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Horina v. City of Granite City

August 7, 2008


Appeals from the United States District Court for the Southern District of Illinois. No. 05 C 79-Michael J. Reagan, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.


Before MANION, KANNE, and TINDER, Circuit Judges.

Donald Horina filed a civil-rights action against the City of Granite City, see 42 U.S.C. § 1983, alleging that certain provisions of Ordinance No. 7861-the City's regulation on the manner in which individuals can distribute handbills in public-violated his First Amendment right to distribute religious literature. The district court, however, determined that the entire Ordinance is unconstitutional because the City produced no evidence showing that any restrictions on handbilling were needed to further a substantial government interest. The court further awarded Horina $2,772.00 in compensatory damages, and $62,702.02 in attorneys' fees and costs. We affirm the district court's judgment that Ordinance No. 7861 is unconstitutional. However, we reverse the district court's judgment awarding Horina compensatory damages, and remand this matter so the district court can revisit the issue. And following the parties' stipulation, we order the district court to modify the amount of attorneys' fees and costs due to Horina to $43,622.02.


The facts are undisputed. Horina is a retired teacher from St. Charles, Missouri. As part of what he believes to be his calling as a Christian to tell others about their need to be "born again," Horina regularly traveled across the Mississippi River to Granite City, Illinois, to distribute pro-life literature and Gospel tracts-small pamphlets that include Bible verses and short interpretations. Although he distributed the literature around various areas in the City, he regularly frequented the sidewalk in front of the Hope Clinic for Women, an outpatient surgical treatment center that provides abortions.

Horina would regularly place his literature on the windshields of cars parked on the city streets adjacent to the Hope Clinic, much to the chagrin of at least one individual: Nathan Lang, a security guard at the clinic. After Horina placed Gospel tracts on Lang's car on two separate occasions, Lang confronted Horina and asked him to stop placing the tracts on his car. But despite the request, in July 2003 Lang watched from afar as Horina slid a Gospel tract through the open driver's side window of his car.

In response, Lang contacted the Granite City Police Department, which, in turn, cited Horina for violating the City's ordinance prohibiting the "indiscriminate" distribution of "cards, circulars, handbills, samples of merchandise or any advertising matter whatsoever on any public street or sidewalk". However, the City later altered the charge to a violation of the City's trespass ordinance. See Granite City, Ill., Municipal Code tit. IX, chs. 9.60.020(D), 9.63.010. Horina pled guilty to the violation as amended, and was levied a $100 fine.

Nearly two years after Horina paid his fine he filed suit against Granite City, alleging that the City's ordinance prohibiting "indiscriminate" handbilling violated his rights under the First and Fourteenth Amendments to engage in protected speech-specifically, the distribution of religious literature. He asked the district court to enjoin the City from enforcing the ordinance and to award him monetary damages "to compensate" him "for the violation of his civil rights." The district court granted Horina's request for an injunction-a result that spurred the City to repeal its prohibition on "indiscriminate" handbilling, and to replace it with a revised regulation, Ordinance No. 7861.

Much like Granite City's earlier restriction, Ordinance No. 7861 defined "handbill" to include "any leaflet, pamphlet, brochure, notice, handout, circular, card, photograph, drawing, or advertisement printed on paper or on cardboard." However, Ordinance No. 7861 replaced the broad ban on "indiscriminate" handbilling with six separate regulations, each specifying when and how an individual could distribute literature. For instance, § 2(b) of the Ordinance stated that "[n]o person shall deposit or throw any handbill in or upon any vehicle." Section 2(c) of the Ordinance similarly provided: "No person shall deposit, place, or throw any handbill upon any private premises which are temporarily or continuously unoccupied." Any individual who was caught handbilling outside of the Ordinance's parameters would be subject to a fine "no less than $25 and up to $500." As the City explained in the Ordinance's preamble, such restrictions were necessary to protect the City's residents' "desire to be free from unwanted intrusion, trespass, harassment, and litter."

Shortly after Granite City enacted Ordinance No. 7861, Horina amended his motion for a preliminary injunction against the ban on "indiscriminate" handbilling to include the newly enacted Ordinance. In his motion, Horina asserted that § 2(b) and § 2(c) were facially unconstitutional because they were unreasonable restrictions on the time, place, and manner in which he could place handbills on automobile windshields and unoccupied homes. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Weinberg v. City of Chi., 310 F.3d 1029, 1036-37 (7th Cir. 2002). Specifically, Horina asserted that the City could not show that § 2(b)'s and § 2(c)'s restrictions served a substantial government interest because there was no proof that handbilling caused the social ills that the City claimed it had an interest in preventing-"intrusion, trespass, harassment, and litter." The district judge, Michael Reagan, pressed the City on this issue at the hearing on Horina's amended motion, and asked the City if it had any evidence "of an empirical nature to support this ordinance other than to assume [that] there is going to be intrusion . . . [and] litter." The City, however, responded that it had not completed "any specific studies with regard to the correlation between handbilling and intrusion, trespass, harassment, and litter," and that it was, in fact, unnecessary for the City to produce evidence establishing a correlation between handbilling and those problems.

