In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2255

WORLDWIDE STREET PREACHERS’ FELLOWSHIP,

RON MCRAE, DANIEL GOWAN, et al.,

Plaintiffs-Appellants,

v.

BART PETERSON, Mayor, in his official capacity as

Mayor of the City of Indianapolis, MICHAEL O’CONNOR,

in his official and individual capacity, MARK R. RAND,

Officer, in his official and individual capacity, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 03 C 1516—John Daniel Tinder, Judge.

____________

ARGUED SEPTEMBER 29, 2004—DECIDED OCTOBER 29, 2004

____________

Before CUDAHY, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. Worldwide Street Preachers’

Fellowship and its members (collectively “SPF”) filed an

action pursuant to 42 U.S.C. § 1983 against the City of

Indianapolis and its officials (collectively “the City”). The

complaint alleged that the defendants, operating under the
2 No. 04-2255

color of state law, had interfered with SPF’s street preaching

activities during the parade held in conjunction with the

Indianapolis Five Hundred mile race and, consequently,

had deprived them of their rights to the free exercise of

religion, to freedom of speech and to assembly, in violation

of the First and Fourteenth Amendments to the Constitution

of the United States.

SPF moved for a preliminary injunction to prevent the

City from restricting its activities during the 2004 parade.

The district court granted in part and denied in part this

motion. SPF appeals. For the reasons set forth in the following opinion, we have concluded that the issue of whether a

preliminary injunction ought to have been issued is moot.

Accordingly, we must dismiss SPF’s appeal.

I

BACKGROUND

A. Facts

Since 1957, the City of Indianapolis has played host to a

festival on Memorial Day weekend to celebrate the running

of the Indianapolis Five Hundred mile motor race. The

event is organized and sponsored by 500 Festival, a private

nonprofit Indiana corporation, under permit from the City.

Every year on Memorial Day Saturdays, 500 Festival sponsors a pre-race parade that winds its way through the city

and attracts some 250,000 spectators.

The parade is designated as a special event by city ordinance. 500 Festival applies each year for a permit to operate

the festival; once granted, the permit affords 500 Festival

use of a specified geographic area in the city for its event.

The permit’s conditions restrict other groups’ use of the

designated area during the event. For example, vendors are
No. 04-2255 3

not permitted to set up within fifty feet of the event boundaries without the permission of the permit holder (500

Festival). The event sponsor coordinates public safety with

the city police department, which enforces the terms of the

permit. Some bleacher seats are available for sale, although

attendance at the parade is free to the public.

During the 2003 parade, SPF members attempted to preach

to event spectators. Accounts vary, but it is undisputed that

city police officers prevented SPF from displaying large

banners, using megaphones and passing out leaflets. Some

SPF members were arrested.

B. District Court and Court of Appeals Proceedings

SPF filed an action pursuant to 42 U.S.C. § 1983 against the

City for violations of its rights under the First Amendment.

Concerned that the City would prohibit their preaching

activities at the 2004 parade, scheduled for May 29, SPF also

moved for a preliminary injunction to prevent the City from

stopping its stationary preaching and use of leaflets,

banners and megaphones during the parade. The City

admitted to the district court that it would not allow these

activities during the upcoming event unless SPF received

permission from 500 Festival, the sponsor and permit holder.

In seeking the preliminary injunction, SPF pointedly did not

challenge facially any law or ordinance, but rather sought

prospectively to prevent the City from limiting its First

Amendment rights during the 2004 parade. SPF did not seek

permission to conduct its preaching activities from 500

Festival. Neither party joined 500 Festival as a party to the

underlying litigation.

The district court determined that SPF had demonstrated

a likelihood of success on the merits, and then balanced the

harms to each party that would result from the issuance of
4 No. 04-2255

a preliminary injunction. According to the district court, this

balance favored enjoining the City from preventing SPF’s

leaflet activity, but did not favor an injunction regarding the

banners, stationary preaching, or use of megaphones. SPF

appealed to this court.

SPF then filed a motion before this court, on May 18, 2004,

styled a “Motion for Expedited Appeal and Advancement

of Hearing.” It sought to extend the district court’s preliminary injunction beyond leaflet activity to prohibit any restriction on the raising of banners, preaching in one place,

or using megaphones during the 2004 parade. This court

treated SPF’s filing as a request for injunction pending appeal and directed the City to file a response that would address whether, in light of Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), the

City had a role to play in prohibiting public participation in

the parade. This court later entered a preliminary injunction

that enjoined the City from “excluding the appellants from

stationary preaching and the display of banners within the

boundaries of the 500 Festival Parade unless the parade

organizers otherwise object to such activities.” Order,

May 27, 2004 at 2. On May 29, 2004, the parade occurred as

scheduled.

