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Phelps v. Red Oak Police Chief Drue Powers

United States District Court, S.D. Iowa, Central Division

December 3, 2014

MARGIE J. PHELPS, et al., Petitioners,
v.
RED OAK POLICE CHIEF DRUE POWERS, et al., Respondents, STATE OF IOWA, Intervenor

Page 944

For Margie J. Phelps, Elizabeth M. Phelps, Timothy B. Phelps, on behalf of themselves and " Individual Picketers from the Westboro Baptist Church", Plaintiffs: Rita N. Bettis, Randall C Wilson, ACLU OF IOWA FOUNDATION, Des Moines, IA.

For Drue Powers, Red Oak Police Chief; in personal capacity, in capacity as official, and as class representative for police chiefs within the state of Iowa, Joe Sampson, Montgomery County Sheriff; in personal capacity, in capacity as official, and as class representative of sheriffs' departments with the state of Iowa, Defendants: Kristopher K Madsen, Robert M Livingston, STUART TINLEY LAW FIRM LLP, COUNCIL BLUFFS, IA.

For State of Iowa, Intervenor: Jeffrey S. Thompson, LEAD ATTORNEY, Meghan L. Gavin, ATTORNEY GENERAL OF IOWA, HOOVER STATE OFFICE BLDG, DES MOINES, IA.

Page 945

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

ROBERT W. PRATT, UNITED STATES DISTRICT JUDGE.

Before the Court is a Motion for Summary Judgment, filed May 14, 2014, by Petitioners Margie J. Phelps (" Phelps" ), Elizabeth M. Phelps, and Timothy B. Phelps (collectively " Petitioners" ). See Clerk's No. 84. On May 14, 2014, Intervenor, the State of Iowa (the " State" ), also filed a Motion for Summary Judgment in which Respondents Red Oak Police Chief Drue Powers (" Chief Powers" ) and Montgomery County Sheriff Joe Sampson (" Sheriff Sampson" ) join. See Clerk's Nos. 80, 81. On June 9, 2014, the State filed a resistance to Petitioners' Motion for Summary Judgment. Clerk's No. 91. On June 11, 2014, Petitioners filed a resistance to the State's Motion for Summary Judgment. See Clerk's No. 94. The Court held a hearing on the motions on November 17, 2014. Clerk's No. 108. The matters are fully submitted.

I. FACTS

The facts of this case are contained largely in the affidavit of Margie Phelps, filed by Petitioners in support of their Motion for Summary Judgment. See Clerk's No. 84-2. At the November 17 hearing, the State acknowledged that it did not dispute the facts presented by Phelps's affidavit. Hr'g Tr. at 12.[1] Petitioners are all members of the Westboro Baptist Church. Clerk's No. 84-1 (Pets.' Statement of Material Facts) ¶ 1. Petitioners regularly engage in picketing and public demonstrations across the country, including in Iowa. Id. ¶ 2. During these demonstrations, Petitioners often mishandle the American flag by dragging it on the ground and wearing it on their bodies, among other actions. Id. ¶ 4.

Petitioners claim that law enforcement officials in Red Oak, Iowa threatened to enforce Iowa's flag desecration and misuse statutes against them, causing Petitioners to limit their desired expressive use of the flag. Id. ¶ 6; see also Iowa Code § § 718A.1A, 723.4(6). Specifically, Petitioners claim that on July 24, 2010, Elizabeth Phelps was involved in a picketing event at the funeral of a soldier in Red Oak, Iowa. Clerk's No. 84-2 (Aff. of Margie Phelps) ¶ ¶ 10, 12. According to Petitioners, Chief Powers told Elizabeth Phelps that the flag desecration statutes would be enforced against the picketers. Id. ¶ 13. As a result of Chief Powers's

Page 946

statement, members of the church refrained from putting the flag on the ground or hanging it from their bodies. Id. At another Red Oak protest event attended by Phelps, Timothy Phelps, and other church members, Petitioners claim that Sheriff Sampson and other law enforcement officials told Phelps that she could not stand or spit on the flag. Id. ¶ 17.

At no time during the Red Oak protests were any of the Petitioners arrested or charged with any crime. Id. ¶ 18. Nonetheless, Petitioners claim that their First Amendment right to use the flag as part of their protests has been chilled by law enforcement action, and that they fear arrest or prosecution if they use the flag at future protests. Clerk's No. 84-1 ¶ 9.

