Court held that the type of

residential picketing prohibited by the Brookfield ordi-

nance — that is, focused picketing taking place solely in

front of a particular residence — was “fundamentally

different from more generally directed means of com-

munication that may not be completely banned in resi-

dential areas.” Frisby, 483 U.S. at 486. The Court there-

fore determined that the Brookfield ordinance struck an

appropriate balance between, on the one hand, the

State’s interest in protecting residential privacy and, on

the other hand, the plaintiff’s First Amendment right to

freedom of speech. See id. at 483-88. Some questions

remain after Frisby, however, as to the meaning of

“focused picketing taking place solely in front of a par-

ticular residence.” See id. at 483.° It may be that where,

as in the present case, at least one protester remains in

The questions regarding the scope of “focused” residential

picketing were well-recognized by the Seventh Circuit when it

considered Frisby on remand:

We appreciate the plaintiff’s concern that it is hard to tell

when picketing is ‘directed at’ a particular home. Will it be

enough to go ’round and ’round the block? Could the pick-

eters march in front of the five houses on either side of the

[targeted residence] ? May they stop for one minute, or two,

or five, in front of the [targeted residence] . . . before mov-

ing along... ? No matter how clear the ordinance seems, a

hundred nice questions may follow in its wake... .

Schultz v, Frisby, 877 F.2d 6, 8 (7th Cir. 1989).

8a

front of the targeted residence at all times, the fact that

other protesters march in front of several houses adjac-

ent to the targeted dwelling does not diminish the “‘foc-

used” character of the picketing. But cf. Vittitow v.

City of Upper Arlington, 43 F.2d 1100, 1107 (6th Cir.

1995), cert. denied, 115 S. Ct. 2276 (1995) (striking

down as unconstitutionally overbroad residential picket-

ing ordinance identical to that in Frisby and rejecting

argument proffered by city that ordinance was violated

whenever one residence could be discerned as the target

of picketing). Whether protesters may, consistent with

the Frisby holding, include houses adjacent to the tar-

geted dwelling on the picketing route, is an issue which

we need not resolve today, yet it is a significant question

which lingers after Frisby.© Thus, upon a careful reading

of Frsby, we do not find that its holding defined the

6In Madsen v. Women’s Health Center, Inc., 1148S. Ct. 2516,

2529-30 (1994) (Madsen), the Supreme Court struck down a state

court injunction prohibiting anti-abortion protestors from picket-

ing within 300 feet of the residences of abortion clinic staff. Jd.

at 2529-30. The Court held that the 300-foot buffer zone around

staff residences swept more broadly than necessary to protect resi-

dential privacy, because it would ban general marching through

residential neighborhoods, or even walking a route in front of an

entire block of houses. Nevertheless, the Court recognized a dif-

ference between generally applicable ordinances and injunctions,

stating that ordinances “represent a legislative choice regarding the

promotion of particular societal interests,’ whereas injunctions

are “remedies imposed for violations (or threatened violations) of

a legislative or judicial decree.” Jd. at 2524. This distinction, the

Court reasoned, “require[d] a somewhat more stringent applica-

tion of general First Amendment principles in this context.” Jd.

Although the qualified immunity issue before us concerns whether

plaintiffs had a clearly established right on October 10, 1991, to

picket as they did in front of the administrator’s home, we note

that Madsen left unresolved the question whether an ordinance

may prohibit individuals from picketing in front of the homes

adjacent to a targeted residence.

9a

outer parameters of “focused” residential picketing. We

hold that plaintiffs did not have a clearly established

right on October 10, 1991, to picket in a route encom-

passing the Bovard residence and the two to three homes

on either side of it. We further hold that the arrest of

plaintiffs by the defendant officers was objectively

reasonable in light of the legal rules in existence at the

time the action occurred. See Anderson, 483 U.S. at

640. We therefore conclude that the defendant officials

are entitled to qualified immunity under 42 U.S.C.

§ 1983.

B. Municipal Liability

For reversal, the City argues that the district court

erred in holding that (1) the City’s training program was

inadequate to train its police officers to properly enforce

the residential picketing ordinance, (2) the City’s failure

to train its police officers evidenced a “deliberate indif-

ference”’ to plaintiffs’ rights, and (3) the City’s failure to

train its police officers was a moving force behind the

constitutional violation alleged by plaintiffs. See City of

Canton v. Harris, 489 U.S. 378, 388 (1989) (adopting

“deliberate indifference” standard of municipal liability

for failure-to-train claims under 42 U.S.C. § 1983);

Monell v. New York City Dep’t of Social Serv., 436 U.S.

658, 694 (1978) (limiting municipal liability under 42

U.S.C. §1983 to actions occurring pursuant to official

policy or custom).

We conclude, however, that the interlocutory appeal

of the City is not properly before us, in light of Swint v.

Chambers County Comm'n, 514 U.S. : , 115S.

Ct. 1203, 1208 (1995) (Swint). In Swint, the Supreme

Court held that the Court of Appeals had lacked juris-

diction to review on interlocutory appeal the district

10a

court’s denial of summary judgment to the Chambers

County Commission in a suit brought under 42 U.S.C.

§ 1983. Jd. at 1207-12. The Court first noted that the

district court order denying the County Commission’s

summary judgment motion was not appealable as a

collateral order. See id. at 1208;see also Cohen v. Bene-

ficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)

(decisions which are conclusive, which resolve import-

ant questions apart from the merits of the underlying

action, and which are effectively unreviewable on appeal

from final judgment may be appealed immediately as

collateral orders). The Court held that although the

Court of Appeals had jurisdiction to review immediately

the denial of summary judgment to individual police

officer defendants on qualified immunity grounds, it

lacked “pendent party” appellate jurisdiction to review

contemporaneously the unrelated question of the County

Commission’s liability. See Swint, 115 S.Ct. at 1212.

Nevertheless, the Court stated that, “[w]e need not

definitively or preemptively settle here whether or when

it may be proper for a court of appeals with jurisdiction

over one ruling to review, conjunctively, related rulings

that are not themselves independently appealable.” Jd.

This court applied Swint in Kincade v. City of Blue

Springs, 64 F.3d 389, 394-95 (8th Cir. 1995) (Kincade).

In Kincade, several city officials sought review of a denial

of their motion for summary judgment on the plaintiff's

§ 1983 claim; the plaintiff had alleged that the city offi-

cials had violated his First Amendment rights by dis-

charging him from his employment as the City Engineer

because of certain statements he had made regarding the

construction of a local dam. Jd. at 393. We considered

whether, on interlocutory review of a denial of the

defendants’ summary judgment motion, we had pendent

lla

appellate jurisdiction to consider the defendants’ claims

that (1) the plaintiff’s speech was not constitutionally

protected and (2) the plaintiff had failed to establish that

his speech caused his termination. We concluded that

after Swint, pendent appellate jurisdiction would be

appropriate over claims that are “inextricably inter-

twined” with interlocutory appeals concerning the

defense of qualified immunity. See id. at 394. Thus, we

held that we could review the defendants’ claim that

plaintiff's speech was not constitutionally protected,

because that claim was “coterminious with, or subsumed

in” the qualified immunity issue; by contrast, we lacked

pendent appellate jurisdiction to consider the defendants’

causation argument, which presented questions signifi-

cantly different from the qualified immunity issue. See

id. at 395.

Applying our reasoning in Kincade to the present

case, we conclude that the interlocutory appeal of the

City is not “inextricably intertwined” with the question

whether the defendant officers are entitled to qualified

immunity. Because resolution of these two issues requires

entirely different analyses, we hold that the question

whether the City is liable under 42 U.S.C. §1983 for

failing to train its police force is not “coterminious with,

or subsumed in” the qualified immunity issue. Jd. Thus,

we decline to address the appeal of the City.’ See Swint,

115 S. Ct. at 1212; Kincade, 64 F.3d at 395. We are con-

fident, however, that the district court will now recon-

sider its ruling as to the City in light of our resolution of

The defendant officers and the City additional argued that

the district court erred in holding as a matter of law that the resi-

dential picketing ordinance was unconstitutional as applied in the

present case. Because this issue is not necessary to a disposition

of the questions before us today, we need not consider it.

12a

the qualified immunity issue, particularly our determina-

tion that plaintiffs’ arrest was objectively reasonable.

We hold that the defendant officers are entitled to

qualified immunity and that the appeal of the City is

not properly before us at this stage of the proceedings.

Accordingly, we reverse the judgment of the district

court insofar as it denied qualified immunity to the

defendant officers, decline to reach the City’s appeal for

want of appellate jurisdiction, and we remand the case to

the district court for further proceedings consistent with

this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

13a

APPENDIX B

[Filed FEB 17 1995]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

Civil No. A3-93-156

Chris Veneklase, Paul B. Mehl, Darold Larson,

Nancy Emmel, and Jessica Uchtman,

Plaintiffs,

VS.

City of Fargo; Officer David Todd,

Officer Jim Schalesky, Lt. Jon Holman, and

Sgt. Wayne Jorgenson, of the

City of Fargo Police Department,

Defendants.

MEMORANDUM AND ORDER

On October 8, 1993, plaintiffs Chris Veneklase, Paul B.

Mehl, Darold Larson, Nancy Emmel and Jessica Uchtman

filed this civil action against defendants Officer David

Todd, Officer Jim Schalesky, Lt. Jon Holman, Sgt.

Wayne Jorgenson and the City of Fargo seeking redress

for alleged violations arising out of the unconstitutional

enforcement of Fargo Municipal Code § 10-0802. Plain-

tiffs’ complaint sets forth four causes of action based on

federal constitutional and state law theories. Pending

l4a

before the court are defendants’ motion for summary

judgment, plaintiffs’ motion for partial summary judg-

ment and plaintiffs’ motion for oral argument on the

pending motions.

I. BACKGROUND

Prior to October 10, 1991, the City of Fargo enacted a

residential picketing ordinance which provided as follows:

10-0801. Definitions.—For purposes of this arti-

cle, certain words and phrases used herein are de-

fined as follows:

1. “Dwelling”? means any structure or building, or

dwelling unit within a building, which is used as a

place of residence.

2. “Picketing” means the practice of standing,

marching, or patrolling by one or more persons

inside of, in front, or about any premises for the

purpose of persuading an occupant of such premises

or to protest some action, attitude or belief... .

10-0802. Picketing of dwellings prohibited.—No

person shall engage in picketing the dwelling of any

individual in the City of Fargo....

Fargo Municipal Code § 10-0801 and § 10-0802 (1985)

(amended Feb. 1, 1993). This ordinance is similar to an

ordinance enacted in Brookfield, Wisconsin. The Brook-

field ordinance, which was upheld by the United States

Supreme Court in Frisby v. Schultz, contains a flat ban

on targeted residential picketing, providing: “It is unlaw-

ful for any person to engage in picketing before or about

the residence or dwelling of any individual in the Town

of Brookfield.” Frisby v. Schultz, 487 U.S. 474, 477

(1988).

a |

15a

On the evening of October 10, 1991, plaintiffs parti-

cipated in a public prayer vigil! in the residential neigh-

borhood of Jane Bovard, administrator of the Women’s

Health Organization. Plaintiffs and ten to fifteen other

individuals convened in Bovard’s neighborhood between

the hours of 9:30 p.m. and 10:30 p-m. and began walk-

ing north and south on a public sidewalk in front of

Bovard’s residence and five to eight other homes. The

prayer participants/demonstrators walked single file,

spacing themselves several feet apart. They moved con-

tinuously, carried no signs, remained silent, and limited

their activities to public streets and sidewalks on Edge-

wood Drive. Plaintiffs did not stop in front of Bovard’s

residence or any other home in the neighborhood and

they did not block or impede access to or from private

property.

