United States District Court, C.D. Illinois, Rock Island Division
SARA DARROW, District Judge.
Plaintiff Stephen Johnson claims Defendant Rock Island Police Officers threatened him with arrest based on his public preaching in violation of the First, Fourth, and Fourteenth Amendments to the United States Constitution as well as the Speech and Religion Clauses of the Illinois Constitution. In an eight-count Complaint, Johnson sues the Officers and the City of Rock Island seeking injunctive, declaratory, and monetary relief. Second Am. Compl., ECF No. 75. Defendants have moved for summary judgment on several grounds. Defs.' Mot. Summ. J., ECF No. 78.
Plaintiff's Motion to Supplement his Response to Motion for Summary Judgment, ECF No. 86, is GRANTED. Plaintiff's Motion to Consider the Evidence Tendered in Open Court, ECF No. 87, is MOOT because, as the motion acknowledges, a copy of the recording at issue was already admitted into evidence in the hearing of March 5, 2013. Plaintiff's Motion to Strike Reply to Response to Motion for Summary Judgment, ECF No. 88, is DENIED because Defendants do not dispute the admissibility of the recording of the April 26, 2012 conversation tendered in the March 5, 2013 hearing, see Defs.' Resp. Opp. Mot. Strike 2, ECF No. 90; further, the portions of Defendants' Reply that Plaintiff seeks to strike are independently supported by references to the factual record. For the following reasons, Defendants' Motion for Summary Judgment, ECF No. 78, is GRANTED.
Johnson, a Colorado resident, has preached the Christian message on street corners around the country. Oct. 28, 2011 Hr'g Tr. 5:1-6:7. Johnson is a former Moline, Illinois resident and still has grandchildren living in the area whom he occasionally visits. Id. On at least three occasions since 2011, Johnson preached and distributed religious literature in downtown Rock Island. This case arises out of the first two of those episodes.
I. June 11, 2011
On the afternoon of June 11, 2011, Johnson preached his Christian message and distributed literature on the corner of 2nd Avenue and 17th Street in the commercial district of downtown Rock Island. Id. 7:23-9:8. He began prior to the start of the Gumbo Ya Ya festival, which was held there later that afternoon. He stood atop a bench next to a short retaining wall or planter at the corner. Id. 23:13-24:3. As a result of his positioning, Johnson claims he did not obstruct the sidewalk and was completely out of the flow of pedestrian traffic. Id. 25:9-25. He does not recall seeing any pedestrians enter or cross 17th Street to avoid passing him on the sidewalk. Id. 57:21-23.
Johnson said he only encountered a "few" people during his preaching that day. Id. 13:16. He said he spoke in a projected voice-as loud as his speaking voice could go without shouting or screaming, id. 68:23-69:2, and without bullhorn or other amplification-for about 15 to 20 minutes, reading from the Bible, explaining its message, and handing out Gospel tracts and Bibles, and then spoke briefly with some passersby. Id. 14:11-15:10. His message includes a warning that "the wages of sin is death and Hell" and that "God is a God of justice and that people will end up in Hell if you do not repent." Id. 19:20-20:2. According to Johnson, he did not "engage" with these passersby too extensively; some told him that he should stop and leave, and others encouraged and thanked him for preaching there. Id. 14:25-15:18. He saw approximately 20 people, he estimates, and the positive responses came from about five people, with the negative from about five other people. Id. 69:22-70:19.
After 30 to 45 minutes, Johnson said he rested, sitting on the retaining wall, reading the Bible, and waiting to see if anyone would approach him. Id. 20:17-24. While he was sitting there, Rock Island Police Ofc. Jonathan Cary drove up on 17th Street and stopped near Johnson. Id. 26:7-13. From the driver's seat of the car, Johnson claims Officer Cary motioned with his finger that Johnson should approach. Johnson walked over and spoke with him through the open passenger-side window. Id. 26:19-27:5. While they spoke, Officer Kris Kulhman arrived in a separate vehicle, parked, exited, and came to stand behind Johnson, according to Johnson. Id. 27:6-11.
According to Johnson's testimony, the conversation proceeded as follows: Officer Cary asked him what he was doing, and Johnson said he was preaching. Officer Cary asked Johnson to explain his activity in greater detail, and Johnson did. Id. 27:14-18. Officer Cary asked at one point if Johnson ever used the term, "Hell, " and Johnson said he did. Id. 31:3-7. Officer Cary said, "Well, you cannot do that here." Id. 27:20-21. Johnson asked what he was doing that was impermissible; he says he repeatedly questioned Officer Cary as to what specific activities he would have to engage in to violate the law at issue, the Illinois Disorderly Conduct Statute, 720 ILCS 5/26-1. Officer Cary said Johnson (1) could not raise his voice, (2) could not "offend" anyone, and (3) could not "say anything that would disturb anybody in any way." Id. 27:22-29:20. Johnson pressed Officer Cary on what "disturb" meant, and Officer Cary said the term came from the city ordinance at issue,  which Johnson could look up online. Id. 29:23-31:18. Johnson told Officer Cary that he intended to return to preach in Rock Island, and Officer Cary responded, "If you get up there and do that again, you will be arrested." Id. 32:15-20. The Officers never told Johnson to leave, id. 30:8-13, and when Johnson told Officer Cary that he would leave, Officer Cary said Johnson could stay and hand out literature but "just can't say anything." Id. 33:1-9.
