On April 3, 2001, Plaintiff Robert A. Neinast file a pro se Complaint against Defendants Board of Trustees of the Columbus Metropolitan Library ("the Library"), Larry D. Black, Executive Director of the Library, and Vonzell Johnson, assistant security director of the Library (hereafter collectively referred to as "Defendants"). Plaintiff's Complaint asserts three counts under 28 U.S.C. §1983:
Count One asserts that the Library policy requiring patrons to wear shoes violates Neinast's rights of free speech under the federal and Ohio Constitutions;
Count Two asserts that the same policy violates his free speech and substantive due process liberty interest in personal appearance under both the federal and Ohio constitutions;
Although the substance of Count Three is unclear, Plaintiff appears to be challenging the procedural underpinnings of the policy or claiming that the regulation violates principles of equal protection (again, under both the federal and state constitutions).
All of Plaintiff's claims, however, fail as a matter of law because there is no constitutional right to go barefoot in public buildings. In addition, because the Library may under state law delegate to its administrative agents the authority to promulgate procedures for the use of its facilities, Plaintiff's procedural claim also fails.
Moreover, even if the unprecedented and undefined right to go barefoot exists (and it does not), the individual Defendants cannot be monetarily liable. The doctrine of qualified immunity provides that officials are monetarily only when that act with a clear understanding that their actions violate a well-defined constitutional right. Not only are the rights now asserted by Plaintiff nonexistent, but Mr. Black took the extraordinary measure of obtaining an opinion from the Franklin County Prosecutor's office when confronted with Plaintiff's claims, and was assured that the Library's policy was constitutional. The individual Defendants are thus entitled to qualified immunity.
Plaintiff claims that he goes barefoot whenever practicable in order to spread awareness that it is legal and enjoyable to walk without shoes. Amended Complaint, ¶¶5-6. In a series of incidents beginning on September 12, 1997 and culminating on March 2, 2001, Plaintiff was asked to leave the Library's Main Branch for refusing to obey a regulation requiring shoes on Library premises. Amended Complaint, ¶¶7-9. This regulation is contained in the Eviction Procedure of the Library. Amended Complaint, ¶¶13; Affidavit of Larry D. Black, Exh. 2 (hereafter, "Black Affid.") (attached hereto as Exhibit A). Mr. Black, the Library's Executive Director, approved and promulgated the procedure in order to protect the safety of Library patrons from hazards within the Library and to protect the Library from possible tort claims by these individuals. Black Affid., ¶4. He promulgated this procedure under authority granted him by the Library's Board of Trustees. Under the Board of Trustees' Library Organization Policy, approved by the Board of Trustees in 1985, the Executive Director is charged with "determining internal policies and procedures [for] . . . public relations, relations with the community and governmental agencies, and the handling of all other matters involved with the operation of the library system." Q> Black Affid., ¶2, Exh. 1. See also Amended Complaint, ¶¶13, 20.
After Plaintiff was asked to leave the Library, he complained in written letters to Mr. Black and various members of the Board of Trustees. Amended Complaint, ¶¶19-20. In response, Mr. Swaddling, then-President of the Board, responded that the Board had authorized the procedure, and the policy requiring shoes, through its duly-appointed director. Amended Complaint, ¶20; Black Affid. ¶9. Plaintiff was still not satisfied. Mr. Black then asked the Franklin County Prosecutor's Office whether the policy was legal. Amended Complaint, ¶21; Black Affid., ¶10. The Prosecutor's office issued an opinion concluding unequivocally that the regulation was constitutional. Black Affid., Exh. 4.
Plaintiff claims that he walks barefoot to spread awareness that this conduct is legal and enjoyable. Amended Complaint, ¶6. He thus intimates that his choice to walk barefoot is protected by the First Amendment.1 No such protection exists under the First Amendment. Choice of clothing or appearance are not forms of protected speech, particularly where, as here, the viewer cannot readily distinguish the message the actor seeks to convey.