The Fargo Police Department received a complaint

about residential picketing in Bovard’s neighborhood and

lin their Statement of Facts in Dispute, defendants assert

that they “do not know whether Plaintiffs were engaging in prayer

when they picketed the Bovard residence between 9:30 and 10:30

p.m.” (Defs.’ Statement of Facts in Dispute at 1). However, in

his police report of the incident, Lt. Holman stated: “It appeared

[plaintiffs and other participants] were praying/meditating. Some

of the protestors were walking with their hands folded and some

were carrying rosary beads.”” (App. to Pls.’ Mot. for Partial Summ.

J. at 25-26). The distinction between picketing and praying is

apparently important to plaintiffs because they contend that their

activities do not fall within the definition of “picketing” as set

forth in Fargo Municipal Code §10-0801. For the purposes of

analyzing plaintiffs’ claims, the court will assume, without decid-

ing, that plaintiffs’ activites on the evening of October 10, 1991,

fall within the definition of “picketing” under Fargo Municipal

Code § 10-0801.

?Jane Bovard’s address is 2820 Edgewood Drive, Fargo,

North Dakota.

16a

Officers Wayne Jorgenson, David Todd and Lt. Jon C.

Holman responded to the call. The officers observed the

prayer participants/demonstrators for approximately ten

minutes before Holman approached plaintiffs and the

other participants and asked them to discontinue their

activities. Holman discussed the issue with Veneklase for

several minutes. During their conversation, Veneklase

allegedly explained that the participants were not picket-

ing, they were simply engaging in prayer. Veneklase also

claimed that he had read the Fargo antipicketing ordi-

nance and that he did not believe that plaintiffs’ conduct

fell within the scope of the ordinance. Lt. Holman alleg-

edly indicated that he was broadly interpreting the Fargo

antipicketing ordinance and that plaintiffs would be

arrested if they continued their activities.2 Veneklase

then allegedly conveyed the substance of this conversa-

tion with Holman to the other participants and a number

of the people decided to leave. Plaintiffs refused to sus-

pend their activities so defendants arrested them for pick-

eting in a residential neighborhood.4

The police officers transported plaintiffs to the Cass

County Jail and held Veneklase, Mehl, Larson and Emmel

overnight because they refused to pay a $50 bond. Plain-

tiff Uchtman, a minor at the time of her arrest, was

3Defendants contend that “Lieutenant Holman did not

indicate that he was giving ‘broader interpretation’ to the ordi-

nance, however, he did ask the picketers to discontinue their

activities and, when they refused, he did place them under arrest.”

(Defs.’ Statement of Facts in Dispute at 2).

4 «1 jeutenant Holman, the officer in charge at the scene,

indicated that one factor he used in determining if protesters

were engaging in unlawful activity was the time of the day that

the picketing occurred.” (Defs.’ Statement of Facts in Dispute

at 2).

17a

detained for only a few hours and then released to her

parents.

The City of Fargo filed charges in Cass County Dis-

trict Court against plaintiffs Veneklase, Mehl, Larson and

Emmel for violating Fargo Municipal Code § 10-0802.

The City did not file charges against Uchtman. On Febru-

ary 18, 1992, the Honorable Frank L. Racek dismissed

the charges against plaintiffs, ruling that the picketing

ordinance was constitutional on its face, but unconstitu-

tional as applied to plaintiffs and the other individuals

who participated in the prayer vigil/demonstration near

the Bovard residence on October 10, 1991.5 Plaintiffs

then filed this action seeking redress for the allegedly

unconstitutional enforcement of Fargo’s residential pick-

eting ordinance.

Il. SUMMARY JUDGMENT MOTIONS

A. SUMMARY JUDGMENT STANDARDS

Summary judgment is appropriate if there is no genu-

ine issue of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. Pro. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A

dispute is genuine when ‘the evidence is such that a rea-

sonable jury could return a verdict for the non-moving

party.’ ”’ Westchem Agr. Chemicals, Inc. v. Ford Motor

Co., 990 F.2d 426, 429 (8th Cir. 1993) (quoting Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Rule 56 of the Federal Rules of Civil Procedure “‘man-

> Defendants note that pro-life demonstrators picketed in

Fargo residential areas after the Cass County Court issued its opin-

ion, but Fargo police officers made no additional arrests pursuant

to the residential picketing ordinance.

18a

dates the entry of summary judgment... against a party

failing to make a showing sufficient to establish the exis-

tence of an element essential to that party’s case.” Celo-

tex, 477 U.S. at 322. The court considering a motion for

summary judgment must view the evidence in the light

most favorable to the nonmoving party who enjoys ‘‘the

benefit of all reasonable inferences to be drawn from the

facts.”” Vacca v. Viacom Broadcasting of Missouri, Inc.

et al., 875 F.2d 1337, 1339 (8th Cir. 1989) (citation

omitted). Summary judgment is improper if the court

finds a genuine issue of inaterial fact; however, “‘the mere

existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported

motion for summary judgment... .’’ Commercial Unton

Insurance Co. v. Schmidt, 967 F.2d 270, 271-72 (8th Cir.

1992) (citation omitted). The issue is whether the evi-

dence submitted presents a sufficient disagreement about

the material facts so that submission to a jury is required,

or whether the evidence is so one-sided that a party must

prevail as a matter of law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986).

B. PLAINTIFFS’ MOTION FOR SUMMARY JUDG-

MENT

On September 15, 1994, plaintiffs filed a motion for

partial summary judgment requesting this court to decide

all questions of law relating to the constitutionality of

Fargo Municipal Code § 10-0802 as written and as

applied to plaintiffs’ conduct on October 10, 1991. Spe-

cifically, plaintiffs urge this court to find that defendants

violated plaintiffs’ federal constitutional mghts and to

find that defendants were acting under color of state law

and their acts were performed pursuant to the official

19a

policies and customs of the City of Fargo, thereby giving

rise to liability for damages under 42 U.S.C. § 1983.

(Pls.” Comp] at 6-7). Accordingly, plaintiffs request that

this court e1.:.: sudgment in their favor on the first and

second causes of action set forth in their complaint.

1. Fargo Municipal Code § 10-0802 is Constitutional

on Its Face.

Fargo Municipal Code § 10-0802, like the antipicket-

ing ordinance reviewed by the United States Supreme

Court in Fnsby v. Schultz, operates at the core of the

First Amendment because it prohibits demonstrators

from picketing on an issue of public concern. See Frisby

v. Schultz, 487 U.S. 474, 479 (1988). “There can be no

doubt that in prohibiting peaceful picketing on the public

streets and sidewalks in residential neighborhoods, [the

Fargo ordinance] regulates expressive conduct that falls

within the First Amendment’s preserve.” Carey v. Brown,

447 U.S. 455, 460 (1980) (citations omitted). In light of

our nation’s profound commitment to the principle that

debate on public issues should be “uninhibited, robust,

and wide-open”, the United States Supreme Court has

“traditionally subjected restrictions on public issue pick-

eting to careful scrutiny.” Frisby, 487 U.S. at 479 (cita-

tions omitted). Likewise, the First Amendment right

to peaceable assembly is equally essential to “the security

of the Republic, the very foundation of constitutional

government.” Thomas v. Collins, 323 U.S. 516, 530

(1945); DeJonge v. Oregon, 299 U.S. 353, 365 (1937).

©The Court in Thomas v. Collins stated:

It is therefore in our tradition to allow the widest room

for discussion, the narrowest range for [free speech] restric-

tion, particularly when this right is exercised in conjunction

20a

A picketer’s right to demonstrate is not unlimited,

however. Id. ‘‘[E] ven protected speech is not equally per-

missible in all places and at all times.” Jd. at (citation

omitted). In defining the limits on protected speech, the

United States Supreme Court has often focused on the

nature of the forum the speaker seeks to employ. For

example, in Perry Education Association v. Perry Local

Educators’ Association, the Court ruled that the rights of

the State to restrict expressive activity in places tradi-

tionally devoted to assembly and debate, such as public

sidewalks, is sharply circumscribed. Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). In

this case, plaintiffs limited their demonstration to public

streets and sidewalks in a residential neighborhood. The

Frisby court clarified that ‘‘a public street does not lose

its status as a traditional public forum because it runs

through a residential neighborhood.” Frisby, 487 U.S. at

480. Therefore, the constitutionality of Fargo Municipal

Code § 10-0802 must be judged against the stringent

standards established to test restrictions on speech in

traditional public fora:

‘In these quintessential public for[a], the govern-

ment may not prohibit all communicative activity.

For the State to enforce a content-based exclusion it

must show that its regulation is necessary to serve a

compelling state interest and that it is narrowly

drawn to achieve that end. ... The State may also

enforce regulations of the time, place, and manner

of expression which are content-neutral, are nar-

with peaceable assembly. It was not by accident or coinci-

dence that the righs to freedom in speech and press were

coupled in a single guaranty with the rights of the people

peaceably to assemble and to petition for redress of griev-

ances. All these, though not identical, are inseparable. They

are cognate rights, and therefore are united in the First

Article’s assurance.

Thomas v. Collins, 323 U.S. 516, 530 (1945) (citations omitted).

2la

rowly tailored to serve a significant government

interest, and leave open ample alternative channels

of communication.’

Id. at 481 (quoting Perry, 460 U.S. at 45).

Since it is clear that plaintiffs were picketing in a tradi-

tional public forum, the next issue the court must con-

sider is whether the Fargo ordinance is content-neutral.

See Frisby, 487 U.S. at 481 (‘‘As Perry makes clear, the

appropriate level of scrutiny is initially tied to whether

the statute distinguishes between prohibited and per-

mitted speech on the basis of content.”). Plaintiffs argue

that Fargo Municipal Code § 10-0802 is unconstitutional

on its face because it is content-based. Although the

United States Supreme Court in Frisby found that an

ordinance worded almost identically to the Fargo anti-

picketing ordinance was facially constitutional, plaintiffs

contend that the Fargo Ordinance is unconstitutional on

its face because the definition section of Fargo Municipal

Code § 10-0801(2) favors certain types of speech over

others. Section 10-0801(2) defines picketing as “the prac-

tice of standing, marching, or patrolling by one or more

persons inside of, in front, or about any premises for the

purpose of persuading an occupant of such premises or to

protest some action, attitude or belief. .. .”” Fargo Muni-

cipal Code § 10-0801 (1985). Plaintiffs argue that the

definition section, when considered in context with the

antipicketing ordinance, impermissibly distinguishes

between messages intended to inform and messages

intended to persuade. Since the ordinance permits speak-

ers to convey some messages while forbidding other mes-

sages, plaintiffs contend that it is content-based and thus

unconstitutional on its face.’

