Morris v. Huebsch

3 F. Supp. 3d 746, 2014 U.S. Dist. LEXIS 25771, 2014 WL 801448
CourtDistrict Court, W.D. Wisconsin
DecidedFebruary 28, 2014
DocketNo. 12-cv-319-wmc
StatusPublished
Cited by1 cases

This text of 3 F. Supp. 3d 746 (Morris v. Huebsch) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Huebsch, 3 F. Supp. 3d 746, 2014 U.S. Dist. LEXIS 25771, 2014 WL 801448 (W.D. Wis. 2014).

Opinion

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

On January 26, 2012, Lincoln Morris was arrested by the Capitol Police and issued a citation for disorderly conduct pursuant to Wisconsin Administrative Code § Adm 2.14(2)(k) for drumming in the State Capitol rotunda. In this civil suit, Morris seeks damages from the arresting officers for deprivation of his rights under the First and Fourth Amendments of the Constitution. Morris also sues senior officials in the Wisconsin Department of Administration in their representative capacities, seeking a declaratory judgment that: (1) § Adm 2.14(2)(k) is facially unconstitutional; and (2) a “no drumming” rule adopted by the Capitol Police in furtherance of § Adm 2.14(2)(k) is also unconstitutional. Morris also seeks an injunction barring the Department of Administration from enforcing these rules in the future. The defendants responded with a motion for dismissal of all claims for monetary relief on the basis of qualified immunity, which the court will now grant in part, dismissing all defendants to the extent they have been sued in their personal capacity with respect to plaintiffs Fourth Amendment claims and with respect to plaintiffs First Amendment vagueness claims. Although it appears unlikely plaintiff will ultimately succeed on his remaining First Amendment challenge to the “no drumming” restriction, plaintiff has not pled himself out of court on that claim.

FACTUAL ALLEGATIONS

Under Federal Rule of Civil Procedure 12(c), “a party may move for judgment on the pleadings.” To succeed, “the moving party must demonstrate that there are no material issues of fact to be resolved.” N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir.1998). Accordingly, the court must “accept all well-pleaded allegations in the complaint as true,” Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir.2000), and “view the facts alleged in the light most favorable to the non-moving party,” Emergency Serv’s Billing Corp., Inc. v. Allstate Ins. Co., 668 F.3d 459, 464 (7th Cir.2012). In ruling on a 12(c) motion, a district court “may take into consideration documents incorporated by reference to the pleadings ... [and] take judicial notice of matters of public record.” United States v. Wood, 925 F.2d 1580, 1582 (7th Cir.1991) (citation omitted). Consistent with these parameters, the court assumes the following facts to be true for purposes of deciding defendants’ motion to dismiss.

A. The Parties

Plaintiff Lincoln S. Morris is a resident of Bayfield, Wisconsin and a member of the Red Cliff Band of Lake Superior Chippewa Indians (“Red Cliff Band”). Defendant Mike Huebsch is the Secretary of the Wisconsin Department of Administration (“DOA”). Defendant David Erwin is the Chief Administrator of the Division of Capitol Police, which is part of the DOA.1 The remaining defendants also work for [750]*750the Capitol Police: Edwin Bardon is a detective; Todd Thomas is a sergeant; and Daniel Essington and Jeff Calhoun are both officers.

B. Events of January 26, 2012

On January 26, 2012, several Lake Superior Chippewa Indians travelled to the State Capitol in Madison, Wisconsin, to voice opposition to proposed mining legislation. Morris was part of this group, and brought with him a handmade spiritual Chippewa drum.

At 12:15 p.m., a five-person drum group from the Bad River Band of Lake Superior Chippewa Indians played a spiritual drum song and Chippewa prayer on the ground floor level of the Capitol rotunda. Morris did not participate. When the Bad River Band finished and left the rotunda, then-Chief of the Capitol Police Charles Tubbs informed Attorney Glenn Stoddard, who was present as a legal representative for the Bad River Band, that there could be “no drumming at any time” in the Capitol pursuant to DOA policies governing public use of the building. Tubbs told Stoddard that members of the public, including the “Solidarity Singers” protest group, were allowed to sing and chant, but that drumming was forbidden.

Fifteen minutes after the Bad River Band drum group finished, Morris took his drum from the upper first-floor balcony, where he had been playing it softly, to the ground floor of the rotunda. Morris was welcomed by the Solidarity Singers, who were then singing and chanting, and encouraged “to drum a prayer” in opposition to the proposed mining legislation.

After a few minutes of drumming, Morris was approached by officers of the Capitol Police, including Officers Calhoun and Essington. The officers warned Morris that he must stop drumming and leave the Capitol or they would confiscate the drum and arrest him. Morris replied that he was unaware of any restriction on drumming, explained that there had been a misunderstanding, and asserted that he had a constitutional right to pray and protest.

Officer Calhoun reiterated that Morris’s action of striking the drum was considered “playing” an instrument, an act forbidden in the Capitol. Sergeant Thomas then directed Calhoun to remove Morris forcibly from the building. Calhoun told Morris that if he did not immediately leave with his drum, he would be arrested and ticketed for disorderly conduct. When Morris stood up with his drum, he was seized and escorted outside.

A short time later, Detective Bardon and Sergeant Thomas directed Officer Calhoun to arrest Morris and issue him a citation for disorderly conduct under Wisconsin Administrative Code § Adm 2.14(2)(k). Calhoun and Bardon then handcuffed and forcefully led Morris to the basement of the Capitol, where they detained him for thirty minutes. Calhoun told Morris that he had been arrested for “causing a disturbance by playing his instrument when he had been told he needed a permit inside the Capitol to continue his actions.” The citation was later dismissed by the Dane County District Attorney.

OPINION

Plaintiff brings suit against defendants Bardon, Thomas, Essington and Calhoun personally for monetary damages under 42 U.S.C. § 1983, and against defendants Huebsch and Erwin in their official capacity for purposes of declaratory and injunc-tive relief. In particular, plaintiff claims that the defendants: (1) deprived him of his First Amendment right to free speech by prohibiting him from drumming in the Capitol rotunda; and (2) deprived him of his Fourth Amendment right to be free from unreasonable police seizures by forci[751]*751bly removing him from the rotunda, handcuffing him, and leading him to the Capitol basement for processing of an administrative citation.2 Defendants’ motion for judgment on the pleadings addresses only-plaintiffs claims for monetary relief, arguing that: (1) defendants’ qualified immunity shields them from personal liability for any arguable violation of plaintiffs First and Fourth Amendment rights; and (2) the complaint fails to state a legal claim against defendant Daniel Essington.

1. Qualified Immunity

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Bluebook (online)
3 F. Supp. 3d 746, 2014 U.S. Dist. LEXIS 25771, 2014 WL 801448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-huebsch-wiwd-2014.