Conduct reflecting "symbolic speech" is a spectrum, with "pure speech" on one end and "pure conduct" on the other. The government's power to regulate such speech is at its height when the conduct in question most resembles "pure conduct," and is at its nadir when it most resembles "pure speech." See Texas v. Johnson, 491 U.S. 397, 404 (1989); see generally Tinker v. Des Moines Sch. Dist., 393 U.S. 503 (1969). Conduct may qualify as "protected speech" only when there is (1) and intent to convey a particularized message, and (2) when, given the surrounded circumstances, "the likelihood is great that the message [will] be understood." Texas v. Johnson, 491 U.S. at 404.
Plaintiff's vague message does not meet this test. It bears no resemblance to the specific political, religious, or ideological message that courts have identified as "constitutionally" particularized. Tinker, 393 U.S. at n.4 (wearing a black armband to protest the Vietnam war); Street v. New York, 394 U.S. 576 (1969) (burning an American Flag to highlight a speech denouncing the government's failure to protect a civil rights leader); Russo v. Central Sch. Dist., 469 F.2d 623 (2d Cir. 1972) (quietly refusing to recite the Pledge of Allegiance in protest of current conditions in America).
Indeed, Plaintiff's message amounts to little more than an assertion that he is barefoot, and that it is not illegal. See East Hartford Education Ass'n v. East Hartford Bd. of Educ., 562 F.2d 856, 858-59 (2d Cir. 1977) (on rehearing en banc) ("vague and unfocused" Q> claims that the plaintiff was communicating his "comprehensive view of life and society" Q> by wearing particular clothes are insufficient); see also Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303, 1307, fn. 4 (8th Cir. 1977) (student's tattoo was simply a form of self-expression, not speech protected by the First Amendment, where tattoo was not intended to communicate any religious, political, or other particularized message); South Florida Free Beeches, Inc. v. City of Miami, 734 F.2d 608 (11th Cir. 1984) (no First Amendment right to refrain from wearing clothing, because decision to go nude is not "speech"); Jackson v. Dorrier, 424 F.2d 213, 217 (6th Cir. 1970) (hair length is not an expression within the concept of free speech); Bivens v. Albuquerque Pub. Sch., 899 F.Supp 556, 560-61 (D.N.M. 1995) (wearing "saggy" pants is not speech protected by the First Amendment); Oleson v. Bd. of Educ., 676 F.Supp. 820, 822 (N.D. Ill. 1987) (in order to claim First Amendment protection a student must demonstrate that his clothing was intended to convey a message).
These cases point, implicitly, to the logical dilemma underlying Plaintiff's asserted message: if the message that specific conduct is enjoyable and legal is enough to present a "particularlized message," nearly all conduct would be converted into speech protected by the First Amendment. Most behaviors bear the implicit message that they are legal or enjoyable. The right to free speech has never been extended to encompass the vague message that particular conduct is legal, or even desirable, unrelated to any other particularized philosophical, religious, or political message. See South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608, 610 (11th Cir. 1984) (plaintiffs who argued that their nude sunbathing was protected as a form of advocacy did not possess a constitutional right to go without clothes: "[The plaintiffs] remain able to advocate the benefits of nude sunbathing, albeit while fully dressed." Q>). In short, although the First Amendment covers a wide range of symbolic conduct, it cannot safeguard a limitless variety of behavior. See United States v. O'Brien, 391 U.S. 367, 376 (1968) (burning draft cards is not "speech," even when done to signal opposition to the draft).
Even assuming that Plaintiff's vague message is "particularized" in the constitutional sense, Plaintiff must demonstrate "a great likelihood" that observers would understand the message that his bare feet convey. Simply put, Plaintiff does not allege, and he cannot present evidence that, the mere act of walking into the Library conveys to his intended audience the message that going barefoot is legal and desirable. Indeed, it is difficult to imagine that observers would understand anything from Plaintiff's conduct beyond the fact that he is not wearing shoes. Like the plaintiffs in South Florida Free Beaches, Plaintiff is an advocate for a particular type of conduct. His advocacy, however, does not convert his conduct into speech.
