*

The Honorable Bernice B. Donald, 

the Western District of Tennessee, sitting 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

JAMES L. POUILLON,

Plaintiff-Appellant,

v.

CITY OF OWOSSO; SERGEANTSHARON LITTLE; and OFFICERW. G. BLANCHETT,

Defendants-Appellees.

Appeal from the United St

for the Eastern District of M

No. 97-70413—Anna Diggs T

Argued: Septembe

Decided and Filed: M

Before: BOGGS and DAUGHTR

DONALD, Distri
2 Pouillon v. City of Owosso, et al. No. 98-1967

_________________

COUNSEL

ARGUED: 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 by

Owosso, 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 further
14 Pouillon v. City of Owosso, et al. No. 98-1967

reasonable 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 of

material 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.

V

Based on the record before us, we hold that the judge’s

instructions, 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, we AFFIRM in part and REVERSE in part, and

REMAND this case to the district court for furtherproceedings in accordance with this opinion.

No. 98-1967 Pouillon v. Cproceedings under the appropriate this opinion.

I

James Pouillon is a dedicated ant

non-working life is largely devoteHe was a familiar figure on the strstaged abortion protests for a portioweekday for over ten years. On thhad decided to move his protest frthe sidewalk to a position on a smand lower short flights of steps to themselves. On the sidewalk, he hverbal abuse as well as assorted malmost run down by a motorist sidewalk and drove straight at hima ticket on the sidewalk by Sergoccasion for violating a city ordinpublic right-of-way. However, Sethis incident involved a large, freePouillon’s usual hand-held sign, rather than Pouillon’s presence, sidewalk obstruction and resulted occasion.

On December 22, 1994, Ser

Blanchett, responding to a compresence there, went to city hall’s move to the sidewalk. Pouillon cogave is that he was on private proviolating the doctrine of separation deny this and claim that they tolentry to and egress from city halrefused to move, he was arrested unwhich prohibits impeding a police his or her duties.

The police assert that Pouillon 

that he admitted that he wanteddenies this. The arrest itself appe
4 Pouillon v. City of Owosso, et al. No. 98-1967

with 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.

 II

Sergeant Little and Officer Blanchett both testified at trial

that, 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. 98-1967 Pouillon v. C

III

One further issue remained in th

the manner of Pouillon’s arrest, if outrageous as to warrant punitive this could hinge on contested qucontends the district court erred in claim for such damages.

Dismissal by the district court 

claim for exemplary damages idiscretion. See Gordon v. NormanCir. 1986). In the latter case, this of punitive damages for violations evaluation of the nature of the wisdom of some form of pecunadvisability of a deterrent. Theredamages and the amount thereonecessity within the discretion of t

noted earlier, Pouillon’s arrest wrelaxed and cordial fashion, endinrecognizance and his delivery, couhis own vehicle. We find that the its discretion in determining that tinstance hardly rises to the level opunitive damages, even if it is foununlawful and that compensatory d

IV

Since it involves a question of 

novo a district court’s denial of a matter of law (motion for a dirrenewed motion for judgment as a judgment notwithstanding the verWelding Systems & Robot Corp., Cir. 1999) (citing K & T Enterpris97 F.3d 171, 175 (6th Cir. 1996), aSteak Houses, Inc., 49 F.3d 115“Judgment as a matter of law is apis a complete absence of fact to sup
12 Pouillon v. City of Owosso, et al. No. 98-1967

was 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 alternative

channel 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 was

improperly submitted to the jury under 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 in

submitting 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. 98-1967 Pouillon v. C

Pouillon also contends that the 

reversible error in allowing the jugeneral verdict that allowed a qurather than putting special interrobasis of which the court could thequalified immunity as a matter decision whether or not to submit a special interrogatories is within discretion. Fed. R. Civ. P. 49. Sucthis court for abuse, which “is defconviction that the trial court judgment.” See Monette v. AM-276, 280 (6th Cir. 1991) (quoting Corp., 865 F.2d 789, 790 (6th Cirdiscretion will not be disturbed unerroneous findings of fact or when law or uses an erroneous legal stanDetroit Diesel, Inc., 859 F.2d 26, 

This case involves related 

determination. First, there are thrwhat happened at city hall on DPouillon obstructing anyone? Cohave thought he was or might be did the officers arrest Pouillon? questions for the jury as finders olegal issues. What are the standwhether Pouillon’s actions are cDid the officers’ actions violate coare matters on which the judge mu

In analyzing qualified immunity 

novo review because the issue wheapplicable to an officer’s actioDickerson v. McClellan, 101 F.3d 1

However, “[w]here . . . the legimmunity turns upon which versiothe jury, not the judge, must determof Mount Pleasant, 142 F.3d 898, 9either case, “[t]he first step in a qu
6 Pouillon v. City of Owosso, et al. No. 98-1967

is whether, based on the applicable law, a constitutionalviolation occurred.” Dickerson, 101 F.3d at 1157.

