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Tuesday, February 04, 2014

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal

In Eric Smith v. Executive Director of the Indiana War Memorials Commission (SD Ind., Lawrence),a 14-page opinion, Judge Hamilton writes:

The Indiana War Memorials Commission supervises the Soldiers and Sailors Monument at Monument Circle in Indianapolis, as well as several other monuments in downtown Indianapolis. A Commission policy requires even small groups to obtain a permit before gathering on Commission properties. Plaintiff Eric Smith and his young son were expelled from Monument Circle for protesting a proposed United Nations arms treaty without a permit. Smith claims here that the Commission’s permit policy violates the First Amendment. He appeals from the district court’s denial of his motion for a preliminary injunction against the policy’s enforcement. The defendants say little about the merits but argue that his appeal is moot because the permit policy has changed since the district court denied the motion. We conclude, however, that the new policy retains the problematic features of the old, so Smith’s appeal is not moot. Because we also conclude that Smith has met the requirements for obtaining a preliminary injunction, we reverse the judgment of the district court and remand the case with instructions to enter an appropriate preliminary injunction. * * *

We leave it to the court on remand to determine the proper scope of the injunction, including whether it should extend beyond Monument Circle to other properties the Commission administers. As we have explained, the number of people who must be allowed to gather without a permit may depend on the specifics of the space in question. We decide here only that Smith appears likely to prove at trial that fifteen is too small a number to trigger a permit requirement for Monument Circle and that he has met the other requirements for preliminary injunctive relief. In its order denying Smith’s motion, the district court expressed uncertainty over whether Smith was seeking an injunction that would protect only his right to protest or was seeking an injunction based on a facial challenge that would bind the Commission with respect to everyone. Because Smith has a reasonable likelihood of showing that the policy is unconstitutional both as it was applied to him and as it applies to individuals and small groups generally, the preliminary injunction should prohibit its enforcement against any individual or small group.

[Update at 4:06 PM] Tim Evans has now posted a story at the IndyStar site that begins:
A veteran who was threatened with arrest because he did not have a permit to conduct a protest on Monument Circle has won a federal appeal that could allow other protesters to use the site without a permit.

The U.S. Court of Appeals for the 7th Circuit, in a unanimous decision today, reversed a 2013 ruling in the case by District Judge William T. Lawrence. The judge had declined to issue an injunction barring the Indiana War Memorials Commission from requiring individuals or small groups of protesters to obtain a permit to demonstrate on the grounds it controls.

In addition to the Soldiers and Sailors Monument, those sites are University Park, the American Legion Mall and Veterans Memorial Plaza.

The appellate ruling said the district court should issue a preliminary injunction prohibiting the commission from requiring individuals and small groups from obtaining permits until a permanent resolution is reached.

"One of the great freedoms given to us by the First Amendment is the ability for people to go to public places, like Monument Circle, parks and other public spaces and engage in peaceful assembly and protest free of unnecessary restrictions,” ACLU Legal Director Ken Falk said in a statement.

Posted by Marcia Oddi on February 4, 2014 02:25 PM
Posted to Ind. (7th Cir.) Decisions