Ultimately, Plaintiff's decision to refrain from wearing shoes is a choice which falls well on the "conduct" side of the First Amendment spectrum. As such, it is not constitutionally protected speech. Defendants are entitled to judgment as a matter of law on all of Plaintiff's First Amendment claims.
Plaintiff's contention that the regulation violates his Fourteenth Amendment "liberty interest" in refraining from wearing shoes is equally unavailing.2 Although some federal courts have held that an individual's choice of personal dress or appearance is a liberty interest protected under the Due Process Clause, the Supreme Court has only assumed, while explicitly refraining from holding, that such a right exists. See Kelley v. Johnson, 425 U.S. 238, 244 (1976) ("Whether the citizenry at large has some sort of 'liberty' interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Courts cases offer little, if any, guidance. We can, nevertheless, assume an affirmative answer for purposes of deciding this case." Q>) (emphasis added) The Sixth Circuit has not offered an opinion on this issue.
But even if such a right exists, it is clearly not a fundamental right. See Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, n.1 (5th Cir. 1982) (right to choose personal appearance (hairstyle) is not "a fundamental right whose deprivation will draw strict scrutiny" Q>); Karr v. Schmidt, 460 F.2d 609, 615 (5th Cir. 1972) (individual liberties can be ranked in a spectrum of importance; at one end are the great liberties such as speech, religion, and martial privacy; at the other are lesser liberties such as the liberty at stake in personal appearance cases"). The right to go barefoot in a public building is clearly of this lesser ilk.
Thus, regulations which abridge the "right" to freedom of personal appearance are subject only to rational basis review. As a result, in order to effectively challenge the policy requiring shoes, Plaintiff must demonstrate that the policy requiring shoes is not rationally related to a legitimate governmental interest. See id.; Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) ("When conducting rational basis review the court will not overturn . . . government action unless [it] is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government's actions were irrational."); Peoples Rights Org. v. City of Columbus, 152 F.3d 522, 532 (6th Cir. 1988) ("The rational basis test requires the court to ensure that the government has employed rational means to further its legitimate interest."). Plaintiff cannot remotely meet this burden in the instant case.
The policy requiring shoes serves a substantial governmental interest: it protects the health and safety of Library patrons and protects the fiscal integrity of the Library. See Black Affid. ¶5. The government's interest in safeguarding the safety of its constituents is well-recognized. See Curto v. Harper Woods, 954 F.2d 1237 (6th Cir. 1992) (recognizing a "governmental interest in the safety and welfare of the citizenry, in addition to . . . aesthetic needs . . ." Q>); Gfell v. Rickelman, 441 F.2d 444, 447 (6th Cir. 1971) (regulation of personal appearance is permissible for the "promotion of safety" Q>). The only court to have considered this specific issue found that a policy requiring shoes and socks advanced a legitimate governmental interest: "prevent[ing] slips [and] foot injuries." Oladipupo v. Austin, 104 F.Supp. 2d 626 (W.D.La. 2000).
The Library's facilities are visited by thousands of individual each day, none of them directly supervised by Library staff. The floors and hallways of Library facilities may hold any number of hazards. The Library and its employees cannot guarantee that facilities will be completely free of hazards created by other patrons, by the staff, or by the facility itself. The requirement that Library patrons wear shoes is without question a rational and reasonable means to effectuate the Library's interest in protecting the safety of patrons and preventing injury.