According to the Officers, the encounter transpired in this way: Officer Cary was dispatched to the 2nd Avenue and 17th Street intersection around 4:45 p.m. in response to a report of a "disturbance, " and found Johnson sitting silently on a planter there. Id. 91:1-93:14; 94:4-6. At the hearing, Officer Cary could not recall the content of the "very casual" complaint call the Department received and did not remember what, if any, description he received of the conduct at issue. Officer Cary said it is his job to respond to calls even if they provide "minimal information, " and he went to the site that day "basically to do some information-gathering, fact-finding." 102:11-24. From the driver's seat of his car, Officer Cary told Johnson through the open passenger-side window that he was responding to a "disturbance" call and asked Johnson what he was doing, to which Johnson responded that he was "passing out tracts and preaching." Id. 94:4-10. Officer Cary told Johnson he could preach all he wanted, but also gave him some "guidelines:"
You can't prohibit people from passing. If they don't want to talk to you, they don't have to. You can't make them stay where they're at. I said, if they want to walk past you, you can't get in their way. I said, you can't get in their face and yell and scream to the point that it would alarm or disturb them.... I said, you can talk to people all you want. You can preach. You can hand out whatever you want. I said, just you can't alarm or disturb people to the point that they would be, you know, frightened.
Id. 94:23-95:7, 96:21-24. Cary said Johnson then asked him questions about what he could not legally do, and balked at Cary's advice-"he was offended that we would legislate him yelling and screaming in people's faces to the point where it would alarm and disturb them." Id. 95:10-20, 109:14-20. Johnson also said that "he should be able to wave his fist in people's faces and tell them that he's going to batter them and that is freedom of speech." Cary said he was describing the Illinois disorderly conduct and arrest statutes in responding to Johnson's questions. Id. 98:18-99:6.
According to Officer Cary, he merely told Johnson what he could not lawfully do; he never said Johnson "had been doing that or anything of that nature." Id. 98:21-24. Regarding any threat of arrest, "I told him he could be arrested if he alarmed or disturbed somebody. For that. Not for any actions he did prior to us arriving there." Id. 109:21-25. In response to Johnson's questioning, Officer Cary said he could not exhaustively explain every instance that would constitute "alarming and disturbing" conduct and that the standard was whether the conduct was "reasonable." Id. 110:1-14. They did not discuss the content of Johnson's message at all. Id. 104:2-5. Officer Cary never told Johnson he could not speak with people or pass out materials, and did not place him under arrest. See id. 96:14-97:12. Officer Cary did not at any point witness Johnson actually engaged in preaching or obstructing pedestrian traffic. Id. 99:16-20.
Officer Kuhlman arrived separately, in his own squad car, after Cary and Johnson's conversation had begun. Officer Kuhlman parked his car and came to stand, according to Officer Cary, next to and a little behind his passenger door. Id. 97:18-98:8. Johnson claims that this placed Officer Kuhlman behind his back as he spoke to Cary. Johnson said Officer Kuhlman appeared "very tight lipped" and "very angry, very flushed." Id. 35:21-36:1. "I felt very intimidated and threatened by him, " Johnson said. Id. 36:15-16. Despite his presence, there is no evidence that Kuhlman said anything. See id. 61:21-62:25. When the conversation began, Johnson testified, he was unsure whether he would resume preaching that day, but the encounter made him feel that the option to continue was taken away. Id. 71:24-72:12. He left the district immediately after the conversation ended. Id. 97:13-14.
Carl McClaskey, special events coordinator for the Downtown Rock Island Arts and Entertainment District, was working at the Gumbo Ya Ya festival that day. Id. 77:6-78:10. He recalls being called to the festival gate, near the 17th Street and 2nd Avenue intersection, around 4:30 or 4:45 p.m. to respond to "some sort of disturbance." Id. 81:9-23. From his location inside the festival gate, McClaskey said the disturbance was "a gentleman kind of waving his arm, holding a book" and speaking in a loud voice. Id. 82:6-14. McClaskey said he noticed that some people walking toward the gate were jaywalking in a path that avoided Johnson. Id. 83:1-5. However, McClaskey said he saw Johnson standing next to a planter set four to five feet back from sidewalk, and did not see Johnson block the sidewalk or otherwise obstruct pedestrian traffic. Id. 86:8-12; 87:6-13.
