*The Honorable Bernice B. Donald, United States District Judge forthe Western District of Tennessee, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0093P (6th Cir.)File Name: 00a0093p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________JAMESL.POUILLON,Plaintiff-Appellant,v.CITY OFOWOSSO;SERGEANTSHARONLITTLE; and OFFICERW.G.BLANCHETT,Defendants-Appellees.;>1No. 98-1967Appeal from the United States District Courtfor the Eastern District of Michigan at Detroit.No. 97-70413—Anna Diggs Taylor, District Judge.Argued: September 23, 1999Decided and Filed: March 16, 2000Before: BOGGS and DAUGHTREY, Circuit Judges; andDONALD, District Judge.*2Pouillon v. City of Owosso, et al.No. 98-1967_________________COUNSELARGUED:Michael J. Gildner, SIMEN, FIGURA &PARKER, Flint, Michigan, for Appellant. Marcia L. Howe,JOHNSON, ROSATI, LaBARGE, ASELTYNE & FIELD,Farmington Hills, Michigan, for Appellees.ON BRIEF:Michael J. Gildner, SIMEN, FIGURA & PARKER, Flint,Michigan, for Appellant. David R. Brinks, JOHNSON,ROSATI, LaBARGE, ASELTYNE & FIELD, Lansing,Michigan, for Appellees._________________OPINION_________________BOGGS, Circuit Judge. James L. Pouillon was arrested byOwosso, Michigan city police while protesting on publicproperty against abortion. The arrest was ostensibly for“refusing a lawful police order” to move, and “obstructingpassage to a public building.” Pouillon sued the City ofOwosso and two of its police officers, under 42 U.S.C.§ 1983, for violating his clearly established constitutionalrights to freedom of speech, religion, and assembly byarresting him for protesting abortion while standing with asign in front of city hall. The district court denied his motionfor summary judgment and, after a jury found against him, hisrenewed motion for judgment as a matter of law. He appealsthese rulings, and also contends that the district courtcommitted reversible error in submitting to the jury the issueof defendants’ qualified immunity, rather than submittingspecial interrogatories on the basis of which the court wouldthen decide the question of whether the defendants’ actionswere qualifiedly immune. He also appeals the district court’sdismissal sua sponte of his claim for punitive damages. Thedistrict court submitted the case to a jury under instructionsthat misstated and conflated the principles of qualifiedimmunity, First Amendment rights, and freedom fromarbitrary arrest. We therefore remand this case for further14Pouillon v. City of Owosso, et al.No. 98-1967reasonable juror could have found for the nonmoving party.”Ibid.The standard used by this court is thus “identical to theone used by the district court.”Phelps v. Yale Sec., Inc., 986F.2d 1020, 1023 (6th Cir. 1993).Because, as has been explained above, there are issues ofmaterial fact requiring jury decision, judgment as a matter oflaw would not be appropriate in this case. Accordingly weaffirm the district court’s denial of Pouillon’s motions forjudgment as a matter of law.VBased on the record before us, we hold that the judge’sinstructions, properly objected to by the plaintiff, did not statethe law correctly. We further hold that the record reveals agenuine issue of material fact as to the conduct of Pouillon onthe day in question, and as to whether he could beconstitutionally arrested for those actions. Finally, we makeno determination on the question of qualified immunity, butrefer the district court to the controlling Supreme Court andSixth Circuit decisions, should a determination on qualifiedimmunity become necessary on remand. For the foregoingreasons, weAFFIRMin part andREVERSEin part, andREMANDthis case to the district court for furtherproceedings in accordance with this opinion.No. 98-1967Pouillon v. City of Owosso, et al.3proceedings under the appropriate standards, as set forth inthis opinion.IJames Pouillon is a dedicated anti-abortion protester whosenon-working life is largely devoted to activism in that cause.He was a familiar figure on the streets of Owosso, where hestaged abortion protests for a portion of each day almost everyweekday for over ten years. On the date he was arrested, hehad decided to move his protest from his customary post onthe sidewalk to a position on a small plaza separating upperand lower short flights of steps to city hall, or on the stepsthemselves. On the sidewalk, he had often been the target ofverbal abuse as well as assorted missiles, and had once beenalmost run down by a motorist who swerved onto thesidewalk and drove straight at