The same is true with respect to the Library's interest in protecting its fiscal integrity - hand in hand with the Library's safety concern is its interest in avoiding tort liability for injuries caused to barefoot patrons. Black Affid., ¶6. Individuals injured in ways that shoes might have prevented frequently bring suit against businesses and charitable organizations. See Felder v. Victory Fitness Ctr., 1998 Ohio App. LEXIS 3328, *1 (Franklin Cty. 1999) (attached hereto as Exhibit B) (invitee sued owner of premises when she slipped in a shower because her feet were bare); Pressler v. Calhoun, 1994 Ohio App. LEXIS 4027, *1 (Warren Cty. 1994) (attached hereto as Exhibit C) (invitee sued owner of premises when a stake punctured his bare foot); Bisnett v. Mowder, 560 P.2d 68, 68 (Ariz. 1977) (owner of premises may be liable for conditions which caused area to be more hazardous to those with bare feet); Lamb v. Redemptorist Father of Georgia, Inc., 142 S.E. 2d 278, 283 (Ga. App. 1965) (Charitable organization sued by bare-foot patron who cut his feet).
In Ohio, public libraries are explicitly not protected by sovereign immunity from these types of tort claims (or from the concomitant attorneys' feed that arise as a result of such claims). See O.R.C. §2744.02 (political subdivisions may be liable for damages causes by negligence in the performance of "proprietary" acts); Mathis v. Cleveland Public Library, 9 Ohio St. 3d 199, 201 (1984) ("[A] public library will be held liable, the same as private corporations and persons, for the negligence of its employees and agents in the performance of their activities.").
As a result, in the absence of a policy requiring shoes, the Library could easily be subject to claims for such injuries and their attendant litigation costs. Safeguarding the Library's fiscal integrity is a legitimate governmental interest. See Grange Mutual Casualty Co. v. Columbus, 49 Ohio App. 3d 50, 54 (Franklin Cty 1989) (holding that protection of the fiscal integrity of Ohio's political subdivisions is a legitimate governmental interest, particularly in the face of abrogation of sovereign immunity); Hitch v. Ohio Dep't of Mental Health, 114 Ohio App. 3d 229 (Franklin Cty. 1996) (same); Van Der Veer v. Ohio DOT, 113 Ohio App. 3d 60 (Franklin Cty. 1996) (same).
The Library's policy of requiring shoes is rationally and reasonably related to both of these legitimate and substantial governmental interests. Library patrons wearing shoes are less likely to harm their feet by stepping on, or in, floor-bound hazards than are patrons who go barefoot. As a result, the policy requiring shoes effectively serves the twin aims of increasing patron safety and decreasing the Library's potential liability. Because Plaintiff cannot show that the policy is not rationally related to these interests, the Defendants are entitled to judgment as a matter of law on Plaintiff's "liberty" interest claim.
Plaintiff's Third Cause of Action, though ambiguous, seems to assert two different claims: 1) that the policy requiring shoes is procedurally invalid, and 2) that the policy violates Plaintiff's right to equal protection. Both claims fail as a matter of law.
Plaintiff's attack on the procedural underpinnings of the policy requiring shoes is summarized in Paragraph 35 of his Complaint: "[t]he Board has no authority to delegate its rulemaking authority to Defendant Black. . . ." Q>).
No support exists, however, for Plaintiff's claim that the Library cannot delegate to its director the ability to create procedures for the proper administration of the Library. Indeed, courts frequently uphold the delegation of statutorily-granted or legislative powers in more generalized situations. Ohio law is well-settled that "[i]n the operation of any public administrative body, subdelegation of authority, impliedly or expressly, exists - and must exist to some degree." Bell v. Bd. of Trustees, 34 Ohio St. 2d 70, 74 (1973); Vasas v. Cuyahoga County Hospital, 1979 Ohio App. LEXIS 9081, *3 (Lorain Cty. 1979) (attached hereto as Exhibit D) (the Board of Trustees of a municipal hospital may delegate its power to remove employees to another person, in the interest of the "efficient operation of the Board and the facilities over which it presides" Q>).