II. RELEVANT STATUTES

Petitioners challenge the constitutionality of three Iowa statutes. First, the " flag desecration statute" provides that:

Any person who in any manner, for exhibition or display, shall place or cause to be placed, any word, figure, mark, picture, design, drawing, or any advertisement of any nature, upon any flag, standard, color, ensign, shield, or other insignia of the United States, or upon any flag, ensign, great seal, or other insignia of this state, or shall expose or cause to be exposed to public view, any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag, ensign, great seal, or other insignia of this state, upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed, any word, figure, mark, picture, design, or drawing, or any advertisement of any nature, or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away, or for use for any purpose any article or substance, being an article of merchandise or a receptacle of merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached or otherwise placed, a representation of any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag, ensign, great seal, or other insignia of this state, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed, or who shall publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque, either by words or act, such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state, or who shall, for any purpose, place such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state, upon the ground or where the same may be trod upon, shall be deemed guilty of a simple misdemeanor.

Iowa Code § 718A.1A (hereinafter " flag desecration statute" ). Second, Petitioners challenge the " flag misuse" statute, which provides that:

A person commits a simple misdemeanor when the person does any of the following:
. . .
6. Knowingly and publicly uses the flag of the United States in such a manner as to show disrespect for the flag as a symbol of the United States, with the intent or reasonable expectation that such use will provoke or encourage another to commit trespass or assault.

Iowa Code § 723.4(6) (hereinafter " flag misuse statute" ). Third, Petitioners challenge

Page 947

the " enforcement" statute which provides that:

It shall be the duty of the sheriffs of the various counties, chiefs of police, and city marshals to enforce the provisions of this chapter, and for failure to do so they may be removed as by law provided. This chapter shall not be construed to apply to a newspaper, periodical, book, pamphlet, circular, certificate, diploma, warrant, or commission of appointment to office, ornamental picture, article of jewelry, or stationery for use in private correspondence, on any of which shall be printed, painted, or placed, said flag, disconnected from any advertisement. Nothing in this chapter shall be construed as rendering unlawful the use of any trademark or trade emblem actually adopted by any person, firm, corporation, or association prior to January 1, 1895.

Iowa Code § 718A.6 (hereinafter " enforcement statute" ).

III. STANDARD FOR SUMMARY JUDGMENT

The term " summary judgment" is something of a misnomer.[2] See D. Brock Hornby, Summary Judgment Without Illusions, 13 Green Bag 2d 273 (Spring 2010). It " suggests a judicial process that is simple, abbreviated, and inexpensive," while in reality, the process is complicated, time-consuming, and expensive. Id. at 273, 281. The complexity of the process, however, reflects the " complexity of law and life." Id. at 281. " Since the constitutional right to jury trial is at stake," judges must engage in a " paper-intensive and often tedious" process to " assiduously avoid deciding disputed facts or inferences" in a quest to determine whether a record contains genuine factual disputes that necessitate a trial. Id. at 281-82. Despite the seeming inaptness of the name, and the desire for some in the plaintiffs' bar to be rid of it, the summary judgment process is well-accepted and appears " here to stay." Id. at 281. Indeed, " judges are duty-bound to resolve legal disputes, no matter how close the call." Id. at 287.

Federal Rule of Civil Procedure 56(b) provides that " [a] party against whom relief is sought may move at any time . . . for summary judgment on all or part of the claim." " [S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir. 1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n.5 (8th Cir. 1975)). The purpose of summary judgment is not " to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)). Rather, it is designed to avoid " useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining

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to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir. 1976) (citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th Cir. 1975)).

Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment upon motion after there has been adequate time for discovery. Summary judgment can be entered against a party if that party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriately granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and that the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). The Court does not weigh the evidence, nor does it make credibility determinations. The Court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wilson v. Myers, 823 F.2d 253, 256 (8th Cir. 1987) (" Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact." ) (citing Weightwatchers of Quebec, Ltd. v. Weightwatchers Int'l, Inc., 398 F.Supp. 1047, 1055 (E.D.N.Y. 1975)).

In a summary judgment motion, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 248. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed.R.Civ.P. 56(e)(2). This additional showing can be by affidavits, depositions, answers to interrogatories, or the admissions on file. Id.; Celotex, 477 U.S. at 322-23; Anderson, 477 U.S. at 257. " [T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. An issue is " genuine," if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 248. " As to materiality, the substantive law will identify which facts are material . . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id.

Particularly in the presence of competing cross motions for summary judgment, a court must keep in mind that summary judgment is not a paper trial. Therefore, a " district court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In a motion for summary judgment, the Court's job is only to decide, based on the evidentiary record that accompanies the moving and resistance filings of the ...


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