S t . Louis v. Eldredge, et al.

• Court: District Court, D. New Hampshire
• Decided: March 31, 1997
• Docket: CV-95-178-B
• Status: Published

Opinion

S t . Louis v . Eldredge, et a l . CV-95-178-B 03/31/97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Vincent St. Louis

v. 95-178-B

Carleton Eldredge, et a l .

ORDER

Vincent S t . Louis brought a federal civil rights claim under

42 U.S.C.A § 1983 (West 1994) against the City of Portsmouth

asserting that the city council’s passage of its “Adult-Oriented

Establishments” ordinance1 violated his constitutional rights.2

I dismissed this claim in a prior order because S t . Louis conceded that the ordinance was constitutional, and I held that a

1 This ordinance, passed on October 4 , 1993, requires that every “adult-oriented establishment” be well-lighted and that the interiors of video viewing booths be “clearly visible” from the common areas of the establishment. It also prohibits doors and other obstructions that would block visibility into video viewing areas. 2 S t . Louis also alleged other § 1983 violations and state law torts against the City of Portsmouth, Rockingham County, and various city and county officials. These claims were dismissed by my order of January 2 6 , 1996 and my concurrent orders of March 3 1 , 1997. Those orders contain the factual background of S t . Louis’s action. city could not be successfully sued for enacting a constitu-

tionally valid ordinance regardless of the motivations of the

councillors who adopted the ordinance. See City of Renton v .

Playtime Theatres, Inc., 475 U.S. 4 1 , 47-48 (1986); United States

v . O’Brien, 391 U.S. 3 6 7 , 382-86 (1968); South Carolina Educ. Ass’n v . Campbell, 883 F.2d 1251, 1258 (4th Cir. 1989); Fraternal

Order of Police Hobart Lodge N o . 1 2 1 , Inc. v . City of Hobart, 864

F.2d 5 5 1 , 555 (7th Cir. 1988). I now reconsider that decision in

light of Scott-Harris v . City of Fall River, nos. 95-1950, 95-

1951, 95-1952, 95-2100, 1997 WL 9102, at *8 (1st Cir. Jan. 1 5 ,

1997) (“In cases like this one, implicating the exercise of First

Amendment rights, liability under section 1983 can attach to the

passage of a facially benign law only if one peers beneath the

textual facade and concludes that the legislative body acted out

of a constitutionally impermissible motive.”). Despite my reconsideration, I conclude that S t . Louis’s

§ 1983 count against Portsmouth cannot be maintained, because S t .

Louis has failed to produce sufficient evidence from which a fact

finder could infer that more than one member of the Portsmouth

City Council acted with a constitutionally impermissible motive.

See id. at *12 (finding evidence that two of six councillors on a

2 nine person council voted to discharge plaintiff for impermis- sible motives insufficient to establish municipal liability). The undisputed facts are that Councillor McMaster made a motion to instruct the city attorney to draft an ordinance to ban hard-core pornography, and the motion passed unanimously on April 1 2 , 1993. One week later, the council was advised by the city attorney that an outright ban on adult establishments would have significant First Amendment implications. The council then discussed a proposal to table council action related to pornography until the council met privately with the city attorney to examine the constitutional implications in detail. During these discussions, Councillor Wagner made numerous statements from which a jury could reasonably infer that his vote for the less restrictive October 3rd ordinance was based on impermissible motives. Specifically, Wagner noted his opinion that the council should do whatever it takes to shut S t . Louis’s store down, despite any pronouncements made by the United States Supreme Court to the contrary.

None of the other council members joined Wagner in making statements that demonstrated animus toward S t . Louis’s consti- tutional rights, and the mere discussion of the restrictive proposal to ban all adult establishments does not reasonably give

3 rise to an inference of such animus in light of the council’s

later decision to reject an outright ban of pornography in favor

of the less restrictive ordinance that was enacted in October

1993. Accordingly, I decline to vacate my decision dismissing

S t . Louis’s § 1983 claim against the City of Portsmouth.

SO ORDERED.

Paul Barbadoro United States District Court

March 3 1 , 1997

cc: Brian T . Stern, Esq. Donald E . Gardner, Esq. William G. Scott, Esq.