Further, "[legislative bodes] can confer administrative powers . . . to make rules and regulations to carry out the legislative intent," even in the absence of specific guidelines from the legislative body. Weber v. Board of Health, 148 Ohio St. 389 (1947). In Matz v. J.L. Curtis Cartage Co., 132 Ohio St. 271, syllabus, paragraph 7 (1937), the Ohio Supreme Court held that
[W]hen the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional . . . without restrictions and limitations. Q>).
This is just such a case. While the Board of Trustees has established Patron Regulations that regulate specific and enduring problems impacting core functions of the Library and its use by Library patrons, it has nonetheless made the decisions to leave the day-to-day business of establishing internal procedures for health and safety to Mr. Black. See Black Affid. Exh. 3.
Under Ohio law, the Board has the authority to so delegate and thus Plaintiff's procedural claim fails as a matter of law.
To the extent that Plaintiff's Third Cause of Action attempts to assert a violation of equal protection under the Ohio and federal constitutions,3 it is also without merit. In order to establish an equal protection violation, a plaintiff must (1) plead and prove that he is a member of a constitutionally-protected group, or (2) plead and prove that the challenged regulation is not supported by a rational basis. See Stevens v. Trumbull County Sheriff's Dep't, 63 F.Supp. 2d 851, 856 (N.D. Ohio 1999); McDonald's Corp. v. City of Norton Shores, 102 F. Supp. 2d 431, 438 (W.D. Mich. 2000).
Plaintiff does not contend that the Library procedure makes a distinction based on a constitutionally-protected classification (i.e. sex). As a result, Plaintiff is a class of one. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff thus must show that the government treated him differently from others similarly situated and that there was "no rational basis for the difference in treatment." Id. In other words, as with Plaintiff's liberty interest claim, Plaintiff must prove that the Library policy is not rationally related to a legitimate government interest. As explained previously, Plaintiff cannot meet this burden. Defendants are thus entitled to summary judgment as a matter of law on this claim as well.
Plaintiff has no constitutional right to go barefoot. Nonetheless, Plaintiff asserts the policy at issue violates his First Amendment rights because it denies him access to speech.4 Plaintiff, however, is incorrect. In the first instance, as a limited designated public forum, the Library may limit the use of its facilities to that conduct which is consistent with its purpose. It has done so here. As important, the Library's policy is a reasonable time, place and manner regulation.
No question exists that the Library is a limited public forum. There are three types of fora: 1) the public forum, (2) the designated (or "limited purpose") public forum, and (3) the nonpublic forum. A public forum is one that, "by long tradition or by government fiat, [has] been devoted to assembly and debate."Q> These include public streets, parks, and public sidewalks. Perry v. Education Association v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).
A designated public forum, in contrast, is one that is created by purposeful government action, and only for particular types of expression. A public amphitheater, for example, although located in an area not typically open to expression, may through practice (or express purpose) become a designated public forum for speeches, plays, or other public events.
The case law is uniform in holding that a public library is a designated public forum opened specifically for review of the written word:
It is clear to us that a public library, albeit the "quintessential" locus for the exercise of the right to receive information and ideas, is sufficiently dissimilar to a public park, sidewalk or street that it cannot reasonably be deemed to constitute a traditional public forum. Obviously, a library patron cannot be permitted to engage in most traditional First Amendment activities in the library, such as giving speeches.
Kreimer v. Bureau of Police, 958 F.2d 1242, 1257 (3d Cir. 1992); see also Mainstream Loudoun v. Bd. of Trustees of the Loudoun Cty. Library, 24 F.Supp. 2d 552, 563 (E.D. Va. 1998).