him. He had also been issueda ticket on the sidewalk by Sergeant Little on an earlieroccasion for violating a city ordinance banning signs in thepublic right-of-way. However, Sergeant Little testified thatthis incident involved a large, free-standing sign rather thanPouillon’s usual hand-held sign, and that it was the sign,rather than Pouillon’s presence, that had constituted thesidewalk obstruction and resulted in his ticket on that earlieroccasion.On December 22, 1994, Sergeant Little and OfficerBlanchett, responding to a complaint about Pouillon’spresence there, went to city hall’s steps and ordered him tomove to the sidewalk. Pouillon contends that the reason theygave is that he was on private property and in any case wasviolating the doctrine of separation of church and state. Theydeny this and claim that they told him he was obstructingentry to and egress from city hall. In any event, when herefused to move, he was arrested under City Ordinance 19-27,which prohibits impeding a police officer in the conduct ofhis or her duties.The police assert that Pouillon was actively seeking, andthat he admitted that he wanted, to be arrested. Pouillondenies this. The arrest itself appears to have been handled4Pouillon v. City of Owosso, et al.No. 98-1967with some cordiality. For example, the officers moved hishandcuffs from behind his back to the front of his body sothat Pouillon could be more comfortable in the police cruiser;after he was taken to the police station, searched, and booked,he was released on a personal recognizance bond; SergeantLittle drove him back to his car so that he could be on timefor work. Nonetheless, Pouillon charges that the policeconduct was outrageous, constituted an abuse of power, andwarrants punitive damages, in addition to compensatorydamages for violation of his civil rights.IISergeant Little and Officer Blanchett both testified at trialthat, in their judgment, Pouillon and his sign constituted anobstruction of access to city hall, or would intimidate otherswho might wish to use the steps. Based on this judgment, andgiven that they had been dispatched there due to a complaint,they asked Pouillon to move to the sidewalk. Their defenseto Pouillon’s charge that the arrest constituted an illegaldeprivation of his First and Fourth Amendment rights is, first,that the restriction was a reasonable one since it left Pouillonalternative avenues of communication (the sidewalk), andfinally, that even if his allegations on this issue were taken astrue, the doctrine of qualified immunity shields them fromliability.Pouillon argues: (a) that his constitutional rights,specifically of freedom of speech, religion, assembly, andfreedom from unlawful arrest, were violated, in that theofficers’ restriction of his freedom of speech, even ifconstrued as a time, place, and manner regulation, was not areasonable one; and (b) that the trial court should haverejected the defendants’ qualified immunity defense andgranted plaintiff’s motion for judgment as a matter of lawsince, as he argues, there were no factual disputes permittingsuch a defense, in that any reasonable officer would haveknown that her actions involved such a constitutionalviolation.No. 98-1967Pouillon v. City of Owosso, et al.13IIIOne further issue remained in this trial, and that is whetherthe manner of Pouillon’s arrest, if it was not lawful, was sooutrageous as to warrant punitive damages. In some casesthis could hinge on contested questions of fact. Pouilloncontends the district court erred in dismissing sua sponte hisclaim for such damages.Dismissal by the district court sua sponte of a plaintiff’sclaim for exemplary damages is reviewed for abuse ofdiscretion.See Gordon v. Norman, 788 F.2d 1194, 1199 (6thCir. 1986). In the latter case, this court held that the awardof punitive damages for violations of civil rights “involves anevaluation of the nature of the conduct in question, thewisdom of some form of pecuniary punishment, and theadvisability of a deterrent. Therefore the infliction of suchdamages and the amount thereof when inflicted are ofnecessity within the discretion of the trier of fact.”Ibid.Asnoted earlier, Pouillon’s arrest was handled in a highlyrelaxed and cordial fashion, ending in his release on his ownrecognizance and his delivery, courtesy of Sergeant Little, tohis own vehicle. We find that the district court did not abuseits discretion in determining that the police’s conduct in thisinstance hardly rises to the level of egregiousness justifyingpunitive damages, even if it is found at trial that the arrest wasunlawful and that compensatory damages are due.IVSince it involves a question of law, this court reviews denovo a district court’s denial of a motion for judgment as amatter of law (motion for a directed verdict), and of arenewed motion for judgment as a matter of law (motion forjudgment notwithstanding the verdict).See Moore v. KukaWelding Systems & Robot Corp., 171 F.3d 1073, 1078 (6thCir. 