7 Plaintiffs appear to argue that a content-specific ordinance

is invalid per se. This argument ignores the principle that the con-

[ footnote continued]

22a

In First Amendment free speech cases such as the case

at hand,

[t]he principal inquiry in determining content neu-

trality . . . is whether the government has adopted a

regulation of speech because of disagreement with

the message it conveys. The government’s purpose is

the controlling consideration. A_ regulation that

serves purposes unrelated to the content of expres-

sion is deemed neutral, even if it has an incidental

effect on some speakers or messages but not others.

Government regulation of expressive activity is con-

tent neutral so long as it is “justified without refer-

ence to the content of the regulated speech.”

Ward, et al. v. Rock Against Racism, 491 U.S. 781, 791

(1989) (citations omitted). The principal justification for

and primary state interest served by the Fargo antipick-

eting ordinance is protection of the tranquility and pri-

vacy of the home.® This purpose/interest ‘ ‘ha[s] noth-

tent-based statute may be upheld if the state can show that the

“regulation is necessary to serve a compelling state interest and

that it is narrowly drawn to achieve that end.” Perry, 460 U.S.

at 45.

8 Fargo Municipal Ordinance 2190, the ordinance that

enacted article 10-12 of chapter 10 of the revised ordinances of

1965 of the City of Fargo (including Fargo Municipal Code

§ §10-0801 and 10-0802) relating to residential picketing, pro-

vides, in pertinent part:

Whereas, the protection and preservation of the home is

the keystone of democratic government; and

Whereas, the public health and welfare and good order

of the community require that citizens enjoy a feeling of

well-being and tranquillity while in their homes; and

Whereas, it is imperative that when citizens are absent

from their homes, they carry with them the sense of security

inherent in the assurance that they may return to the enjoy-

ment of their homes; and

[footnote continued]

23a

ing to do with content,’ and it satisfies the requirement

that time, place, or manner regulations be content neu-

tral.” Id. at 792 (quoting Boos v. Barry, 485 U.S. 312,

320 (1988)). See also Madsen, et al. v. Women’s Health

Center, Inc., 114 S. Ct. 2516, 2524 (1994) (“That peti-

tioners all share the same viewpoint regarding abortion

does not in itself demonstrate that some invidious con-

tent- or viewpoint-based purpose motivated the issuance

of the order.”). The court acknowledges that the anti-

picketing ordinance at issue in this case may have an inci-

dental effect on some speakers or messages. However,

since Fargo’s purposes for promulgation of the ordinance

are unrelated to the content of the expression it seeks to

regulate, the court finds that the ordinance is content-

neutral.9 Since the Fargo antipicketing ordinance is con-

tent-neutral, the proper test to apply in evaluating the

constitutional validity of the picketing ban is whether the

Whereas, the practice of picketing before or about resi-

dences and dwellings causes emotional disturbance and dis-

tress to the occupants and has as its object, the harassing of

such occupants;...

Fargo Ordinance 2190 (adopted Feb. 1985).

%In footnote 3 on page 9 of their brief in support of plain-

tiffs’ motion for partial summary judgment, plaintiffs raise an

equal protection claim under the Fourteenth Amendment. Plain-

tiffs argue that the definition of “picketing” set forth in Fargo

Municipal Ordinance section 10-0801 is content-based and there-

fore violates plaintiffs’ rights to equal protection as well as their

right to free speech.

The court is not persuaded by plaintiffs’ argument. On its face,

the ordinance prohibits picketing without regard to the cause being

advanced. Furthermore, Fargo’s purposes for promulgation of the

ordinance are unrelated to the content of the expression it seeks to

regulate. Since the ordinance does not discriminate among pickets

based on the subject matter of their expression, plaintiffs’ Four-

teenth Amendment equal protection rights were not violated.

24a

‘

ordinance is “ ‘narrowly tailored to serve a significant

government interest’ and whether it ‘leaves[s] open

ample alternative channels of communication.’ ”’ Frisby,

487 U.S. at 482 (quoting Perry, 460 U.S. at 45).

Like the Frisby Court, this court will consider the pre-

cise scope of the ordinance before applying this balancing

test. A review of the Frisby Court’s analysis of the scope

of the Brookfield ordinance may assist this court in con-

struing the Fargo ordinance.

The ordinance reviewed in Frisby provided: “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.” Jd. at 477 (citation omitted). The

district court and the court of appeals had described the

Brookfield ordinance as one which banned “‘all picketing

in residential areas.”” Jd. at 482. Conversely, the United

States Supreme Court determined that “the use of the

singular form of the words ‘residence’ and ‘dwelling’ sug-

gest[ed] that the ordinance [was] intended to prohibit

only picketing focused on, and taking place in front of, a

particular residence.” Jd. The Court noted that to the

extent the lower courts endorsed a broader reading of the

ordinance, they “ran afoul of the well-established princi-

ple that statutes will be interpreted to avoid constitu-

tional difficulties.” Jd. at 483 (citations omitted). Under

the Court’s narrow reading of the Brookfield ordinance,

the antipicketing ban was a limited one; “only focused

picketing taking place solely in front of a particular resi-

dence is prohibited.” Jd.

The Frisby Court gathered support for its narrow read-

ing of the ordinance from representations made by coun-

‘sel for the Town of Brookfield. Jd. The town indicated

that it would take and enforce ‘a limited view of the

‘picketing’ proscribed by the ordinance. . . . General

25a

marching through residential neighborhoods, or even

walking a route in front of an entire block of houses, is

not prohibited by this ordinance.” Jd. (citations omitted).

Upon review of the antipicketing ordinance in this case

and the principles set forth in Frisby, the court finds that

Fargo Municipal Code § 10-0802 may be narrowly con-

strued to avoid constitutional difficulties. The Fargo ordi-

nance, like the Brookfield ordinance, uses the singular

form of the word “dwelling,” thereby indicating that the

antipicketing ban is a limited one. Furthermore, the court”

finds that in order to avoid invalidation of the ordinance

in its entirety, the court must construe the regulation to

prohibit only picketing focused on, and taking place

solely in front of, a particular residence.

Next, this court will consider whether the Fargo ordi-

nance, as construed, leaves open ample alternative chan-

nels of communication. In considering this part of the

balancing test, the Court in Frisby accepted the appell-

ants’ explanation that the limited nature of the picketing

prohibition made it self-evident that ample alternative

channels of communication remained:

“Protesters have not been barred from the residen-

tial 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 mails. They may contact residents by

telephone, short of harassment.”’

Frisby, 487 U.S. at 484 (citation omitted).

Similarly, this court finds that the Fargo antipicketing

ordinance and accompanying definitions do not sweep all

activities within reach of the ordinance. Pro-life demon-

strators have not been barred from residential neighbor-

26a

hoods. They may enter Fargo neighborhoods, travel door-

to-door, distribute literature in person or through the

mail, and contact residents by telephone. The court is

satisfied that the ordinance, as narrowed, leaves open

alternative channels of communication.

The next issue this court must address is whether

Fargo Municipal Code § 10-0802 serves a significant

government interest. Defendants assert that the protec-

tion of the well-being, tranquility, and privacy of the

home is the government interest served by the ordinance.

(Defs.’ Br. in Support of Defs.’ Mot. for Summ. J. at 3-6;

see supra note 7). The court agrees that the protection of

residential privacy is, without question, a significant gov-

ernment interest.

Finally, this court must determine whether the Fargo

antipicketing ordinance is narrowly tailored to serve the

significant government interest in the protection of resi-

dential privacy. In other words, this court must decide

whether the statute protects only unwilling recipients of

the demonstrators’ communication.

A statute is narrowly tailored if it targets and elimi-

nates no more than the exact source of the “evil” it

seeks to remedy. A complete ban can be narrowly

tailored, but only if each activity within the pro-

scription’s scope is an appropriately targeted evil.

Frisby, 487 U.S. at 485 (citation omitted). The Court in

Frisby concluded that a complete prohibition of focuse.

picketing taking place solely in front of a particular res,

dence was necessary, and thus narrowly tailored:

The type of focused picketing prohibited by the

Brookfield ordinance is fundamentally different

from more generally directed means of communi-

cation that may not be completely banned in resi-

ining |

27a

dential areas. See, e.g., Schneider, Supra, at 162-163

(handbilling); Martin, supra (solicitation); Murdock

v. Pennsylvania, 319 U.S. 105 (1943) (solicitation).

See also Gregory v. Chicago, supra (marching). Cf.

Perry, 460 U.S., at 45 (in traditional public forum,

“the government may not prohibit all communica-

tive activity”). In such cases “the flow of informa-

tion [is not] into ...household[s], but to the pub-

lic.” Organization for a Better Austin v. Keefe, 402

U.S. 415, 420 (1971). Here, in contrast, the picket-

ing is narrowly directed at the household, not the

public. The type of picketers banned by the Brook-

field ordinance generally do not seek to disseminate

a message to the general public, but to intrude upon

the targeted resident, and to do so in an especially

offensive way. Moreover, even if some such picket-

ers have a broader communicative purpose, their

activity nonetheless inherently and offensively in-

trudes on residential privacy. The devastating effect

of targeted picketing on the quiet enjoyment of the

home is beyond doubt ....

The First Amendment permits the government to

prohibit offensive speech as intrusive when the

“captive” audience cannot avoid the objectional

speech. . . . The target of the focused picketing

banned by the Brookfield ordinance is just such a

“captive.” . . . Accordingly, the Brookfield ordi-

nance’s complete ban of that particular medium

of expression is narrowly tailored.

Frisby, 487 U.S. at 486-88.

Like the Frsby Court, this court finds that Fargo

Municipal Code § 10-0802, as construed, is narrowly

tailored to protect only unwilling recipients of the com-

munications.” Jd. at 485-88. Picketing focused on, and

28a

taking place directly in front of, a particular residence is

inherently offensive and intrudes on the privacy of the

home. Jd. “The resident [who is the target of focused

picketing] is figuratively, and perhaps literally, trapped

within the home, and because of the unique and subtle

impact of such picketing is left with no ready means of

avoiding the unwanted speech.” Jd. at 487. The Fargo

ordinance, as narrowed, only seeks to eliminate the “evil”

presented by unwelcome residential picketers who are

demonstrating solely in front of one home. Accordingly,

this court finds that the Fargo antipicketing ordinance is

narrowly tailored to serve a substantial government pur-

pose and that the ordinance, as narrowed, provided ample

alternative channels of communication.

Plaintiffs also assert that the Fargo antipicketing ordi-

nance is unconstitutionally vague because it would be

difficult for an average person to know whether the pur-

pose of any given message is to inform or to persuade or

to protest. Plaintiffs also contend that the protest/per-

suade standard is ambiguous and therefore subject to

arbitrary enforcement.

The United States Supreme Court in Kolender v. Law-

son noted that “the void-for-vagueness doctrine requires

that a penal statute define the criminal offense with suffi-

cient definiteness that ordinary people can understand

what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.”

Kolendcer, et al. v. Lawson, 461 U.S. 352, 357 (1983)

(citations omitted). A statute will be held void for vague-

ness if the conduct forbidden by it is so unclearly defined

that persons “of common intelligence must necessarily

guess at its meaning and differ as to its application.” Con-

nally v. General Construction Co., 269 U.S. 385, 391

(1926). “[B]ecause we assume that man is free to steer

29a

between lawful and unlawful conduct, we insist that laws

give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may

act accordingly.” Grayned v. City of Rockford, 408 U.S.

