Federal appeals panel reinstates abortion foe’s free-speech case

Wednesday, March 22, 2000

An anti-abortion activist arrested for refusing to stop his protest in front of the Owosso, Mich., City Hall has had his civil rights lawsuit reinstated by a federal appeals court panel.

James L. Pouillon, who regularly demonstrated on city sidewalks, moved his anti-abortion protest on Dec. 22, 1994, to a small plaza between the upper and lower flights of steps to City Hall.

Two police officers ordered Pouillon to quit protesting with his large sign on the City Hall steps. They said he could continue his activity on the sidewalk. After Pouillon refused to end his anti-abortion expression on the City Hall plaza, he was arrested for violating a city ordinance which prohibits impeding a police officer in the performance of her or his duties.

Pouillon sued the city and the officers in federal court, contending that his civil rights had been violated under the First Amendment and the Fourth Amendment right to be free from unreasonable searches and seizures.

He argued that the officers’ actions violated his rights of free speech, free assembly and freedom of religion.

The officers countered that the restriction on Pouillon’s protesting activities was a reasonable time, place and manner restriction because it left Pouillon with alternative avenues of communication, such as protesting on the sidewalk. They also argued that they were entitled to qualified immunity, which shields government officials from liability as long as they do not violate a clearly established constitutional right.

In 1997, the case went to trial, and a federal jury ruled for the officers.

On appeal to the 6th U.S. Circuit Court of Appeals, Pouillon argued that the trial judge, U.S. District Judge Anna Diggs Taylor, had erred by mixing questions of fact and law in her charge to the jury. In legal cases, a judge determines questions of law, while a jury determines questions of fact.

Pouillon argued that Taylor erred by allowing the jury to decide the case by general verdict, thereby permitting the jury to determine whether the officers were entitled to qualified immunity.

Pouillon contended that it was the responsibility of the judge, not the jury, to determine the legal question of qualified immunity.

In its March 16 opinion in Pouillon v. City of Owosso, a three-judge panel of the 6th Circuit reinstated the activist’s claims, agreeing that the jury instructions were flawed.

Testimony at the trial indicated that the arresting officers had determined that citizens had no right to protest on the City Hall steps and plaza, deciding that they were private property. The trial judge allowed the jury to decide whether Pouillon had a right to protest on the City Hall steps at all.

The 6th Circuit ruled that “the steps of Owosso’s city hall are a traditional public forum, and that expression there cannot be banned absolutely.”

According to the 6th Circuit, the trial court judge allowed the jury to determine questions of law as well as questions of fact.

The 6th Circuit agreed with the trial judge’s instruction that reasonable time, place and manner restrictions may be imposed on speech on the City Hall plaza. However, the appeals court wrote: “But the jury should not have been free to decide, for example, that Pouillon had no right to be on the steps and could be ordered off at the whim of someone from City Hall.”

The appeals court concluded: “We hold that the district court abused its discretion in submitting to the jury questions of law as well as questions of fact.”

The case now goes back to the district court for a new trial.

Attorneys on both sides of the case were out of the office and unavailable for comment.