1999) (citingK & T Enterprises, Inc. v. Zurich Ins. Co.,97 F.3d 171, 175 (6th Cir. 1996), andWehr v. Ryan’s FamilySteak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir. 1995)).“Judgment as a matter of law is appropriate only when thereis a complete absence of fact to support the verdict, so that no12Pouillon v. City of Owosso, et al.No. 98-1967was in fact content-neutral; or (b) (second jury question) hewas interfering with the public use of public property, forexample for such uses as access to the building. In eithercase, he must be afforded an ample alternative channel ofcommunication. What constitutes such channel is a matter oflaw, dependent on circumstances; but (third jury question) theactions in fact taken by intervening officers, here allegedlysimply ordering him to move to the nearby sidewalk, must befound by the jury to fit the legal definition, given the jury bythe court, of allowing an ample alternative channel ofcommunication.The verdict form also asked the jury to find separately on“Plaintiff’s claim of violation of his federal constitutionalright to be free from unlawful arrest.” But this, too,erroneously put before the jury a purely legal question. If theofficers’ order to Pouillon to move to the sidewalk was areasonable one,i.e. if it afforded him an ample alternativechannel of communication, then plaintiff’s claim fails as amatter of law. If not, it succeeds, again as a matter of law.Here there is nothing for a jury to decide.Finally, the question of qualified immunity, which wasimproperly submitted to the juryunder general instructions,is rather a question of law for determination by the judge.Questions of fact may be relevant to this determination,seeBrandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir.1989), but the ultimate question is one of law: if the finder offact determines that the officers undertook certain actions,could any reasonable police officer have believed that thoseactions did not violate Pouillon’s constitutional rights?SeeDominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987) (citingAnderson v. Creighton, 483 U.S. 635, 664 (1987).We hold that the district court abused its discretion insubmitting to the jury questions of law as well as of fact. Forthis reason we reverse the district court’s denial of Pouillon’smotion for special interrogatories and remand this case for anew trial on the three questions which, as we have justindicated, should have been put to the jury.No. 98-1967Pouillon v. City of Owosso, et al.5Pouillon also contends that the district court committedreversible error in allowing the jury to decide the case on ageneral verdict that allowed a qualified immunity defense,rather than putting special interrogatories to the jury on thebasis of which the court could then rule on the defendants’qualified immunity as a matter of law. A trial judge’sdecision whether or not to submit a dispute to the jury throughspecial interrogatories is within the trial court’s sounddiscretion. Fed. R. Civ. P. 49. Such discretion is reviewed bythis court for abuse, which “is defined as a definite and firmconviction that the trial court committed an error ofjudgment.”See Monette v. AM-7-7 Baking Co., 929 F.2d276, 280 (6th Cir. 1991) (quotingLogan v. Dayton HudsonCorp., 865 F.2d 789, 790 (6th Cir. 1989)). The trial court’sdiscretion will not be disturbed unless “it relies upon clearlyerroneous findings of fact or when it improperly applies thelaw or uses an erroneous legal standard.”Fleischut v. NixonDetroit Diesel, Inc., 859 F.2d 26, 30 (6th Cir. 1988).This case involves related sets of questions fordetermination. First, there are three factual questions aboutwhat happened at city hall on December 22, 1994. WasPouillon obstructing anyone? Could any reasonable officerhave thought he was or might be obstructing anyone? Whydid the officers arrest Pouillon? These are appropriatequestions for the jury as finders of fact. Second, there arelegal issues. What are the standards by which we judgewhether Pouillon’s actions are constitutionally protected?Did the officers’ actions violate constitutional rights? Theseare matters on which the judge must instruct the jury.In analyzing qualified immunity claims “[w]e conduct denovo review because the issue whether qualified immunity isapplicable to an officer’s actions is a matter of law.”Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996).However, “[w]here . . . the legal question of qualifiedimmunity turns upon which version of the facts one accepts,the jury, not the judge, must determine liability.”Sova v. Cityof Mount Pleasant, 142 F.3d 898, 903 (6th Cir. 1998). But ineither case, “[t]he first step in a qualified immunity analysis6Pouillon v. City of Owosso, et al.No. 98-1967is whether, based on the applicable law, a constitutionalviolation occurred.”Dickerson, 101 F.3d at 1157.AThe initial question before us, therefore, is whetherPouillon had the right to protest on city hall’s steps in the firstplace. The Supreme Court’s analysis of governmentalauthority to regulate speech, as given inPerry EducationalAss’n v. Perry Local Educators Ass’n, 460 U.S. 37, 44-46(1983), divides public property that may be used forexpression by the public into several categories. The firstcategory, and the one most open for public expression, is thatof the “traditional public forum,” the quintessential examplesof which are public streets and parks.Id.at 45. In such fora,“[t]he State may . . . enforce regulations of the time, place,and manner of expression which are content-neutral, arenarrowly tailored to serve a significant government interest,and leave open ample alternative channels ofcommunication.”Ibid.The second category includes publicproperty which the State has designated, perhaps only for agiven time, as open for use by the public for expressiveactivity; during the time it is so open, the same standardsapply here as apply to traditional public fora.Id.at 45-46.Finally, some public property may be neither traditional nordesignated public fora; in such venues the State may regulatespeech as it wishes, so long as the regulation is reasonableand not motivated by opposition to the views thus suppressed.Id. at 46.Sergeant Little’s testimony indicated that she implicitlyregarded the steps of city hall as belonging to the thirdcategory. That is, she drew a distinction between “Cityproperty” and “public property,” asserted that the City ofOwosso might flatly prohibit any protests on or near the stepsof city hall, and indicated that upon a complaint from city hallshe could lawfully order a protestor like Pouillon to movecompletely off the steps and adjoining plaza. She did not,however, know of any ordinance prohibiting such protests.She views the two sets of steps and plaza separating them asNo. 98-1967Pouillon v. City of Owosso, et al.11CThe third question is whether requiring Pouillon to moveto the sidewalk was a reasonable time, place, and mannerrestriction that, as the First Amendment requires, left openample alternative channels of communication.See Perry, 460U.S. at 45. Under the circumstances presented here, this tooinvolved disputed claims as to Pouillon’s earlier experiencesof harassment on the streets, whether ordering him to returnthere would inhibit his protest, as he claimed, and whether,contrary to this claim, he in fact did resume regular picketingon those sidewalks. Like the second question, whetherPouillon’s actual protest impeded access, this third questionalso should have gone to the jury.DThe verdict form that was provided to the jury mixed thepreceding three questions together. It asked the jury to findfor either the plaintiff or the defendant on “Plaintiff’s claimof violation of his federal constitutional right of free speechand assembly.” The instructions amplifying this form said:“I instruct you that the government may impose and enforcereasonable time, place and manner restrictions on the exerciseof the First Amendment rights. Time, place and mannerrestrictions may be imposed provided that they are justifiedwithout reference to the content of the regulated speech, thatthey are narrowly tailored to serve a significant governmentinterest, and that they leave open ample alternative channelsfor communication.”Pouillon v. City of Owosso, et al., CivilAction No. 97-CV-70413-DT,Jury Trial Proceedings, at 370-71 (E.D. Mich. April 17, 1998). But the jury should not havebeen free to decide, for example, that Pouillon had no right tobe on the steps and could be ordered off at the whim ofsomeone from City Hall. In