The court took Horina's amended preliminary-injunction motion under advisement. But before Judge Reagan rendered a ruling, Horina filed a motion for a judgment on the pleadings, see Fed. R. Civ. P. 12(c), largely reasserting the arguments he had made in his amended preliminary-injunction motion, and asking the district court to enjoin Granite City from enforcing § 2(b) and § 2(c) permanently on the ground that the provisions were unconstitutional. In response, the City repeated that Ordinance No. 7861's restrictions were necessary "to assure the citizens of Granite City the desire to be free of unwanted intrusion, trespass, harassment, and litter," but yet again pointed to no evidence showing that handbilling caused those problems. Apparently concerned with the City's lack of proffered evidence justifying the Ordinance, Judge Reagan held a status conference during which he again asked the City whether it would introduce evidence showing that handbilling caused intrusion, trespass, harassment, or litter. The City, however, responded that it would not.

The district court granted Horina's motion for judgment on the pleadings, but went beyond the relief that he requested. The court did not permanently enjoin Granite City from enforcing only § 2(b) and § 2(c), as Horina requested; instead, the court permanently enjoined the City from enforcing Ordinance No. 7861 in its entirety. The court's expansive relief was based on its determination that the City failed to satisfy its burden of producing evidence showing that handbilling "constitutes or in any way results in 'unwanted intrusion, trespass, harassment, [or] litter' " in the City. The court pointed out that the City failed to proffer any "empirical studies, testimony, police records, reported injuries, or anything else"; that the City did not "even allege that such evidence exists"; and that the City offered only "'mere conjecture'" in an attempt to establish the Ordinance's justifications. And because the City could not show that the entire Ordinance served a substantial government interest, the court concluded, the Ordinance, as a whole, was an unreasonable restriction on the time, place, and manner in which individuals could handbill. Judge Reagan therefore declared the Ordinance unconstitutional on its face, and permanently enjoined the City from enforcing it.

Armed with the district court's judgment, Horina sought $5,000.00 in compensatory damages from Granite City to account for the "humiliation, emotional distress, and loss of First Amendment rights" that he endured due to the City's unconstitutional handbilling restrictions. The district court thus scheduled a bench trial solely on the issue of damages. Horina was the only witness to testify at the trial, but his testimony regarding the injuries he suffered was framed only in the most general terms and was often contradictory. For instance, Horina testified that, for about one year after his citation for trespass, he avoided the City altogether and suffered personal humiliation as a result. But Horina also admitted that he continued to distribute Gospel tracts in other cities, and that he eventually returned to the City to distribute his tracts once or twice a week. Horina further claimed that, because of the City's restrictions, he feared that he would be cited for distributing his tracts. Horina also acknowledged, however, that in earlier court proceedings related to his challenge to the City's ban on "indiscriminate" handbilling, the City's Chief of Police stated that Horina would not be cited for his activities, and that in response, Horina "felt that there was less of a chance of getting arrested." Indeed, Horina admitted, other than his trespass citation, he was not arrested for distributing his tracts, or even asked by City authorities to limit his activities. Horina also testified about the out-of-pocket expenses he incurred while challenging the City's restrictions. In particular, Horina stated that he appeared in court "six to eight times," and that during each of those trips he spent "[u]nder $10" for meals. However, Horina also stated that he had no receipts from those purchases, and provided no other information regarding his expenses related to his trips to court.

The district court issued a post-trial order, in which it awarded Horina $2,772.00 in compensatory damages. Specifically, the court awarded Horina $672.00 to account for his out-of-pocket expenses; that amount, the court stated, "should adequately cover approximately 8 court appearances (estimating one hour each at $25.00 per hour), round-trip travel of one hour per trip (again, at $25.00 per hour) mileage (480 miles at .40 per mile) and meals (eight at $10 each)." But the court also determined that Horina was not due the full $5,000.00 he requested for his "humiliation, emotional distress, and loss of First Amendment rights." In explaining the award, the court did not point to any particular portion of Horina's testimony detailing his injuries. Instead, the court stated that "the precise extent to which [Horina's] constitutional rights were chilled remains relatively unclear," and opined that "Horina has minimal evidence regarding his emotional distress and feelings of humiliation." Nevertheless, the court deemed what "minimal evidence" Horina introduced still warranted an award of $2,100.00. Shortly thereafter, the court also calculated that Horina was due $62,702.02 in attorneys' fees and costs, and issued a separate order awarding Horina that amount. See 42 U.S.C. § 1988; Fed. R. Civ. P. 54(d)(1).