II

DISCUSSION

This court’s jurisdiction to review the grant or denial of a

preliminary injunction is grounded in 28 U.S.C. § 1292(a)(1).

Congress’ authority to confer jurisdiction upon us, however,

is limited by Article III of the Constitution, which extends

federal judicial power only to “Cases” and “Controversies.”

U.S. Const. art. III, § 2. As a result of this limitation, federal

courts “may not ‘give opinions upon moot questions or ab-
No. 04-2255 5

stract propositions.’ ” Calderon v. Moore, 518 U.S. 149, 150

(1996) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).

Mootness, therefore, is always a threshold jurisdictional

question that we must address even when it is not raised by

the parties. See North Carolina v. Rice, 404 U.S. 242, 246

(1971); Orion Sales, Inc. v. Emerson Radio Corp., 148 F.3d 840,

842 (7th Cir. 1998). 

In its motion for a preliminary injunction, SPF did not

challenge any Indiana statute or Indianapolis ordinance.

Nor did it challenge the process by which permits are issued

for such events. Rather, it simply asked the district court to

protect its efforts during the 2004 parade, an event that

occurred several months ago. The district court’s determination of that issue is the only subject of this appeal. Now that

the 2004 parade is over, nothing that we might do at this

point can alter what took place during the parade. We can

no longer “affect the rights of litigants in the case.” Rice, 404

U.S. at 246; see also Orion Sales, 148 F.3d at 842 (dismissing

appeal in which oral arguments occurred two months after

expiration of the preliminary injunction). Indeed, this court

already has addressed the relief sought by SPF and supplemented the relief previously granted by the district court. 

At oral argument, SPF asserted that this court’s injunction

did not address all of its concerns because it enjoined the

City only from prohibiting stationary preaching and banner

activities without addressing its claimed right to leaflet or

to preach among the crowd. The district court’s preliminary

injunction, however, protected the right to hand out leaflets,

and the City never claimed that it had a right to prohibit

mobile preaching. In any event, there is nothing that this

court can do to enjoin the City’s actions with respect to a

parade that already has occurred. Thus, because we cannot

affect the asserted rights of SPF or the City, this appeal of

the preliminary injunction is moot.
6 No. 04-2255

At oral argument, SPF contended, for the first time, that it

seeks a permanent injunction against the City to prevent

police officers from restricting their activities at future parades. It would be inappropriate for this court to extend the

appeal of a preliminary injunction order to address matters

that properly are the subject of ongoing litigation in the district court. The subject of a permanent injunction is still

before the court and, “[w]ithout [its] full deliberation on the

merits of the case, we cannot” determine whether such

action is warranted under the circumstances. Orion Sales,

148 F.3d at 843.

In response to our mootness concerns, SPF submitted that

we should review the preliminary injunction because the

City’s alleged policies restricting their activities are capable

of repetition, yet evade review. See, e.g., City of Los Angeles

v. Lyons, 461 U.S. 95, 109-10 (1983); Tobin for Governor v.

Illinois State Bd. of Elections, 268 F.3d 517, 528-29 (7th Cir.

2001). But “the capable-of-repetition doctrine applies only

in exceptional situations,” Lyons, 461 U.S. at 109, “when (1)

the challenged action is too short in duration to be fully litigated prior to its cessation or expiration, and (2) there is a

reasonable expectation that the same complaining party will

be subjected to the same action again,” Tobin for Governor,

268 F.3d at 529 (citing Illinois State Bd. of Elections v. Socialist

Workers Party, 440 U.S. 173, 187 (1979)). 

This appeal does not present such an “exceptional situation.” The 2004 parade has ended, and SPF has not demonstrated any impediment to challenging the complained-of

City activities before the next parade in May 2005. If the

§ 1983 action concludes before then, SPF will have an

answer to their request for a permanent injunction. If the

action is still pending when the 2005 parade date approaches, SPF may request that the district court issue another preliminary injunction and later seek review of that
No. 04-2255 7

court’s action here. The history of this litigation makes clear

that timely review can be obtained. 

SPF also failed to demonstrate that it necessarily will be

subjected in 2005 to precisely the same treatment that it received in 2003. Indeed, much of the district court’s analysis

in partially granting this preliminary injunction depended

upon the City’s admission that it would prevent SPF from

conducting certain activities in the same manner as its officers had in 2003. Now, because the 2004 parade occurred

under this court’s injunction, the City’s position well may

have changed. And there is no basis for this court to believe

that any wrongful activities by the City during the 2003

parade will be repeated in the 2005 parade.

Conclusion

For the foregoing reasons, the appeal is dismissed for

want of jurisdiction.

APPEAL DISMISSED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-29-04