104, 108 (1972). “Although the doctrine focuses both on

actual notice to citizens and arbitrary enforcement, . .

the more important aspect of the vagueness doctrine ‘is

not actual notice, but the other principal element of the

doctrine—the requirement that a legislature establish

minimal guidelines to govern law enforcement.’ ” Kolen-

der, 461 U.S. at 357-58 (quoting Smith v. Goguen, 415

U.S. 566, 574 (1974)). “A vague law impermissibly

delegates basic policy matters to policemen, judges, and

juries for resolution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary and discrimina-

tory application.” Grayned, 408 U.S. at 108-09 (footnote

omitted).

Upon review of the provisions of the Fargo antipicket-

ing ordinance, the court concludes that the Fargo ordi-

nance sufficiently defines boundaries for citizens, police,

juries, and appellate judges. Grayned, 408 U.S. at 109,

114 (citation and footnote omitted). Furthermore, the

court finds that the ordinance, as narrowed, establishes

minimal guidelines for law enforcement. Therefore, the

court holds that Fargo Municipal Code § 10-0802 is not

unconstitutionally vague.

In summary, this court finds that the Fargo antipicket-

ing ordinance is constitutional on its face.

2. Fargo Municipal Ordinance 10-0802 is Unconstitu-

tional as Applied.

Plaintiffs argue that defendants interpreted Fargo

Municipal Code § 10-0802 to ban all residential picketing

if the purpose of such demonstrations is to persuade an

30a

occupant of such premises or to protest some action, atti-

tude or belief. According to plaintiffs, the City of Fargo’s

official policy for enforcing the ordinance disregarded the

narrowing construction required by Frisby. Furthermore,

plaintiffs contend that when the defendant police officers

arrested plaintiffs pursuant to this policy, their applica-

tion of the ordinance was unconstitutionally overbroad

because plaintiffs’ demonstration did not take place sole-

ly in front of a particular residence. Accordingly, plain-

tiffs argue that the antipicketing ordinance was unconsti-

tutional as applied.

Fargo Municipal Code § 10-0802 provides: “‘No per-

son shall engage in picketing the dwelling of any indivi-

dual in the City of Fargo.” When read in conjunction

with § 10-0802 (definitions), the ordinance appears to

ban all picketing initiated for the purposes of protesting

some action or persuading an occupant of the dwelling

picketed. Pursuant to Frisby v. Schultz, a total ban on

residential picketing is unconstitutional. Frisby, 487 U.S.

at 486. Therefore, in order to avoid constitutional diffi-

culties, this court has construed the statute to prohibit

only focused picketing taking place solely in front of a

particular residence. Thus, the issue before this court is

whether defendants properly applied the ordinance as

narrowed.

On the evening of October 10, 1991, plaintiffs and the

other demonstrators walked north and south on Edge-

wood Drive in front of Bovard’s residence and five to

eight other homes.!° They did not limit their demonstra-

10 Defendants claim: “The protestors actually walked two or

three houses south of Bovard’s home, turned around and walked

north back to the Bovard home and two or three houses north of

her home where they again turned around and retraced their

3la

tion to one household. They disseminated a message to

the public.

Furthermore, the manner in which they conveyed their

message was neither unduly intrusive nor offensive. The

demonstrators walked single file, spacing themselves sev-

eral feet apart. They moved continuously, carried no

signs, remained silent, and limited their activities to pub-

lic streets and sidewalks. Plaintiffs did not stop in front

of Bovard’s residence or any other home in the neighbor-

hood. They did not block or impede access to or from

private property. Accordingly, the court finds that plain-

tiffs’ demonstration, as described in the testimony and

affidavits before the court, does not fall within the prohi-

bition of the Fargo antipicketing ordinance as construed

by this court."

route. At all times at least one or more protestors were in front of

Jane Bovard’s home.” (Defs.’ Statement of Material Facts Not in

Dispute at 2). Similarly, plaintiffs claim: ‘Plaintiffs moved contin-

ually up and down the public sidewalk past at least five and one

half residences . . . and possibly as much as six to eight residential

lots . . ., including Bovard’s.” (Pls.’ Statement of Material Facts

Not in Dispute at 2).

111 ike the Cass County Court, this court finds:

In the case involving the Veneklase Defendants, the act-

ions of the picketers were also confined to the public side-

walk. They were parading over an area in excess of 130

yards. They were engaged in prayer as they walked, and

carried no signs. There was no chanting or other disruptive

behavior taking place. It is true that the administrator of

the Fargo Women’s Health Organization lived in one of the

houses along the protesters’ path, but such a fact alone can-

not be used to prohibit the Defendants’ activity.

The path of the picketers was expansive, their conduct was

orderly, they were on the public streets and sidewalk, and

there is no evidence as to how many times they marched in

front of any particular residence. The only evidence before

[ footnote continued]

32a

In this case, defendants gave undue emphasis to Fargo

residents’ privacy interest at the expense of plaintiffs’

First Amendment rights. Cf. Bolger, et al. v. Youngs Drug

Products Corp., 463 U.S. 60, 83-84 (1983) (Stevens, J.,

concurring in judgment) (In contrast to regulation of

communications due to the ideas expressed, which

“strikes at the core of First Amendment values, . . . regu-

lations of form and context may strike a constitutionally

appropriate balance between the advocate’s right to

convey a message and the recipient’s interest in the qua-

lity of his environment.”’). The court recognizes the

state’s substantial interest in protecting residential pn-

vacy and acknowledges that plaintiffs’ conduct might

have invaded the privacy of the residents on Edgewood

Drive. Frisby, 487 U.S. at 487 (“even a solitary picket

can invade residential privacy”). However, the court also

finds that the degree of their intrusiveness was minor.

Plaintiffs were silent. Their presence would have gone

unnoticed unless the neighborhood residents looked out

their windows or left their homes. Furthermore, there is

no evidence in the record indicating that plaintiffs

blocked access to a residence or interfered with domestic

tranquility in any other manner. Accordingly, the court

finds that the Fargo residential picketing ordinance as

the Court is that at any residence they only made “momen-

tary” stops. There is no claim of excessive noise or any

other threatening behavior.

The enforcement of Fargo’s Picketing Ordinance against

the Defendants in the above cases impermissibly infringed

on their First Amendment rights. In these cases, although

Fargo’s ordinance is narrowly tailored, it was not narrowly

applied.

City of Fargo v. Copper, et al., No. CR-91-3466 & CR-91-3467, at

11, 13 (Cass County Ct., N.D., Feb. 18, 1992).

——

33a

applied in this case eliminated more than the exact source

of evil the city legislators sought to remedy.!”

Defendants argue that a continuous line of picketers

marching slowly in front of Bovard’s home is the func-

tional equivalent of the type of focused picketing de-

scribed in Frisby and properly proscribed by the Town of

Brookfield. (Br. in Support of Defs.’ Mot. for Summ. J.

at 4 (quoting Vittitow v. City of Upper Arlington, 830

F.Supp. 1077, 1081 (S.D. Ohio 1993), rev’d, No. 93-

4034/4086 (6th Cir. Jan. 12, 1995))). “In short, the

harm [Bovard] experienced during Plaintiffs’ picketing

rises to the level of harm resulting from the invasion of

residential privacy described in Frisby.” Id.

The court is not persuaded by defendants’ argument.

The Frisby Court clarified that the First Amendment per-

mits the government to prohibit focused picketing. Spe-

cifically, the Frisby Court ruled that the Town of Brook-

field could constitutionally prohibit “focused picketing

taking place solely in front of a particular residence.”

Frisby, 487 U.S. at 483 (emphasis added). Plaintiffs’

picketing extended well beyond one residence and they

placed no particular emphasis on any individual dwelling.

Furthermore, the manner in which they conducted their

12 Defendants note that one factor defendant Holman con-

sidered in determining whether the protesters were engaging in

unlawful activity was the time of the day that the demonstration

occurred, (Defs.’ Statement of Facts in Dispute at 2; Aff. of Jon

Holman dated 9/13/94, at 2). Although the time of day may have

been an appropriate fact to consider in deciding whether the plain-

tiffs were violating the residential picketing ordinance, it is neither

the only factor not an overriding factor. Upon review of the all

the circumstances, the court finds that plaintiffs were lawfully

exercising their First Amendment rights and that defendants’

enforcement of the Fargo ordinance was unconstitutionally over-

broad.

34a

demonstration was as accommodating to residential

privacy interests as any picket could be. Construing the

Fargo ordinance to constitutionally prohibit plaintiffs’

conduct would essentially render a citizens’ right to

picket in a Fargo residential neighborhood meaningless.

The defendant police officers arrested plaintiffs despite

the fact that their picketing was silent, orderly and

expansive. Accordingly, this court finds that when defen-

dants arrested plaintiffs for violating Fargo Municipal

Code § 10-0802, they enforced the ordinance in a man-

ner that went beyond the scope of the narrowing con-

struction set forth by this court and compelled by Frisby.

Thus, the ordinance is overbroad as applied to plaintiffs.

Defendants’ enforcement of Fargo’s antipicketing ordi-

nance impermissibly infringed on plaintiffs’ First Amend-

ment rights.

Next, plaintiffs argue that defendants’ arrest of plain-

tiffs was unreasonable under the Fourth Amendment.

Therefore, plaintiffs claim that the defendant police offi-

cers are liable for unlawfully seizing plaintiffs.

In Gainor v. Rogers, the Eighth Circuit Court of

Appeals stated: “It is fundamental that an arrest violates

the Fourth Amendment when there exists no reasonable

suspicion or probable cause that an individual is engaged

in criminal activity. It is also fundamental that a lawful

arrest may not ensue where the arrestee is merely exercis-

ing his First Amendment rights.” Gatnor v. Rogers, 973

F.2d 1379, 1387 (8th Cir. 1992) (citations omitted). The

court has previously found that plaintiffs were exercising

their First Amendment rights when they were arrested.

Thus, the sole question remaining is whether circum-

stances surrounding the arrest would have led a reason-

able police officer to conclude that there was probable

cause to believe that plaintiffs’ conduct was unlawful.

_—

irra ei tana la NO canes mae

35a

“In determining whether probable cause exists to

make a warrantless arrest, a court will consider

whether the totality of facts based on reasonably

trustworthy information would justify a prudent

person in believing the individual arrested had com-

mitted . . . an offense. Probable cause is to be

assessed in terms of the circumstances confronting

a reasonably cautious police officer at the time of

the arrest, and the arresting officer is entitled to

consider the circumstances, including arguably inno-

cent conduct, in light of his training and experience.

‘(T]he probability, and not a prima facie showing,

of criminal activity is the standard of probable

x 99

cause.’ ’’ (citations omitted).

Myers v. Morris, 810 F.2d 1437, 1455 (8th Cir. 1987).

Upon review of the circumstances of this case, the court

finds that a reasonable police officer would have been

aware of the Court’s ruling in Frisby v. Schultz and

would therefore have realized that plaintiffs were legiti-

mately exercising their First Amendment rights on the

evening of October 10, 1991. Thus, the court finds that

the police officers did not have reasonable suspicion or

probable cause to arrest plaintiffs. Accordingly, plaintiffs’

seizure violated their Fourth Amendment rights.