Only conduct and speech that are consistent with the Library's purpose are protected. In Kreimer v. Bureau of Police, the only court to have considered whether a rule banning barefoot individuals from a library is a constitutional violation upheld the regulation:
Finally, we reiterate that the Library is a limited designated public forum. The Library need only permit use of its facilities which is consistent with the intent of the government when opening this forum to the public. Even within the scope of these consistent uses, it seems obvious that the Library may regulate conduct protected under the First Amendment which does not actually disrupt the Library. For example, we do not doubt that a Library may limit the number of books which a patron may borrow from it at any time, even though no request has been made by another patron for the book which the patron at his or her borrowing limit desires to withdraw. Similarly we do not doubt that the Library may limit the length of time during which a book may be borrowed. Indeed, the district court itself implicitly acknowledged this point when it modified its order so that it did not invalidate the rule requiring the wearing of shoes. . . .
Id. at n.25 (emphasis added).
As a limited designated forum, the Library may regulate conduct and limit the use of its facilities in a manner consistent with its purpose. It has done so, and done so through a policy that is designed to effectuate an important governmental interests: to protect its patrons' safety and to protect the Library's Fiscal integrity.
Even assuming that the Plaintiff's conduct is within the realm of permissible uses, the policy at issue is nonetheless a proper time, place, and manner regulation. A patron's right to access library facilities may be restricted through the use of reasonable time, manner or place regulations. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); Kreimer v. Bureau of Police, 958 F.2d 1242, 1255 (3d Cir. 1992). In analyzing whether a time, manner, or place regulation is "reasonable," a court must determine whether the regulation is designed to serve a substantial governmental interest and does not unreasonably restrict alternative avenues of communication. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 41 (1986); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 807 (1984); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647-48 (1981); Bamon Corp. v. City of Dayton, 730 F.Supp. 80 (S.D. Ohio 1990). In this case, the Library's policy meets that test.
As noted previously, the Library requires its patrons to wear shoes in order to safeguard the health and safety of its patrons and to protect its fiscal integrity. Black Affidavit at ¶3. Both interests are substantial ones. The law is well-settled that health and safety concerns are an "important or significant" governmental interest. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) ("throughout our history the several states have exercised their police powers to protect the health and safety of their citizensQ>."); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 726 (1985) (states have traditionally had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort and quiet of all persons." Gfell v. Rickelman, 441 F.2d 444, 447 (6th Cir. 1971) (regulation of personal appearance is permissible for the "promotion of safety" Q>); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972) (authorities may proscribe certain dress to stave off potential danger).
The same is true with regard to its second interest. In fact, the Library's substantial interest in safety works in tandem with its interest in avoiding tort liability. As discussed earlier, landowners and proprietors are liable for injuries to invitees, such as Plaintiff, who may be injured while walking barefoot. See Felder v. Victory Fitness Ctr., 1998 Ohio App. LEXIS 3328, *1 (Franklin Cty. 1999); Pressler v. Calhoun, 1994 Ohio App. LEXIS 4027, *1 (Warren Cty. 1994); Bisnett v. Mowder, 560 P.2d 68, 68 (Ariz. 1977); Lamb v. Redemptorist Father of Georgia, Inc., 142 S.E. 2d 278, 283 (Ga. App. 1965). Because O.R.C. §2744.02 states that Ohio's public libraries are not protected under the doctrine of sovereign immunity for negligence in performing their "proprietary" functions, the Library could be subject to tort claims, with their concomitant litigation costs, for such injuries.
Safeguarding the Library's fiscal integrity is a "significant" governmental interest sufficient to satisfy the time, place, and manner test. See Droz v. Commissioner, 48 F.3d 1120, 1124 (9th Cir. 1995) (holding that the fiscal integrity of a government program is a compelling government interest sufficient to withstand the highest level of scrutiny); United States v. Grayson County State Bank, 656 F.2d 1070, 1074 (5th Cir. 1981) (holding that the government has a substantial interest in maintaining the integrity of its fiscal policies). See also Grange Mutual Casualty Co. v. Columbus, 49 Ohio App. 3d 50, 54 (Franklin Cty. 1989); Hitch v. Ohio Dep't of Mental Health, 114 Ohio App. 3d 229 (Franklin Cty. 1996); Van Der Veer v. Ohio DOT, 113 Ohio App. 3d 60 (Franklin Cty. 1996).
