Shurtleff v. City of Bos.

337 F. Supp. 3d 66
CourtDistrict Court, District of Columbia
DecidedAugust 29, 2018
DocketCivil Action No. 18-cv-11417-DJC
StatusPublished
Cited by3 cases

This text of 337 F. Supp. 3d 66 (Shurtleff v. City of Bos.) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shurtleff v. City of Bos., 337 F. Supp. 3d 66 (D.D.C. 2018).

Opinion

Denise J. Casper, United States District Judge

I. Introduction

Plaintiffs Harold Shurtleff and Camp Constitution ("Plaintiffs") have moved for a preliminary injunction against Defendants, the City of Boston and Gregory T. Rooney, in his official capacity as Commissioner of the City of Boston Property Management Department (collectively, "Defendants" or "the City"). D. 7. Plaintiffs seek to enjoin the City from denying permission to the Plaintiffs to display "the Christian flag" on a City Hall flagpole in conjunction with their Constitution Day and Citizenship Day event on or around September 17, 2018. D. 7 at 2. For the reasons discussed below, Plaintiffs' motion for a preliminary injunction, D. 7, is DENIED.

*70II. Standard of Review

"A preliminary injunction is an 'extraordinary and drastic remedy.' " Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v. Geren, 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ). To obtain a preliminary injunction, the Court must consider: (1) the movant's likelihood of success on the merits; (2) the likelihood of the movant suffering irreparable harm; (3) the balance of equities; and (4) whether granting the injunction is in the public interest. Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013). Plaintiffs "bear[ ] the burden of establishing that these four factors weigh in [their] favor." Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006) ; see Rivera-Vega v. ConAgra Inc., 70 F.3d 153, 164 (1st Cir. 1995) (quoting Pye ex rel. NLRB v. Sullivan Bros. Printers, 38 F.3d 58, 63 (1994) ) (noting that when the relief sought by the moving party "is essentially the final relief sought, the likelihood of success should be strong") (emphasis in original) (internal quotation marks omitted).

III. Factual Background

The following facts, largely undisputed, are drawn from the complaint, D. 1, Plaintiffs' motion for a preliminary injunction, D. 7-8, and the City's opposition, D. 11. The City owns and manages three flagpoles located in front of the entrance to City Hall, in an area called City Hall Plaza. D. 11 at 2; D. 11-1 ¶ 5. The three poles are the same height, approximately 83 feet tall. D. 11 at 2. One pole regularly displays the flags of the United States and the National League of Families Prisoner of War/Missing in Action ("POW/MIA") flag. Id. A second pole flies the flag of the Commonwealth of Massachusetts. Id. The dispute in this case centers on the third flagpole, which displays the City of Boston flag except when replaced by another flag-usually at the request of a third-party. Id. Such a request is often made in conjunction with a proposed third-party event to take place at a location owned by the City, one of which is City Hall Plaza. Id. Examples of other flags that have been raised on the third flagpole are country flags, e.g., the flags of Brazil, Ethiopia, Portugal, Puerto Rico, the People's Republic of China and Cuba, and the flags of private organizations, including the Juneteenth flag recognizing the end of slavery, the LGBT rainbow pride flag, the pink transgender rights flag, and the Bunker Hill Association flag. D. 8 at 3; D. 11 at 2. As Plaintiffs allege, the flag of Portugal contains "dots inside the blue shields represent[ing] the five wounds of Christ when crucified" and "thirty dots that represents [sic] the coins Judas received for having betrayed Christ." D. 1 ¶ 36. The City of Boston flag includes the Boston seal's Latin inscription, which translates to "God be with us as he was with our fathers." D. 1 ¶ 41(a). As Plaintiffs note, the Bunker Hill Flag contains a red St. George's cross. D. 1 ¶ 41(b). Many religious groups, including Plaintiffs, have held events at City-owned properties in the past. D. 8 at 4; D. 11 at 3.1

To apply for a permit to raise a flag at City Hall and hold an event on a City-owned property, a party submits an application to the City. D. 11 at 3; D. 11-1 ¶ 13. The City has published guidelines on its website for applicants. D. 8 at 3; D. 11 at 3; D. 11-1 ¶ 13. The guidelines state that an application may be denied if the event *71involves illegal or dangerous activities or if it conflicts with scheduled events. D. 8 at 3-4; D. 11 at 3. In addition, an application may be denied if the applicant lacks an insurance certification, lies on their application, has a history of damaging city property or failing to pay city fees or fails to comply with other administrative requirements. D. 8 at 4; D. 11 at 3. After a party has submitted an application, the City reviews the request to ensure it complies with all guidelines. D. 1-8 at 2; D. 11 at 3; D.11-1 ¶ 15. The Commissioner of Property Management reviews applications for the City flagpole to ensure flag requests are "consistent with the City's message, policies, and practices." D. 11 at 3; D. 11-1 ¶¶ 16-17. The City does not have a written policy regarding the content of flags to be raised. D. 8 at 4.

On July 28, 2017, Plaintiff Shurtleff emailed the City on behalf of his organization, Camp Constitution, requesting to "raise the Christian flag on City Hall Plaza," accompanied by "short speeches by some local clergy focusing on Boston's history" on one of several dates in September 2017. D. 1-1. The email included a photograph of the Christian flag, D. 1-1, which "displays a red Latin cross against a blue square bordered on three sides by a white field." D. 1-4. On September 5, 2017, the City denied Shurtleff's request to raise the Christian flag without explanation. D. 1-3. Shurtleff asked for the "official reason" for denying the permit. Id. Defendant Rooney wrote to Shurtleff that "[t]he City of Boston maintains a policy and practice of respectfully refraining from flying non-secular flags on the City Hall flagpoles." D. 1-4.

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Related

Shurtleff v. Boston
596 U.S. 243 (Supreme Court, 2022)
Shurtleff v. City of Boston
986 F.3d 78 (First Circuit, 2021)

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Bluebook (online)
337 F. Supp. 3d 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shurtleff-v-city-of-bos-dcd-2018.