A

The initial question before us, therefore, is whether

Pouillon 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 in Perry Educational

Ass’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 implicitly

regarded 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 as

No. 98-1967 Pouillon v. C

C

 The third question is whether r

to the sidewalk was a reasonable restriction that, as the First Amenample alternative channels of commU.S. at 45. Under the circumstancinvolved disputed claims as to Pouof harassment on the streets, whetthere would inhibit his protest, as contrary to this claim, he in fact did on those sidewalks. Like the sPouillon’s actual protest impeded also should have gone to the jury.

D

The verdict form that was prov

preceding three questions togetherfor either the plaintiff or the defenof violation of his federal constituand assembly.” The instructions “I instruct you that the governmenreasonable time, place and manner of the First Amendment rights. restrictions may be imposed provwithout reference to the content of they are narrowly tailored to serve interest, and that they leave open afor communication.” Pouillon v. CAction No. 97-CV-70413-DT,Jury 71 (E.D. Mich. April 17, 1998). Bbeen free to decide, for example, thbe on the steps and could be orsomeone from City Hall. In painstructed that Pouillon had a righfree from arrest for doing so, unlesas a matter of law, permissibly retime, place, and manner restriction (first jury question) the applicatio
10 Pouillon v. City of Owosso, et al. No. 98-1967

permitted 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.

B

The second question is then whether Pouillon’s actual

protest impermissibly interfered with public use of the steps.Both Sergeant Little and Officer Blanchett testified that theyfelt Pouillon was impeding access to the building, and

ultimately 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 photograph

of 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. 98-1967 Pouillon v. Cnonpublic property that can be property owner, i.e. the City assuming evenhandedness and absparticular expression).

The issue before us is whether ci

a public forum. Insofar as this issumight also be a factual question, been transformed into a public onlong line of cases concerning pubdefinitive answer. The Supreme recognition to public streets and public protest, see, e.g., Hague v. 16 (1939). The Court has also held a “limited public forum” requiring proposed regulation of speech International Soc. for Krishna Con655 (1981). But when it comes to phas been more reticent. In Greer v(1976), the Court took pains to pogovernment building is open to thhours, and that the public may fgrounds at all times, does not thereor those grounds into a public forholding when, in United States v. (1983), it invalidated a District restricting protests in and around thbut only insofar as the statute surrounding the building. Thesetraditional public forum which couall-encompassing way. But Grace 

the statute which proscribed proSupreme Court steps.

This drew a dissent from Justice 

statute unconstitutional on its facwhose citations imply that goquintessential public fora afforded First Amendment purposes. His ciinstant set of facts, Edwards v. Sou
8 Pouillon 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 make Edwards

stand for the flat proposition “that demonstrations on or nearlegislative grounds fall within the protection of the FirstAmendment,” as the District of Columbia District Court didin Jeannette 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 (citing Adderly 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 constitutionally be denied broadly and absolutely. . . .” Ibid. (quoting Amalgamated Food Employees UnionLocal 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315(1967)) (emphasis added).

No. 98-1967 Pouillon v. C

Courthouses and the area surrou

to be a special case. Grace, discuoverturn the decision in Cox v. (1965), upholding a statute banoutside a courthouse that are intenof a proceeding within. But that lifrom the city hall steps of Owossoseems in the highest degree linkexpression of opinion, comparable a capitol building as a public foruheld that the United States Capitoare proper fora for demonstratioCapitol Square Review and AdvisCir. 1994) (holding public square building a public forum); Shiel v. U(D.C. Ct. App. 1986) (holding the closed early prior to President’s aavailable to protestors during normdenied, 108 S.Ct. 1477 (1988); GSupp. 1363 (W.D. Wis. 1996) rotunda a public forum, based on ACT-UP v. Walp, 755 F. Supp. (similarly, Pennsylvania capitol roof Georgia v. Harris, 752 F. Su(plaza in front of Georgia state cdesignation).

In most of these cases, the issue 

the history of the building’s use; the that no one raised the question osteps had been used in the past, wdemonstrations or not. But in the the steps of this public building restricted, we hold that the steps otraditional public forum, and that ebanned absolutely. Regulation of course, permissible within reason, jon sidewalks and parks is, but subjected to the same strict scrutinplace, and manner regulations,”