At the October 28, 2011 hearing, Johnson testified that he wanted to preach again in Rock Island, came to the area "every month or so, " and would preach every time he came if he knew he could not be arrested for it. Id. 37:3-25. Johnson said he returned to Rock Island "almost every month" between the June encounter and the October hearing, and did not preach on any occasion. Id. 67:3-10. When specifically asked whether he feared arrest if he preached again, Johnson's reply was, "I was told that if I did this again, I would be arrested."
Johnson filed his initial complaint on August 1, 2011. He named the City of Rock Island as sole defendant and sought damages, a declaration that Ordinance 10-21 was unconstitutional as applied to his preaching, and a temporary restraining order and preliminary injunction preventing the City from enforcing the Ordinance against him. Compl. 12-13, ECF No. 1. Following the October 28, 2011 hearing on Johnson's preliminary injunctive relief requests, Johnson amended his claims to encompass the Officers' alleged application of the Illinois Disorderly Conduct Statute. See Pl.'s Supp. Am. Mot. Pre. Inj., ECF No. 16-1.
II. April 26, 2012
Before a decision was rendered on his requests for prospective relief, Johnson preached at the corner of 18th Street and 2nd Avenue in downtown Rock Island around midday on April 26, 2012. Mar. 5, 2013 Hr'g Tr. 14:23-15:8. According to Johnson's testimony at an April 26, 2012 hearing, he proclaimed the Christian message for about 15 minutes from the sidewalk in a raised voice, addressing whomever happened to be on the street. Id. 15:10-17, 37:3-4. Most people were across the street from him, at a distance of maybe 100 or 120 feet, he estimates, with some in line to buy lunch from a food cart. Id. 18:8-21, 27:5-11. As before, Johnson said his preaching incorporated the word, "Hell, " in the context of Biblical language and his message that "everyone dies once and they face judgment." Id. 19:1-20:1. He testified that he has never threatened to cause death or bodily harm to any person in his audience. Id. 20:15-20. He then walked back toward his car, which was parked half a block away on 18th Street. Id. 15:10-21. After climbing in and preparing to drive off, Johnson said, he was approached by two police cars with their lights on. He said police-initially only two officers, he thought, joined by a third later-asked him to get out of his car, and a conversation ensued. Id. 15:22-16:5.
According to Officer Michael Crone, he was dispatched to the corner of 18th Street and 2nd Avenue in downtown Rock Island on April 26, 2012, in response to a complaint of a disturbance. Crone Dep. 5:17-20, ECF No. 79-5. Specifically, in Officer Crone's words, the complaint was that "[t]here was a subject in the District, cursing at people and telling them that they are going to die, and had a Bible in their hand." Id. 13:20-23. As Officer Crone was driving northbound on 18th Street, Officer Will Anderson pointed at Johnson on the side of the road and identified him as the subject. Id. 6:21-7:24. In response, Officer Crone turned on his lights, did a U-turn, and pulled up behind the pickup truck Johnson was climbing into. Id. 8:4-7. Johnson got out and approached Officer Crone and started the conversation. Id. 8:11-15. Officer Crone never saw Johnson preach and never spoke with the person who made the complaint. Id. 12:8-20.
Officer Douglas Elliott recalls being dispatched to 18th Street and 2nd Avenue that day along with Officer Dustin Miles to assist Officer Crone in responding to a disturbance complaint. Elliott Dep. 5:3-10. When they arrived, Officer Elliott said, Officer Crone was speaking with Johnson in the street. Id. 5:13-15. Johnson said he sometimes records his preaching, so he can examine it later, with a personal recorder attached to a small lapel microphone. Mar. 5, 2013 Hr'g Tr. 16:19-17:3. Johnson was recording his preaching that day, and claims he forgot to turn the recorder off; it was on and recording when he spoke with Officers Crone and Elliott. Id. 21:2-18, 29:24-30:3.
As heard by the Court, the recorded conversation proceeds, in pertinent part, as follows:
Johnson greets Officer Crone, who asks, "Are you causing a disturbance down here? [Johnson: "No."] Yelling, cussing, cursing, carrying your Bible around?" Johnson: "I am carrying my Bible; I would never curse." Officer Crone asks Johnson for identification, which he produces. Officer Crone: "Are you angry at somebody, or what?" Johnson: "I'm not angry." Officer Crone asks what Johnson was doing; he responds, "Preaching the Gospel." Officer Crone: "You scaring people? You can't scare people. You can't alarm and disturb people. You know that's against the law, don't you? [Johnson: "Is it really?"] You could go to jail for that." Johnson: "For scaring people?" ...