Moreover, regulation need not be the least restrictive means of effectuating the governmental interest in question. It is valid so long as the governmental interest would be less effectively achieved without the policy. See Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989); United States v. Albertini, 472 U.S. 675, 689 (1985) (the requirement is satisfied "so long as the regulation promotes a substantial government interest that would be achieved less effective absent the regulation." Q>).
Both of the Library's substantial interests are more effectively advanced with the existence of the policy than they would be without. Library patrons wearing shoes are less likely to harm themselves than are barefoot patrons, and the reduction in the total number of potential injuries on Library premises will reduce the number of possible tort claims, with their attendant potential for liability and litigation costs.
Finally, the policy leaves open ample alternative channels for protected communications. Plaintiff is free to advocate the benefits of going barefoot by other means. All the Library requires is that, if he wishes to do so in the Library, he does so while wearing shoes. See, e.g., South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608 610 (11th Cir. 1984); Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992). In Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), for example, the Court considered a library policy similar to that at issue in this case. The Kreimer policy, in addition to requiring shoes, also allowed the library's staff to remove individuals with poor hygiene. The court held that the policy left open ample alternative channels:
[T]his rule leaves open alternative channels for communication in the sense that, so long as a patron complies with the rules, he or she may use the Library's facilities. Furthermore, although the Library may eject a patron for violating this rule, we do not read the rule to bar permanently a patron from reentry to the Library once the patron complies with the requirements in the absence of pervasive abuse. In sum, we find that the rule . . . leaves open ample alternative channels for communication.
Id. at 1964.
Like the regulation in Kreimer, the policy here also allows Plaintiff to enter the Library as long as he wears shoes. Similarly, the policy does not result in a permanent eviction from the Library. Indeed, all Plaintiff has to do to have complete access to the Library is to put on his shoes.
Thus, even if Plaintiff's conduct is protected by the First Amendment and is "consistent" with the purposes of the Library, the policy at issue is a reasonable time, place, and manner regulation. It advances a substantial governmental interest that would be less effectively achieved in its absence, and leaves open alternative means for the communication of the information Plaintiff seeks. As a result, Defendants are entitled to judgment as a matter of law.
Finally, Plaintiff makes claims for damages against Mr. Black and Mr. Johnson, alleging vaguely that they deprived him of rights under the First and Fourteenth Amendments. Because Plaintiff cannot articulate any "clearly established" federal constitutional or statutory right under either Amendment, the individual Defendants are entitled to judgment as a matter of law. See Saucier v. Katz, 121 S.Ct. 2151 2157 (2001) ("If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate."); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Anderson v. Creighton, 483 U.S. 635 (1987).
The law is well-settled that a public official possesses qualified immunity from suit or liability, unless the constitutional or statutory rights upon which the claim is based were "so clearly established when the acts were committed that any officer in the Defendant's position, measured objectively, would have clearly understood that he was under an affirmative duty to have refrained from such conduct." Dominique v. Telb, 831 F.2d 673, 676 (6th Cir. 1987). According to the Sixth Circuit:
[A] finding of a clearly established constitutional right must generally be supported by precedent from the Supreme Court or this Circuit, or in the alternative, by decisions from other circuits . . . . Although decisions of other courts can clearly establish the law, such decisions must both point unmistakably to the unconstitutionally of the conduct and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct is unconstitutional.
Mumford v. Zieba, 4 F.3d at 429, 432-33 (6th Cir. 1993).
This standard is objective. Thus, the question is "whether a hypothetical official, standing in [the Defendant's] shoes, would necessarily have understood that taking the steps challenged by the Plaintiff would violate the Plaintiff's clearly established constitutional or statutory rights." Cullinan v. Abramson, 128 F.3d 301, 309 (6th Cir. 1997).