particular, the jury must beinstructed that Pouillon had a right to demonstrate, and to befree from arrest for doing so, unless either (a) his protest was,as a matter of law, permissibly regulated by an appropriatetime, place, and manner restriction of general application, and(first jury question) the application of the restriction to him10Pouillon v. City of Owosso, et al.No. 98-1967permitted in, or on the steps of, public buildings such as cityhall.See Perry, 460 U.S. at 46. But contrary to SergeantLittle’s belief, Pouillon’s protest on the steps of city hallcould not be prohibited altogether.BThe second question is then whether Pouillon’s actualprotest impermissibly interfered with public use of the steps.Both Sergeant Little and Officer Blanchett testified that theyfelt Pouillon was impedingaccess to the building, andultimately both sides agreed that this was one of the mainissues upon which the legality of the officers’ order turned.As the Supreme Court has recognized, protest in even themost traditionally open public fora, such as streets and parks,may be regulated to protect those areas’ openness: “A groupof demonstrators could not insist upon the right to cordon offa public street, or entrance to a public or private building, andallow no one to pass who did not agree to listen to theirexhortations.”Cox, 379 U.S. at 555. Given Pouillon’sgeneral right to protest on city hall’s steps, the secondquestion to be answered in determining “whether aconstitutional violation occurred” in this instance is whetherPouillon’s protest, in the manner it was actually beingconducted, was impeding access to city hall such that it wasreasonable to require him to move. This is clearly a factualquestion, and if in dispute it is for the jury to resolve it.In this case the facts are indeed in dispute. A photographof city hall’s steps, with a sedate Pouillon standing on theplaza, at the foot of the upper set of steps and far to the edgeof the landing, was admitted into evidence as Plaintiff’sExhibit 2. But on direct examination of its witnesses, thedefense elicited testimony to the effect that this innocuousscene does not represent the reality of December 22nd, and ismisleading as to whether Pouillon was potentially impedingaccess to the building. Here we have a classic jury issue.No. 98-1967Pouillon v. City of Owosso, et al.7nonpublic property that can be regulated at will by theproperty owner, i.e. the City of Owosso (presumablyassuming evenhandedness and absence of animus towards aparticular expression).The issue before us is whether city hall’s steps are, instead,a public forum. Insofar as this issue is a matter of law (theremight also be a factual question,e.g., whether a forum hasbeen transformed into a public one by historical practice), along line of cases concerning public fora fails to provide adefinitive answer. The Supreme Court has long accordedrecognition to public streets and parks as prime areas forpublic protest,see, e.g., Hague v. C.I.O., 307 U.S. 496, 515-16 (1939). The Court has also held that a state fairgrounds isa “limited public forum” requiring comparable scrutiny of theproposed regulation of speech there.See Heffron v.International Soc. for Krishna Consciousness, 452 U.S. 651,655 (1981). But when it comes to public buildings, the Courthas been more reticent. InGreer v. Spock, 424 U.S. 828, 836(1976), the Court took pains to point out that the fact that agovernment building is open to the public during specifiedhours, and that the public may freely enter and leave itsgrounds at all times, does not thereby transform that buildingor those grounds into a public forum. The Court cited thisholding when, inUnited States v. Grace, 461 U.S. 175, 178(1983), it invalidated a District of Columbia ordinancerestricting protests in and around the Supreme Court building,but only insofar as the statute applied to the sidewalkssurrounding the building. These, the Court held, were atraditional public forum which could not be restricted in thisall-encompassing way. ButGraceleft intact that portion ofthe statute which proscribed protest on, for example, theSupreme Court steps.This drew a dissent from Justice Marshall, who found thestatute unconstitutional on its face and in its entirety, andwhose citations imply that government premises arequintessential public fora afforded the strictest scrutiny forFirst Amendment purposes. His citation most relevant to theinstant set of facts,Edwards v. South Carolina, 372 U.S. 2328Pouillon v. City of