Plaintiffs assert that if the court finds that the Fargo

ordinance was unconstitutional on its face or as applied

and that their arrest was therefore unlawful, they are

entitled to summary judgment on the first and second

causes of action alleged in their complaint. Plaintiffs

would be entitled to summary judgment if defendants

had not claimed that they were entitled to qualified

immunity from liability and damages. However, since

defendants plead this affirmative defense, the court

will defer ruling on plaintiffs’ motion for summary judg-

36a

ment until after it considers defendants’ qualified immun-

ity arguments.

C. DEFENDANTS’ MOTION FOR SUMMARY JUDG-

MENT

1. Qualified Immunity

Defendants argue that they are entitled to qualified

immunity because the information available to the police

officers at the time of plaintiffs’ arrest led them to believe

(and would have led reasonable police officers to believe)

that the picketers were directing their attention and

efforts toward the home of Jane Bovard. Since picketing

a residential dwelling is prohibited by Fargo Municipal

Code § 10-0802, defendants assert that reasonable offi-

cers could have believed that plaintiffs’ arrest was lawful.

In addition, defendants assert that controlling prece-

dent does not clearly establish when a demonstrator may

legally picket in a residential neighborhood. The Court in

Frisby v. Schultz found that a Brookfield ordinance, simi-

lar to the Fargo residential picketing ordinance, was con-

stitutional on its face when narrowly construed to ban

“only focused picketing taking place solely in front of a

particular residence.” Frisby, 487 U.S. at 483, 488. How-

ever, the Court did not provide practical guidance about

the application of the ordinance beyond the limited

scope addressed in the Frisby opinion. Therefore, defend-

ants assert that the scope of the plaintiffs’ First Amend-

ment right to picket in a residential area was not clearly

established under the circumstances presented in this

case.

The purpose of the qualified immunity defense is to

shield government officials who were exercising discre-

37a

tionary authority from civil damages liability, “as long as

their actions could reasonably have been thought consis-

tent with the rights they are alleged to have violated.”

Anderson v. Creighton, 483 U.S. 635, 638 (1987) (cita-

tions omitted); Mitchell v. Forsyth, 472 U.S. 511, 526

(1985). In Latimore v. Widseth, the Eighth Circuit court

of Appeals summarized the requirements of the qualified

immunity defense as follows:

The availability of the defense to an official exercis-

ing discretionary authority in a particular case re-

quires careful consideration of the established law at

the time, the state actor’s objective knowledge of

that law, and the complained-of conduct. “Qualified

immunity protects a government official from suit

if, at the time of the challenged acts, it was not

clearly established that those actions would violate

clearly established law of which a reasonable person

would have known.”

Lattimore v. Widseth, 7 F.3d 709, 712 (8th Cir. 1993)

(citation omitted). The elements of the defense stated in

a three-part inquiry are: (1) Has the plaintiff asserted a

violation of a constitutional right? (2) Was the constitu-

tional right allegedly violated clearly established? (3) Are

there genuine issues of material fact regarding whether a

reasonable officer would have known that his or her

alleged conduct infringed on plaintiff’s constitutional

right? Foulks v. Cole County, MO., 991 F.2d 454, 456

(8th Cir. 1993) (citations omitted).

In deciding whether defendants are entitled to quali-

fied immunity, the first issue to resolve is whether plain-

tiffs have alleged a violation of a constitutional right.

Siegert v. Gilley, 111 S.Ct. 1789, 1793 (1991). In this

case, plaintiffs contend that defendants violated their

First, Fourth and Fourteenth Amendment rights when

38a

the defendant police officers arrested them for picketing

on public sidewalks and streets. Public sidewalks have

long been a place for public assembly and discourse. Frs-

by, 487 U.S. at 480-81. “In these quintessential public

forums the government may not prohibit all communi-

cative activity.” Jd. Furthermore, “a public street does

not lose its status as a traditional public forum simply

because it runs through a residential neighborhood.” Fris-

by, 487 U.S. at 480. Accordingly, the court finds that

plaintiffs have sufficiently alleged a violation of their con-

stitutional rights.

The next issue is whether plaintiffs’ constitutional

right to picket in a residential neighborhood was clearly

established. For purposes of qualified immunity, a right

is clearly established if a reasonable official would under-

stand that his or her conduct violates that particular right

because the contours of the right are sufficiently clear.

Anderson v. Creighton, 483 U.S. 635, 640 (1987). “This

is not to say that an official action is protected by quali-

fied 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 appar-

ent.” Id.

The Court has previously invalidated complete bans on

expressive activity in residential neighborhoods. Frisby,

487 U.S. at 480, 485. In doing so, the court recognized

that public streets and sidewalks, even in residential

neighborhoods, are the archetype of a traditional public

forum and therefore restrictions on the use of this forum

for picketing on an issue of public concern are subject to

careful scrutiny. Jd. at 479-81. In Frisby v. Schultz, the

court construed an ordinance almost identical to the

Fargo antipicketing ordinance to ban only focused pick-

eting taking place solely in front of a particular residence.

39a

Although the judiciary may not have analyzed the Fargo

ordinance for constitutional validity before this case, the

court finds that the Supreme Court’s decision in Frisby

clearly established plaintiffs’ right to picket in a Fargo

residential neighborhood.

Defendants acknowledge that the Frisby Court pro-

vided guidelines for analyzing the facial validity of the

Fargo ordinance, but argue that the Frisby decision did

not define the scope of permissible picketing under the

ordinance and therefore questions about the constitu-

tional application of the ordinance still remain. In sup-

port of their argument, defendants note that the Seventh

Circuit Court of Appeals, upon remand, commented that

the Fnsby Court left many questions unanswered:

We appreciate the Plaintiff’s concern that it is hard

to tell when picketing is “directed at” a particular

home. Will it be enough to go around and around

the block? Could the picketers march in front of

five houses on either side of the Victoria’s? Make a

stop for one minute, or two, or five, in front of the

Victoria’s place before moving on? Surely they can’t

evade the law by standing in front of the Victoria’s

home and occasionally jumping one house on either

side. How much longer must the route be? No

matter how clear the ordinance seems, 100 nice

questions may follow its wake.

Schultz v. Frisby, 877 F.2d 6, 8 (7th Cir. 1989). Defen-

dants also cite to the following passage from the Frisby

decision: “[S]ince our First Amendment analysis is

grounded in protection of the unwilling residential lis-

tener, the constitutionality of applying the ordinance to

such hypothetical [situations] remains open to question.”

(Br. in Support of Defs.’ Mot. for Summ. J. at 9 (quoting

Frisby, 487 U.S. at 488)). In addition, defendants note

40a

that Judge Racek, the Cass County Court judge who dis-

missed the criminal charges against plaintiffs, admitted

that the question of whether the Fargo ordinance was

constitutional as applied to the circumstances in this case

was troublesome. Since the Frisby Court did not provide

any practical guidance about the application of the nar-

rowly construed antipicketing ordinance, defendants

argue that plaintiffs’ constitutional right to picket under

the circumstances of this case was not clearly established.

The court is not persuaded by defendants’ arguments.

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 immun-

ity 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 preexisting law.”

Id, The court finds that the unlawfulness of defendants’

arrest of plaintiffs was apparent in light of Frisby. The

similarity of the Brookfield and Fargo ordinances put

defendants on notice that the Fargo ordinance was over-

broad as written. The Frisby Court avoided constitutional

difficulties presented by the Brookfield ordinance by

construing the antipicketing ban to prohibit only focused

picketing taking place solely in front of a particular resi-

dence. Frisby, 487 U.S. at 483. This narrowing construc-

tion clearly established the standard for analogous

cases.!3 Defendants have not set forth any facts that con-

13The United States District Court in Vittitow, et al., v.

City of Upper Arlington, 830 F.Supp. 1077 (S.D. Ohio, E.D.

1993), rev’d, Nos. 93-4034/4086 (6th Cir. Jan. 12, 1995), also

recognized the precedential effect of Frisby:

[I]n Frisby, unlike the instant case, the plaintiffs chai-

lenged the facial validity of the ordinance. The Court

nevertheless finds the princip'es enunciated in Frisby to

be highly instructive in the instant case. In particular, the

[footnote continued]

ee ee eT

4la

vince this court that it should not narrowly construe the

Fargo ordinance in the same manner that the Court nar-

rowly construed the Brookfield ordinance in Frisby. To

the contrary, it appears that the purpose for adopting the

Fargo and Brookfield antipicketing ordinances ‘and the

state interests asserted by Town of Brookfield and the

City of Fargo are nearly identical. In addition, this court

has found no special circumstances that would lead a rea-

sonable officer to conclude that this case presented an

exception to the principles discussed in Frisby. There-

fore, the court finds that defendants should have known

that Frisby compels a narrow construction of residential

picketing ordinances, such as Fargo Municipal Ordinance

§ 10-0802, to prohibit only picketing focused on and

taking place solely in front of a particular residence.

Furthermore, the court is not convinced that the cir-

cumstances in the case at hand present a close call with

regard to constitutional application of the statute. In

order to save the ordinance from invalidation on constitu-

tional grounds, the Frisby Court construed the Brook-

field antipicketing ban to be a limited one. Frisby, 487

U.S. at 483. In reaching this decision, the Court was

persuaded by counsel for the Town of Brookfield, who

assured the Court that “[g] eneral marching through resi-

dential neighborhoods, or even walking a route in front

of an entire block of houses was not prohibited by the

ordinance.” Jd. The defendant police officers in this case

observed the demonstrators for approximately ten min-

limitations the Frisby Court read into the Brookfield

ordinance serve as a fair guide as to the extent to which

defendants in the instant case may constitutionally en-

force the Upper Arlington ordinance.

Jd. at 1080.

42a

utes before approaching them and therefore knew the

extent of their picketing route and manner of their dem-

onstration. The picketers’ route extended well beyond

one particular residence. The picketers’ conduct was

orderly. The demonstration was limited to public pro-

perty and the court is aware of no claims of excessive

noise, blo~xed access or threatening behavior. If the offi-

cers had been properly trained about Frisby and its impli-

cations, the illegality of plaintiffs’ arrest would have been

obvious. Accordingly, the court finds that plaintiffs’ con-

stitutional right to picket in the manner described by

plaintiffs in their affidavits and depositions was clearly

established.

Allegations of a well-established constitutional right do

not automatically defeat a motion for summary judgment

on qualified immunity grounds, however. The qualified

immunity defense may still be viable even when a plain-

tiff establishes the violation of a clearly established con-

stitutional right, if the defendant can demonstrate the

“objective legal reasonableness” of the policy or conduct

in light of the legal principles that were “clearly estab-

lished” at the time the alleged violation occurred. Latt-

more, 7 F.3d at 712 (citing Anderson v. Creighton, 483

U.S. 635, 639 (1987). “The contours of the right must be

sufficiently clear that a reasonable official would under-

stand that what he is doing violates that right.”” Ander-

son, 483 U.S. at 640. Thus, the court must not only con-

sider whether the right allegedly violated was clearly

established, but must also consider whether the right was

clearly established in these particular circumstances. /d.

at 640-42. Although it may be clear that plaintiffs have a

general right to picket on public sidewalks and streets, it

may not be clear that defendants violated plaintiffs’ con-

43a

stitutional rights when they arrested plaintiffs for picket-

ing in a residential neighborhood on October 10, 1991.14

Furthermore, in a case in which the defense of quali-

fied immunity is raised in response to an allegation of

illegal arrest under the Fourth Amendment, the “focal

issue is the objective reasonableness of the officer making

the arrest, even though probable cause to arrest is lack-

ing.” Gainor v. Rogers, 973 F.2d 1379, 1382 (8th Cir.

