Eighth Circuit Court of Appeals Affirms Favorable District Court Ruling for Lane & Waterman’s Clients

Lane & Waterman attorneys Jason O’Rourke and Alex Barnett successfully defended the City of Davenport and its police officers against a street preacher’s constitutional claims alleging violation of his free exercise and free speech rights under the First Amendment of the U.S. Constitution.  The lawsuit arises out of a street preacher and his colleagues engaging in preaching activities at Street Fest, an annual festival in downtown Davenport, IA, which is a permitted event open to the public that occurs on the City’s public streets and sidewalks.  The festival organizer and Davenport police officers attempted to accommodate the street preacher and his colleagues’ means of speech within the festival area for approximately an hour, but the preacher and his colleagues ultimately created adverse effects on the festival and were asked to leave the festival under the threat of arrest; the street preacher and his colleagues, however, were allowed to continue their street preaching activities directly across the street from the festival.  The district court granted the police officers and the City summary judgment, finding the officers were entitled to qualified immunity and that the street preacher was not removed pursuant to an “official policy” from the City.

The Eighth Circuit Court of Appeals recognized the case “present[ed] many challenging and close questions,” but affirmed the district court’s detailed summary judgment ruling.  In doing so, the Eighth Circuit found the decision to remove the street preacher and his colleagues from the festival was neutral and reasonable and that “no reasonable jury could find the officers based their actions on the content of Mr. Sessler’s message.”  The Eighth Circuit also held qualified immunity applied because it was not clear whether the Street Fest area was a traditional public forum or a limited public forum and, therefore, a reasonable officer would not have known he was violating the street preacher’s constitutional rights under the unique facts and circumstances presented. Finally, the Eighth Circuit held that the City’s special events policy was “silent . . . as to speech” and did not violate Sessler’s rights. [Click to read the Eighth Circuit Court of Appeal’s split 27-page decision].

Jason J. O’Rourke joined the firm in 1998. His practice is almost entirely devoted to litigation and appeals. Jason has litigated complex construction cases through jury trials and arbitrations. He has also litigated a number of cases involving noncompetition agreements and post-employment restrictions. Finally, he has handled a variety of commercial and personal injury cases such as breach of contract, wrongful death and premises liability claims.

Alexander C. Barnett joined Lane & Waterman in July 2017 and practices primarily in the area of litigation with focus areas of commercial litigation, construction law, worker’s compensation, and product liability and mass torts.


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