Owosso, et al.No. 98-1967(1963), is of a decision that had invalidated the conviction ofcommon-law breach of the peace of protestors on thestatehouse grounds in Columbia; it did not, however, do sothrough public forum analysis. Rather, the convictions wereheld to be unconstitutional because the arrests were basedonly on the protestors’ expression of unpopular views; thefact that the arrest had been on the statehouse grounds wascoincidental, although the Court noted that protesting thereinvolved “an exercise of . . . basic constitutional rights in theirmost pristine and classic form.”Id.at 235.It would seem a considerable stretch to makeEdwardsstand for the flat proposition “that demonstrations on or nearlegislative grounds fall within the protection of the FirstAmendment,” as the District of Columbia District Court didinJeannette Rankin Brigade v. Chief of Capitol Police, 342F. Supp. 575, 584 (D.D.C.),aff’d.409 U.S. 972 (1972). Inthat case, a three-judge court heard a challenge seekingdeclaratory and injunctive relief from a federal statuteprohibiting demonstrations on the grounds of the UnitedStates Capitol. The court held that a blanket prohibition of allassemblies and demonstrations within the traditionallyaccessible grounds of the national legislature, merely topreserve “the ‘serenity’ of a ‘park-like’ setting,” wasillegitimate.Id. at 585. Crucial to its reasoning was the factthat the Capitol grounds were traditionally an area of openpublic access, in contrast to types of public property whichhave been held not unrestrictedly open to the public and not,therefore, public fora for purposes of open expression: thisincludes such properties as jails (citingAdderly v.Florida, 385U.S. 39 (1966); and libraries, schools, and hospitals (citingGregory v. Chicago, 394 U.S. 111 (1969) (Black, J.,concurring at 118)).Id. at 583. But “streets, sidewalks,parks, and other similar public places are so historicallyassociated with the exercise of First Amendment rights thataccess to them for the purpose of exercising such rightscannot constitutionallybe denied broadly and absolutely. . . .”Ibid. (quotingAmalgamated Food Employees UnionLocal 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315(1967)) (emphasis added).No. 98-1967Pouillon v. City of Owosso, et al.9Courthouses and the area surrounding them have been heldto be a special case.Grace, discussedsupraat 7-8, did notoverturn the decision inCox v. Louisiana, 379 U.S. 559(1965), upholding a statute banning any demonstrationsoutside a courthouse that are intended to affect the outcomeof a proceeding within. But that limited situation is a far cryfrom the city hall steps of Owosso. The latter is a venue thatseems in the highest degree linked, traditionally, with theexpression of opinion, comparable not to a courthouse but toa capitol building as a public forum. Numerous cases haveheld that the United States Capitol, as well as state capitols,are proper fora for demonstrations.See, e.g., Pinette v.Capitol Square Review and AdvisoryBd., 30 F.3d 675 (6thCir. 1994) (holding public square across from Ohio capitolbuilding a public forum);Shiel v. United States, 515 A.2d 405(D.C. Ct. App. 1986) (holding the Capitol Rotunda might beclosed early prior to President’s address there, but must beavailable to protestors during normal hours when open),cert.denied, 108 S.Ct. 1477 (1988);Gaylor v. Thompson, 939 F.Supp. 1363 (W.D. Wis. 1996) (Wisconsin state capitolrotunda a public forum, based on its traditional open use);ACT-UP v. Walp, 755 F. Supp. 1281 (M.D.Penn. 1991)(similarly, Pennsylvania capitol rotunda);Chabad-Lubavitchof Georgia v. Harris, 752 F. Supp. 1063 (N.D.Ga. 1990)(plaza in front of Georgia state capitol a public forum bydesignation).In most of these cases, the issue is decided by reference tothe history of the building’s use; the record before us indicatesthat no one raised the question of how Owosso’s city hallsteps had been used in the past, whether made available todemonstrations or not. But in the absence of a showing thatthe steps of this public building have been traditionallyrestricted, we hold that the steps of Owosso’s city hall are atraditional public forum, and that expression there cannot bebanned absolutely. Regulation of speech in that setting is, ofcourse, permissible within reason, just as regulation of speechon sidewalks and parks is, but such regulations will besubjected to the same strict scrutiny. Thus, “reasonable time,place, and manner regulations,” if content-neutral, are