Granite City makes three arguments on appeal. The City first contends that the district court incorrectly concluded that Ordinance No. 7861 is unconstitutional. The City further argues that the district court erroneously calculated the compensatory-damages award, and likewise incorrectly determined how much in attorneys' fees and costs Horina was due. We address each argument below.

A. The District Court's Determination that Ordinance No. 7861 is Unconstitutional

Before we address the merits of Granite City's challenge to the district court's decision striking down Ordinance No. 7861, we must first clarify this case's procedural posture. The City states that it appeals from the district court's grant of Horina's Rule 12(c) motion for judgment on the pleadings, an assertion with which Horina agrees. If the parties are correct, then we would review the district court's decision as we would a decision granting a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 623 (7th Cir. 2007); Guise v. BWM Mortgage, LLC, 377 F.3d 795, 798 (7th Cir. 2004). But in agreeing on this case's procedural posture, the parties ignore that the district court repeatedly asked the City to proffer evidence outside of its pleadings to show that handbilling caused litter, intrusion, trespass, and harassment. And in so seeking this additional evidence, the district court both treated Horina's Rule 12(c) motion as one for summary judgment, see Fed. R. Civ. P. 12(c)-(d); Omega Healthcare Investors, Inc. v. Res-Care, Inc., 475 F.3d 853, 856 n.3 (7th Cir. 2007), and put the parties on notice that it would treat the motion as one for summary judgment, see Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 684 (7th Cir. 1994) (stating that district court gives sufficient notice that it is treating Rule 12 motion as summary-judgment motion when "both parties had every reason to know that extraneous material was being considered"). We will thus review the district court's decision as if it granted Horina summary judgment-employing a de novo review, see Foskett v. Great Wolf Resorts, Inc., 518 F.3d 518, 522 (7th Cir. 2008), we will view the record in the light most favorable to Granite City, the non-moving party, and will examine whether there is a genuine issue of material fact that precludes judgment as a matter of law, see Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Cady v. Sheahan, 467 F.3d 1057, 1060-61 (7th Cir. 2006).

Traditionally, "handbilling" has referred to the practice of offering written material-be it handbills, pamphlets, tracts, advertisements, booklets, notices or other information-to individuals in public places for their acceptance or rejection. See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 809-10 (1984); Schneider v. New Jersey, 308 U.S. 147, 160-61 (1939). As the United States Supreme Court recognized nearly 70 years ago in the its decision Lovell v. Griffin, handbilling is both a method of communication that has a long and venerable history that predates the birth of this nation, and is a form of speech that is protected under the First and Fourteenth Amendments. See 303 U.S. 444, 452 (1938) (noting that handbills have "been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest"); see also Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943) ("The hand distribution of religious tracts is an age-old form of missionary evangelism-as old as the history of printing presses."). And in the time since the Supreme Court decided Lovell, federal courts have invalidated bans on distributing literature on public streets, see, e.g., United States v. Grace, 461 U.S. 171, 183-84 (1983); Schneider, 308 U.S. at 163-64; Weinberg, 310 F.3d at 1036-40, restrictions on individuals' rights to engage in door-to-door handbilling, see, e.g., Martin v. City of Struthers, 319 U.S. 141, 149 (1943); Watseka v. Ill. Public Action Council, 796 F.2d 1547, 1558 (7th Cir. 1986), and licensing requirements for those who wished to distribute their handbills door-to-door, see Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 168-69 (2002); Lovell, 303 U.S. at 451.

But as with all forms of protected speech, the right to handbill is not absolute, see Taxpayers for Vincent, 466 U.S. at 809-10, and federal courts have determined that governments may enact reasonable restrictions on handbilling that are also consistent with the First Amendment. Specifically, so long as the restrictions are "content neutral"-that is, unrelated to the content of the speech expressed in the handbills-governments may regulate the time, place, and manner in which the activity of handbilling itself occurs. See Weinberg, 310 F.3d at 1036-37. And under this "time, place, and manner analysis," such restrictions can survive scrutiny only if the government can show that they (1) serve a substantial government interest; (2) are narrowly tailored to advance that ...

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