1992). The relevant question is whether a reasonable offi-

cer could have believed that plaintiffs’ arrest was lawful,

in light of clearly established law and the information the

defendant police officers possessed. Anderson v. Creigh-

ton, 483 U.S. 635, 641 (1987); Gainor, 973 F.2d at

1384. The latter phase of this test allows room for good

faith mistake since the officer’s “conduct must be mea-

sured in terms of the belief of a reasonable officer based

14 The Court in Myers v. Morris noted:

In Mitchell v. Forsyth, for example, the fourth amend-

ment right to be free from unreasonable searches was cer-

tainly clearly established when the attorney general

ordered wiretaps. What was not clearly established was

whether the specific conduct in the context indicated

(warrantless wiretapping for domestic national security

purposes) was clearly constitutionally proscribed. See

also Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3022,

82 L.Ed.2d 139 (1984) (Brennan, J., concurring in part

and dissenting in part):

In order to determine whether a defendant has vio-

lated a plaintiff’s clearly established rights, it would

seem necessary to make two inquiries * * *: (1)

which particular act or omission of the defendant

violated the plaintiff’s federal rights, and (2) wheth-

er governing case or statutory law would have given

a reasonable official cause to know, at the time of

the relevant events, that those acts or omissions vio-

lated the plaintiff’s rights.

Myers v. Morris, 810 F.2d 1437, 1459 n.16 (8th Cir. 1987).

44a

upon the facts then available to the officer.” Gainor, 973

F.2d at 1384. Naturally, an officer cannot claim quali-

fied immunity if the officer based his or her decision to

arrest on mere suspicion that unlawful conduct had

occurred. But, “if the officer asserted conduct which

would give rise to probable cause, this would, if undis-

puted, provide a defense of qualified immunity.”’ Jd.

In this case, the facts the court finds material to its

decision are undisputed. Plaintiffs and ten to fifteen

other individuals convened in Bovard’s neighborhood

between the hours of 9:30 and 10:30 p.m. and began

walking north and south on a public sidewalk in front of

Bovard’s residence and at least five other homes. (Pls.’

Statement of Material Facts Not in Dispute at 2; Defs.

Statement of Facts in Dispute at 1). The demonstrators

walked single file, moved continuously, carried no signs,

remained silent, and limited their activities to public

streets and sidewalks on Edgewood Drive. (Jd. ). Plaintiffs

did not stop in front of Bovard’s residence or any other

home in the neighborhood and they did not block or

impede access to or from private property. (/d.). Defen-

dant Holman, the officer who made the decision to arrest

plaintiffs, observed their activity for approximately ten

minutes, long enough to recognize that plaintiffs’ con-

duct was permissible in light of clearly established law.

Therefore, the court concludes that a reasonable officer

could not have believed the arrest was lawful. As noted

above, the law clearly proscribed the arrest of plaintiffs

for walking the picketing route alleged in their complaint.

A reasonable police officer under the circumstances in

this case could not have found that there was probable

15 (pjs.’ Statement of Material Facts Not in Dispute at 3).

Defendants did not dispute the ten-minute observation estimate.

extents

45a

cause to arrest plaintiffs for violating Fargo’s antipicket-

ing ordinance. Accordingly, defendants are not entitled

to qualified immunity. Defendants’ motion for summary

judgment on plaintiffs’ first and second causes of action

is denied. Plaintiffs’ motion for partial summary judg-

ment on their first and second causes of action is granted.

2. Liability of the City of Fargo

‘In their complaint, plaintiffs allege that the City of

Fargo failed to train and advise its police officers and that

this failure constituted deliberate indifference to plain-

tiffs’ clearly established constitutional rights. In addition,

plaintiffs claim that the City’s failure to train and advise

the officers was the direct and proximate cause of the

deprivation of rights suffered by plaintiffs. Further, plain-

tiffs contend that the defendant police officers’ conduct

was authorized, sanctioned and ratified by city officials

functioning at a policy-making level for the City of Fargo

and that the police officers’ actions were performed pur-

suant to official policies and customs of the City of

Fargo.'® Therefore, plaintiffs allege that the city is liable

for plaintiffs’ damages.

161, response to plaintiffs’ first request for admissions,

defendants admitted that the defendant police officers acted pur-

suant to the City’s official policies, customs, practices, and proce-

dures when they arrested plaintiffs. (Defs.’ Response to Pls.’ First

Set of Request for Admissions, at 4). Defendants also admitted

that the police officers acted pursuant to their training and instruc-

tion as City of Fargo police officers when they arrested plaintiffs.

(Jd. at 5). Plaintiffs argue that these admissions constitute ratifi-

cation of the defendant police officers’ unconstitutional conduct,

automatically giving rise to municipal liability. This court is not

persuaded by plaintiffs’ argument. The court views the admissions

signed by Raftevold as an acknowledgement that the defendant

police officers acted pursuant to existing policies and training,

[ footnote continued |

46a

In response to these allegations, defendants filed a

motion for summary judgment arguing that the claims

against the City of Fargo should be dismissed because the

City’s alleged failure to properly train and supervise the

police officers did not amount to deliberate indifference

to the rights of the demonstrators.

Section 1983 to title 42 of the United States Code pro-

vides a remedy against every person who, under color of

state law, deprives another of constitutionally protected

rights. 42 U.S.C.A. 3 1983 (1994). The United States

Supreme Court in Monell v. New York City Dept. of

Social Services, 436 U.S. 658, 690 (1978), found that ~

Congress intended § 1983 to apply to municipalities and

other local governmental entities. However, the Court in

Monell and its progeny also noted that “fa municipality

can be found liable under § 1983 only where the muni-

cipality itself causes the constitutional violation at issue.

Respondeat superior or vicarious liability will not attach

under § 1983. ‘It is only when the “execution of the

government’s policy or custom . . . inflicts the injury”

that the municipality may be held liable under § 1983.’ ”

Canton v. Harris, 489 U.S. 378, 385 (1989) (citations

omitted).

The evidence before the court indicates that the City

of Fargo implemented no specific policies, procedures or

none of which specifically addressed the enforcement of the anti-

picketing ordinance or the implications of Frisby. The admissions

are not the equivalent of an affirmative decision, cast in the

form of a policy statement, to ignore training deficiencies or com-

pletely omit training about the proper enforcement of the resi-

dential antipicketing ordinance. See City of St. Louts v. Praprot-

nik, 485 U.S. 112, 127-30 (1988). Consequently, the court con-

cludes that municipal liability premised on a ratification theory

does not flow from the City’s admissions.

47a

guidelines for the enforcement of Fargo’s antipicketing

ordinance. (Depo. of Ronald Raftevold dated Apr. 18 &

20, 1994, at 10).

And where there is no official statement respecting

specific police conduct, it will be difficult if not

impossible to imply an official municipal policy

directly authorizing conduct at odds with federal

and state constitutions and laws.

Typically, therefore, claims of municipal liability

for specific constitutional violations by police have

had to seek municipal fault in other sources than

direct authorizations by policymakers and the neces-

Sary causation between fault and violation in more

attenuated connections than direct commands.

Two basic theories have emerged for imposing

municipal liability in the more typical situation

where fault and causation cannot be laid to a muni-

cipal policy “itself unconstitutional.” The principal

theory locates fault in deficient programs of police

training and supervision which are claimed to have

resulted in constitutional violations by untrained or

mis-trained police officers. A second theory, some-

times imprecisely subsumed within the first, locates

fault in irresponsible failure by municipal policy-

makers to put a stop to or correct a widespread pat-

tern of unconstitutional conduct by police officers

of which the specific violation is simply an example.

Spell v. McDaniel, 824 F.2d 1380, 1388-89 (4th Cir.

1987) (citations omitted). In this case, plaintiffs argue

the principal theory. Specifically, plaintiffs allege that the

City of Fargo failed to adequately train and advise its

police officers.

In Canton v. Harris, the United States Supreme Court

held that the inadequacy of police training may serve as

48a

une basis for § 1982 habilivy, wot “only olteie dhe fethreerie

to train amounts to deliberate indifference to the rights

of persons with whom the police come into contact.”

Canton, 489 U.S. at 388 (footnote omitted). In order to

prove their claim under a failure to train or instruct

theory of municipal liability, plaintiffs must establish

the following three elements:

(1) The city’s training program was inadequate. Can-

ton, 489 U.S. at 390.

(2) The city’s “‘ ‘failure to train its employees in a rele-

vant respect evidences a “deliberate indifference” to the

rights of the [plaintiffs].’”’ Thelma D. by Delores A. v.

Board of Educ., 934 F.2d 929, 934 (8th Cir. 1991) (cita-

tion omitted). Specifically, plaintiffs must prove that the

City of Fargo had notice that its training program was

inadequate and likely to result in a violation of constitu-

tional rights. Jd. The plaintiffs may establish that the City

or its policymakers had notice of a deficiency in its train-

ing program or procedures in one of two ways:

A. “[N]otice may be implied where failure to

train officers or employees is so likely to result in a

violation of constitutional rights that the need for

training is patently obvious.”’ Jd.

B. In situations where the need for training may

not be obvious from the outset, ‘‘a pattern of con-

stitutional violations could put the municipality on

notice that its employees’ responses to a regularly

recurring situation are insufficient to protect the

constitutional rights of its citizens. To establish

deliberate indifference on such a claim, [plaintiffs]

must show that the [City] had either actual or con-

structive notice of the inadequacy of its training

program and failed to take remedial steps.” Jd. at

935.

49a

(2\, The Gits;’s failhur ta adennatels, teain. ite, qalicn

officers was a moving force behind the constitutional

violation alleged by plaintiffs. Canton, 489 U.S. at 389;

Monell, 436 U.S. at 694. In other words, “the identified

deficiency in the city’s training programs must be closely

related to the ultimate injury.” Canton, 489 U.S. at 391.

The first issue this court must consider is whether the

City of Fargo’s training program was inadequate to train

its police officers to properly enforce the residential anti-

picketing ordinance. Chief of Police Ronald Raftevold,

the top policymaking official responsible for the training

and instruction of Fargo police officers,!’ testified that,

to the best of his knowledge, there were no policies, pro-

cedures or guidelines for the enforcement of Fargo Muni-

cipal Code § 10-0802. (Depo. of Ronald Raftevold dated

4/18/94 and 4/20/94, at 10). The text of the ordinance

was the only guidance available to police officers charged

with enforcing the ordinance. (/d. at 10-11). In addition,

Raftevold acknowledged that he had not read Frisby v.

Schultz, 487 U.S. 474 (1988), and was not familiar with

the contents or implications of the case prior to October

10, 1991. (Id. at 14-24, 30-43).