This standard requires that the right be "clearly established" in a "particularlized" and "relevant" sense. Garvie v. Jackson, 845 F.2d 647, 650 (6th Cir. 1988). As the Supreme Court has explained:
For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violations. But if the test of "clearly established law" were to be applied at this level of generality it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading.
Anderson v. Creighton, 483 U.S. at 639.
Hence, in order to survive a motion for summary judgment, Plaintiff must allege specific facts demonstrating that a "clearly established" right has been violated. Veney v. Hogan, 70 F.3d 917, 922 (6th Cir. 1995). The question whether an adequate pleading demonstration has been made is a purely legal one for the court the decide. See Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir. 2000).
Plaintiff cannot meet this burden. Although the Complaint states that Mr. Black and Mr. Johnson violated a number of Plaintiff's constitutional rights, the rights Plaintiff claim were violated cannot remotely be said to be fundamentally established, either by statute or judicial decision. See supra. Further, the individual defendants sought an opinion from the Franklin County Prosecutor's office that the regulation requiring shoes was constitutionally valid. Amended Complaint, ¶21; Black Affid. ¶10; Exh. 4. As important, the only authority "on point," Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir.1992), resolves the issues in favor of the Defendants' position. Qualified immunity protects all public officers who are not "plainly incompetent or . . . who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Plaintiff cannot present evidence that either individual Defendant knowingly violated any law. As a result, both Mr. Black and Mr. Johnson are protected by the doctrine of qualified immunity.
On these facts, Plaintiff's claimed constitutional right to go barefoot was not "clearly established" at the time of the events in this case. Mr. Johnson and Mr. Black thus are entitled to judgment as a matter of law.
Defendants are entitled to judgment as a matter of law because Plaintiff's claims are founded upon a constitutional right that does not exist: the right to go barefoot in a public facility. Because this right does not exist, Plaintiff can provide no evidence that would entitle him to relief. As a result, Defendants respectfully request that this Court grant summary judgment.
Footnotes:
1. Although Plaintiff has asserted that his right to access information under the Ohio Constitution is also implicated by the Library Policy, Ohio's protection of free speech is no greater than that provided by the federal Constitution. See State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals, 63 Ohio St. 3d 354, 362 (1992). [Back]
2. Plaintiff's due process rights under the federal constitution are coterminous with his rights under the Ohio constitution, and thus must be analyzed under the same rubric. See Adler v. Whitbeck, 44 Ohio St. 539 (1886); Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540 (1941); Wilson v. Zanesville, 130 Ohio St. 286 (1935). [Back]
3. The standard for determining if a statute violates equal protection is "essentially the same under state and federal law." State v. Thomkins, 75 Ohio St. 3d, 560 (1996). [Back]
4. Plaintiff also claims that the Library policy violates a substantive due process interest in accessing speech. The Supreme Court has made clear that a plaintiff cannot transform any and all claims into "substantive due process claims" in this manner merely by labeling them as such. As the Court stated:
Where a particular Amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing" such a claim.
Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 295 (1989)).
Here, Plaintiff attempts to transform a claim regarding his right to access the Library into a substantive due process claim. Because the right to access a public library (as Plaintiff himself acknowledges) has a specific textual source in the First Amendment, this claim cannot, and is not, a "substantive due process" claim. [Back]
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Respectfully submitted,
_______________________ Philomena M. Dane (0044064) (Trial Attorney) Johnathan E. Sullivan (0072371) Squire, Sanders & Dempsey L.L.P. 1300 Huntington Center 41 South High Street Columbus, OH 43215 (614) 365-2700 Attorney for Defendant Board of Trustees of the Columbus Metropolitan Library, Larry D. Black, and Vonzell Johnson |
The undersigned hereby certify that a copy of the foregoing Motion for Summary Judgment was served, by regular U.S. mail, postage prepaid, upon Robert A. Neinast, Plaintiff, 8617 Ashford Lane, Pickerington, Ohio 43147, this 2nd day of August, 2001.