Furthermore, defendant Holman, the shift commander

on the evening of October 10, 1991 and the officer who

made the decision to arrest plaintiffs,'* testified that he

could recall no written policy for the enforcement of the

Fargo residential antipicketing ordinance. (Depo. cf Lt.

Jon C. Holman dated 4/18/94, at 7, 20, 56-57, 63-64).

He also testified that he could recall no specific verbal

17 (Depo. of Ronald Raftevold dated 4/18/94 and 4/20/94,

at 9-10).

18 (Depo. of Lt. Jon C. Holman dated 4/18/94 and 4/20/94,

at 11, 13, 19-20, 81-82).

50a

instructions given to Fargo police officers regarding the

enforcement of the ordinance. (Id. at 7, 20, 56-57, 64).

In addition, Holman testified that he had not heard about

Frisby until after October 10, 1991 and had not received

any training or instruction of any kind through the City

of Fargo addressing the ruling in Frisby prior to plaint-

tiffs’ arrest. (Id. at 8-9).

Moreover, the court notes that testimony from Hol-

man and Raftevold given in response to hypothetical

questions during their depositions indicates that neither

man understood the implications of Fnsby before plain-

tiffs were arrested on October 10, 1991. (Jd. at 45-57,

87-115; Depo. of Chief Ronald Raftevold dated 4/20/94,

at 36-43).

Upon review of the facts listed above and other evi-

dence submitted in support of pending motions, this

court finds that no reasonable jury could conclude that

the training and instruction provided by the City of

Fargo was adequate to enable Fargo police officers to

respond properly to the recurring residential picketing

situations with which they had to deal. !9

Next, the court must decide whether the City’s failure

to train its police officers evidences ‘deliberate indiffer-

ence” to the rights of the plaintiffs. Canton v. Harris, 489

U.S. 378, 388 (1989); Thelma D. by Delores A. v. Board

19in their Statement of Facts in Dispute, defendants claim:

“While there was not formal training and instruction of Fargo’s

police officers as to the Fargo’s residential picketing ordinance,

there was informal training and instruction through police staff

meetings and the like.” (Defs.’ Statement of Facts in Dispute

at 2). Defendants proffered no evidence in support of this asser-

tion. Pursuant to Rule 56 of the Federal Rules of Civil Procedure,

defendants’ statement, standing alone, is insufficient to withstand

plaintiffs’ motion for summary judgment. Fed. R. Civ. Pro. 56(e).

5la

of Educ., 934 F.2d 929, 934 (8th Cir. 1991) (citation

omitted). In Canton v. Harris, the United States noted

that plaintiffs can demonstrate deliberate indifference by

establishing that “in light of the duties assigned to spec-

cific officers or employees the need for more or different

training is so obvious, and the inadequacy so likely to

result in the violation of constitutional rights, that the

policymakers of the city can reasonably be said to have

been deliberately indifferent to the need.” Canton, 489

U.S. at 390.

Fargo Municipal Code § 10-0802, as written, did not

clearly notify the Fargo police officers about the narrow-

ing construction compelled by Frisby.° Yet, the text of

the ordinance was the only guidance available to police

officers who were charged with enforcing the ordinance.

Therefore, it was incumbent upon the city to instruct its

police officers about the implications of this Supreme

Court decision. Failure to instruct police officers that

demonstrators could constitutionally picket in a residen-

tial neighborhood so long as their demonstration was not

focused on and taking place solely in front of a single

residence was almost certain to result in deprivation of

constitutional rights anytime police officers were tasked

20 Defendants claim that “there had been no legal challenge

to Fargo’s home picketing ordinance. There were no legal deci-

sions interpreting the scope of the ordinance. No Court had held

the ordinance unlawful and in fact, the United States Supreme

Court in Frisby had held a similar ordinance to be constitutional.”

(Defs.’ Br. in Support of Defs.’ Mot. for Summ. J. at 15). Accord-

ingly, defendants contend that the City of Fargo is not liable under

§ 1983. The court is not persuaded by defendants’ arguments. The

City of Fargo may not ignore a binding judicial opinion such as

Frisby simply because the case did not specifically address Fargo

Municipal Ordinance § 10-0802. The facts in Frisby were analo-

gous and therefore its principles are binding.

52a

with enforcement of this ordinance. Accordingly, the

court finds that the City’s failure to train its police offi-

cers about the proper enforcement of the antipicketing

ordinance was so likely to result in a violation of consti-

tutional rights that the need for training was patently

obvious. No reasonable jury could conclude otherwise.

Notice of a deficiency in the City’s training program must

therefore be implied.

Finally, plaintiffs must demonstrate that the City of

Fargo’s failure to adequately train its police officers was

a moving force behind the violation of plaintiffs’ consti-

tutional rights. Since there is no evidence that the police

officers were motivated by a purpose other than bring-

ing offenders to justice, the court finds that if the defen-

dant police officers had known about the narrow con-

struction compelled by Frisby, they would not have

arrested plaintiffs. Thus, the deficiency in Fargo’s train-

ing program was closely related to plaintiffs’ injury. No

reasonable jury could conclude that the City’s failure to

train the defendant police officers was not a cause of

plaintiffs’ constitutional injury. Accordingly, the City of

Fargo is liable for plaintiffs’ constitutional claims. Plain-

tiffs’ motion- for summary judgment is granted with

respect to their municipal liability claims.

3. State Law Claims?!

In their complaint, plaintiffs allege that defendants are

liable for malicious prosecution and false arrest/false

imprisonment under the laws of the State of North Da-

kota. Defendants filed a motion for summary judgment

2I pursuant to 28 U.S.C. § 1367(a) and the Eighth Circuit

Court of Appeals decision in McLaurin v. Prater, 30 F.3d 982, 985

(8th Cir. 1994), this court must accept supplemental jurisdiction

over the state law claims in this action unless:

[ footnote continued]

53a

arguing that plaintiffs have failed to make a showing suf-

ficient to establish the existence of two elements neces-

sary to maintain an action for malicious prosecution:

absence of probable cause for the proceeding and malice.

In order to maintain an action for malicious prosecu-

tion under North Dakota law, one must establish the fol-

lowing elements:

1. A criminal proceeding instituted or continued by

the defendant against the plaintiff.

2. Termination of the proceeding in favor of the

accused. :

3. Absence of probable cause for the proceeding.

4. “Malice,” or a primary purpose other that of bring-

ing an offender to justice.

Richmond uv, Haney, 480 N.W.2d 751, 755 (N.D. 1992)

(citations omitted). Upon review of the evidence, the

court finds that plaintiffs have failed to make a showing

sufficient to establish malicious intent. Plaintiffs neither

responded to defendants motion for summary judgment

on their state law claims nor submitted any evidence indi-

cating that the defendant police officers were motivated

by a purpose other than bringing offenders to justice.

(1) the claim raises a novel or complex issue of State

law,

(2) the claim substantially predominates over the claim

or claims over which the district court has original

jurisdiction,

(3) the district court has dismissed all claims over

which it has original jurisdiction, or

(4) in exceptional circumstances, there are other com.

pelling reasons for declining jurisdiction.

28 U.S.C. § 1367 (1994). Since this court concludes that none of

the exceptions listed above apply to the circumstances of this case,

it must accept jurisdiction over the state law claims alleged by

plaintiffs.

54a

Mere allegations of malicious conduct are not enough to

withstand defendants’ motion for summary judgment.

Fed. R. Civ. Pro. 56(e). Accordingly, the court finds that

defendants are entitled to summary judgment on this

state law cause of action.

Plaintiffs also allege that defendants are liable for false

arrest/false imprisonment. In order to prove their claim,

plaintiffs must demonstrate that they were subject to

total restraint against their will by means of physical

barriers or by threats of force which intimidated them

into compliance with orders. W. Page Keeton et al., Pros-

ser and Keeton on Torts §11, at 47-53 (Hornbook Series,

Lawyer’s Edition, 5th ed. 1984). However, plaintiffs are

not entitled to recover if the arrest is supported by

proper legal authority. Jd. Probable cause may also serve

as a defense if it validates the arrest itself or if it justi-

fies defense of person or property. Jd.

Defendants do not contend that plaintiffs have failed

to establish the elements of false arrest/false imprison-

ment. Instead, defendants assert that pursuant to section

32-12.1-03(3) of the North Dakota Century Code, they

are immune from liability for plaintiffs’ state law claims

because the defendant police officers’ decision to arrest

plaintiffs for violating Fargo’s antipicketing ordinance

was discretionary.

Section 32-12.1-03(3) (c) sets forth the discretionary

function exception to liability of a political subdivision.”*

22 Section 32-12.1-03(3) provides, in pertinent part:

3. A political subdivision is not liable for any claim based

upon an act or omission of an employee of a political

subdivision, exercising due care, in the execution of a

statute or regulation, whether or not such statute or

regulation be valid, or based upon the exercise or per-

formance, exercising due care, or the failure to exercise

[footnote continued |

55a

The North Dakota Supreme Court has interpreted this

subsection to provide political subdivisions and their

employees immunity from liability for allegations of

negligence in the exercise of a discretionary function.

Sande v. City of Grand Forks, 269 N.W.2d 93, 98 (N.D.

1978); McLain v. Midway Township, 326 N.W.2d 196,

199 (N.D. 1982). However, political subdivision employ-

ces are not entitled to immunity from liability resulting

from the exercise of a discretionary function if their

acts Or omissions constitute reckless or grossly negligent

conduct, or willful or wanton misconduct. N.D. Cent.

Code § 32-12.1-04 (3) (Supp. 1993).

Plaintiffs have not proffered any evidence of mali-

cious intent, reckless or grossly negligent conduct, or

willful or wanton conduct,” and the court finds no evi-

dence of such conduct in the record. Therefore, defen-

dants are immune from liability for plaintiffs’ state law

or perform a discretionary function or duty on the part

of a political subdivision or its employees, whether or

not the discretion involved be abused. Specifically, a

political subdivision or an employee thereof is not

liable for any claim which results from:

c. The decision to perform or the refusal to exercise or

perform a discretionary function or duty, whether or

not such discretion be abused and whether or not the

statute, charter, ordinance, order, resolution, regula-

tion, or resolve under which the discretionary function

or duty is performed is valid or invalid.

N.D. Cent. Code § 32-12.1-03 (Supp. 1993).

23 Plaintiffs did not file a response to defendants’ request to

dismiss their state law claims. Pursuant to Rule 56 of the Federal

Rules of Civil Procedure, ‘‘an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the

adverse party’s response, by affidavits or as otherwise provided in

this rule, must set forth specific facts showing that there is a

genuine issue for trial.” Fed. R. Civ. Pro. 56(e).

56a

claims provided that defendants can demonstrate that

Holman’s decision to arrest plaintiffs was a discretionary

function.”4

Upon review of the circumstances of this case and the

factors set forth in Loran v. Isler, 373 N.W.2d 870, 873

(N.D. 1985) (quoting Comment f to § 895D, Restate-

ment (Second) of Torts), the court finds that Holman’s

conclusion that there was probable cause to arrest plain-

tiffs and his consequent decision to arrest plaintiffs was

discretionary. There is a substantial amount of indepen-

dent judgment required to make a decision to arrest or

to conclude whether probable cause exists. See Rich-

mond v. Haney, 480 N.W.2d 751, 759 (N.D. 1992).

Accordingly, defendants are immune from liability for

plaintiffs’ state law claims of malicious prosecution and

false arrest/false imprisonment under section 32-12.1-03

of the North Dakota Century Code. Defendants’ motion

for summary judgment on plaintiffs’ third and fourth

causes of action is therefore granted.

4. Punitive Damages

Plaintiffs’ prayer for relief includes a demand for puni-

tive damages against defendants Holman, Todd, and

Schalesky.2° In response to this demand, defendants

241 egislative history supports this interpretation of section

32-12.1-03. During the discussion of house bill 1071, the bill

which lead to the enactment of chapter 32-12.1, Mr. Russ Myhre

of the Legislative Council stated that “generally, state or political

subdivision officers and employees who exercise discretionary

functions are immune from liability for their unintentional fault.”

Senate Judiciary Committee Discussion of House Bill 1071 at 2

(March 7, 1977).

25 Although a political subdivision may not be held liable for

punitive damages, employees of a political subdivision may be held

liable for punitive or exemplary damages. N.D. Cent. Code

§ § 32-12.1-03(2) & 32-12.1-04(3) (Supp. 1993).

57a

argue: “There is absolutely nothing in the Complaint nor

in the facts of this case which justify an award of puni-

tive damages against the arresting officers. The request

for punitive damages should be stricken from this pro-

ceeding.” (Br. in Support of Defs.’ Mot. for Summ. J. at

19). Plaintiffs did not respond to this argument.

“Punitive damages may be awarded in a section 1983

action when ‘the defendant’s conduct is shown to be

motivated by evil motive or intent, or when it involves

reckless or callous indifference to the federally protected

rights of others.’ ” Duncan v. Wells, 23 F.3d 1322, 1324

(8th Cir. 1994) (citations omitted). “[W]hen the defen-

dant has been guilty by clear and convincing evidence of

oppression, fraud or malice, actual or presumed, the

court or jury, in addition to actual damages may give

damages for the sake of example and by way of punish-

ing the defendant.” N.D. Cent. Code § 32-03.2-11 (Supp.

1993).

Upon review of the documents submitted in support of

the cross motions for summary judgment, the court finds

that plaintiffs have failed to make a showing sufficient to

withstand defendants’ motion for summary judgment on

this issue. See Fed. R. Civ. Pro. 56. The court found no

evidence indicating that defendants’ acts were motivated

by evil motive or intent or that their acts constitute

oppression, fraud, malice or callous or reckless indiffer-

ence to the rights of others. The evidence before this

court is therefore insufficient to support a punitive dam-

ages award. Defendants’ motion for summary judgment

with respect to plaintiffs’ demand for punitive damages is

granted.

58a

IT IS ORDERED THAT:

1

. Defendants’ motion for summary judgment (doc.

#19) is granted with respect to plaintiffs’ state law

claims and plaintiffs’ demand for punitive damages.

Plaintiffs’ third and fourth causes of action are

therefore dismissed with prejudice. Defendants’

motion for summary judgment (doc. #13) is denied

with respect to plaintiffs’ federal constitutional

claims against all defendants.

. Plaintiffs’ motion for partial summary judgment

(doc. #17) is granted.

. Plaintiffs’ request for oral argument on plaintiffs’

motion for partial summary judgment (doc. #19)

is denied.

Dated: February 17, 1995

/s/ Karen K. Klein

Karen K. Klein

United States Magistrate Judge

59a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-1515NDF

Chris Veneklase, et al.,

Appellees,

VS.

City of Fargo, et al.,

Appellants.

Order Denying Petition for Rehearing

and Suggestion for Rehearing En Banc

The suggestion for rehearing en banc is denied. Chief

Judge Richard S. Arnold and Judge Morris Sheppard

Arnold would grant the suggestion for rehearing en banc.

The petition for rehearing by the panel is also denied.

| April 24, 1996

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

60a

APPENDIX D

AFFIDAVIT OF

CHRISTOPHER MARTIN VENEKLASE

STATE OF OHIO )

) ss

COUNTY OF HAMILTON)

Now comes Affiant, Christopher Martin Veneklase,

and being first duly sworn and cautioned states the fol-

lowing based upon his personal knowledge and belief:

1. I am a Plaintiff in a case now pending in the

United States District Court for the District of North

Dakota which is captioned Chris Veneklase, et al. v. City

of Fargo, et al., Case No. A3-93-156. I am providing this

Affidavit in support of a Motion for Summary Judgment

which is being filed on my behalf. All of the following

statements relate to my arrest in the City of Fargo

(“Fargo”) on October 10, 1991, and the events which

immediately proceeded and followed it.

2. On October 10, 1991, I had attended an evening

of praise and worship at the Community Praise Center

in Moorhead, Minnesota. In the course of that event, I

listened to a Pro-Life speaker and realized that Pro-Lifers

should pray against the evils of abortion publicly in the

streets, in addition to our private worship. Consequently,

I invited others at the Community Praise Center to join

me in silent prayer along the residential block of Edge-

wood Avenue in Fargo. I knew at the time that abortion

provider Jane Bovard (“‘Bovard”) was a resident of that

street, but I did not know which house was her residence

until I arrived there.

6la

3. In response to my suggestion of public prayer in

Bovard’s neighborhood, someone asked me if we would

be arrested. I responded that we should not be arrested

because we would not be breaking any laws. I had previ-

ously read Fargo’s Residential Picketing Ordinance (here-

inafter “the Ordinance”’) in effect at the time. I also had

a basic understanding of a residential picketing case

decided by the U.S. Supreme Court called Frisby v.

Schultz, which I understood to permit peaceful picketing

in residential neighborhoods so long as no individual resi-

dence was targeted. My goal, and my specific suggestion

to the others, was to go as a prayer presence, without

targeting Bovard’s or anyone else’s residence, to silently

wage “spiritual warfare” against the evils of abortion. We

were not going to picket or carry any signs or shout any

prayers or slogans of any kind.

4. Approximately 18 individuals, both adults and

juveniles, joined me in prayer along the north side of

Edgewood Avenue at 9:30 or 10:00 p.m. We walked in

single file along the public sidewalk, covering six to eight

residential lots. Approximately 15 minutes after our

arrival, I was startled by a car which honked its horn and

nearly struck me as it pulled into the driveway at Bo-

vard’s residence. Bovard was the driver of the car, and in

spite of her aggressive and threatening conduct, no one in

our prayer group said a word to her. Rather, we all con-

tinued walking in silent prayer up and down the public

sidewalks on Edgewood Avenue.

5. Approximately ten minutes later, two Fargo

police cars arrived and observed us for five to ten min-

utes. Four other police cars arrived shortly thereafter,

including at least one canine unit and a police van. Fin-

ally, a police officer later identified as Lt. Jon Holman

approached us and blocked our path on the public side-

62a

walk as we were heading southwest near Bovard’s prop-

erty. Lt. Holman told us that he had observed us walking

back and forth along the block and that we were in viola-

tion of the Ordinance. He indicated that we would be

arrested if we did not disperse.

6. At that point, I entered into a conversation with

Lt. Holman. I indicated that I was familiar with the Ordi-

nance, that I had read it, and that we were not in viola-

tion of the Ordinance because we were not even picket-

ing. I emphasized that we were only praying silently and

that we had a constitutional right to do so. Lt. Holman

said that he knew why we were there, that we were target

picketing, that he was going to broadly interpret the

Ordinance to conclude that we were in violation of it,

and that we would be arrested if we did not disperse. I

discussed this issue with Lt. Ho!man for a good 15 min-

utes. Lt. Holman had been joined at one point by Officer

David Todd and a female officer.

7. During the course of our discussion, Lt. Holman

informed me that the Fargo Police had received com-

plaints from residents in the area who claimed to be both-

ered by our presence. Lt. Holman said that our presence

made the neighbors anxious or nervous. I asked Lt. Hol-

man if that would entitle me to have anyone arrested

who walked repeatedly in front of my home and made

me nervous, and he answered “but that would be a differ-

ent situation’’. I asked why it was different, but he would

not respond, saying only that if we did not leave, he

would arrest us and let the courts decide the issue. I told

Officer Todd and the female officer that I wanted them

as witnesses in court. The officers indicated that they

would take note of those facts.

8. As an alternative theory to arrest us, Lt. Holman

then told me that he was giving us a direct order to leave,

A

63a

and that if we did not we would be arrested for disobey -

ing a police officer. I felt this was an improper threat of

force, but 1 realized at that point that Lt. Holman’s

threat was real and that our arrest was imminent. There-

fore, I turned to the others and explained that we would

be arrested if we stayed and prayed, even though we were

doing nothing wrong. I also explained to the others that

I was not going to stop praying just because someone did

not want me to pray, and that anyone else was welcome

to stay with me or they could leave the area and go

home. Approximately three adults and three juveniles

stayed with me. I then explicitly made the point to Offi-

cer Todd and the female officer who had joined Lt.

Holman that no one was carrying a sign, no one had

been praying in a loud voice, and everyone had simply

been walking up and down the public sidewalks in front

of several houses.

9. I then told Lt. Holman that I intended to continue

walking and praying. I did not believe he could order me

to leave unless I did something wrong, which I had not.

Lt. Holman stepped aside, but after I had walked past

him about 10 feet I was arrested, handcuffed, photo-

graphed, and taken to the Cass County Jail. 1 was incar-

cerated for the entire night, and subsequently prose-

cuted by the City of Fargo under Cass County Case No.

CR-91-3462 for an alleged violation of the Ordinance. All

charges were dismissed on constitutional grounds by Cass

County Judge Frank L. Racek on February 18, 1992,

which dismissal constituted the final disposition of those

charges.

10. Neither I nor anyone else in our group, to my

knowledge, intended to target Bovard’s residence that

night, nor did anyone’s conduct give any emphasis to the

Bovard residence or to any other residence. The only

64a

incident which drew any attention to Bovard’s residence

was her own reckless driving as she arrived home, which

endangered me. We did not wish to cause a disturbance or

even to attract attention, but wanted only to pray against

the evils of abortion in the neighborhood of a woman

who was intimately tied to the abortion industry in

Fargo.

11. At all times during this incident, Lt. Holman,

Officer Todd and the other arresting police officers

showed no indication whatsoever that they were inter-

ested in protecting our rights. Rather, they acted in a way

to make clear that their purpose was to intimidate us into

leaving the neighborhood, or to arrest us. Prior to arrest-

ing us, Lt. Holman, Officer Todd, ard the other arresting

officers offered us no options and no alternatives on how

we could remain “legally” in the neighborhood to pray.

The entire episode shocked me into realizing what life

must have been like in the Soviet Union under the stran-

glehold of atheistic communism.

Further Affiant Sayeth Naught.

/s/ Christopher Martin Veneklase

Sworn to by and subscribed before me on this 4th day

of September, 1994.

/s/ Thomas W. Condit

Notary Public

65a

APPENDIX E

RELEVANT CONSTITUTIONAL PROVISIONS

AND STATUTES

U.S. Const. Amendment I

, Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

42 U.S.C. § 1983

Civil Action for Deprivation of Rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper pro-

ceeding for redress. For the purposes of this section, any

Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the Dis-

trict of Columbia.

(R.S. §1979; Dec. 29, 1979, P.L. 96-170, §1, 93 Stat.

1284)