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Morris v. Huebsch

United States District Court, W.D. Wisconsin

March 3, 2017

LINCOLN S. MORRIS, Plaintiff,
v.
MIKE HUEBSCH, DAVID ERWIN, EDWIN BARDON, TODD THOMAS, DANIEL ESSINGTON and JEFF CALHOUN, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge

         Plaintiff Lincoln S. Morris brings this civil action for violation of his First and Fourth Amendment rights by certain Wisconsin State Capitol Police Officers, who allegedly arrested him for playing his spiritual Chippewa drum in the capitol. Previously, the court granted in substantial part defendants' motion for judgment on the pleadings (see 2/28/14 Op. & Order (dkt. #17)), leaving as the sole issue whether qualified immunity applies to Morris's remaining First Amendment damages claim. The parties have since conducted targeted discovery on that question, and defendants subsequently filed a motion for summary judgment. (Dkt. #19.) In addition to filing his opposition, Morris cross-moves for grant summary judgment in his favor, arguing that defendants violated his clearly established First Amendment rights. (Dkt. #27.)

         For the reasons explained below, the court finds that defendants are entitled to qualified immunity, and so their motion to dispose of the individual capacity claims will be granted. Moreover, in light of the court's findings, any claims against defendants in their official capacity also appear to be without merit. Nevertheless, the court will provide plaintiff with an opportunity to explain why this last portion of his lawsuit should not be dismissed as well.

         UNDISPUTED FACTS[1]

         I. The Parties

         Plaintiff Lincoln S. Morris is a member of the Red Cliff Band of Lake Superior Chippewa Indians (“Red Cliff Band”). He lives on the Red Cliff Reservation, a beautiful cape extending into the lake near what is now the Apostle Islands National Lakeshore in Northern Wisconsin, where he observes Native American spiritual practices, including drumming and singing.

         Defendant Mike Huebsch was the Secretary of the Wisconsin Department of Administration (“DOA”) during all times relevant to Morris's complaint.[2] Defendant Charles A. Tubbs, Sr. was the Chief of Police of the State Capitol Police Department, a DOA division, during the relevant time period. Defendants Edwin Bardon and Todd Thomas are a Detective and Sergeant, respectively, with the State Capitol Police. Defendants Daniel Essington and Jeff Calhoun are both State Capitol Police officers.

         II. Wisconsin State Capitol Rules Regarding Instruments

         Since 1991, individuals have not been permitted to play any musical instruments in the Wisconsin State Capitol without a permit. The “no musical instrument rule” encompasses all musical instruments, as well as items that could be used “like instruments to create music.” The rule is not based on the type of music being played, nor does it take into account the race, ethnicity or religious beliefs of the musician.

         Well before the 2012 incident that is the subject of the current dispute, Officer Calhoun understood that there was this “historical” prohibition on playing musical instruments in the Capitol without a permit. In fact, he had warned many other individuals of the permitting requirement during his time with the Capital Police, and all of those individuals had voluntarily stopped playing after receiving a warning or had had their instruments seized.

         During the events involving Morris, however, the court assumes there were no signs posted anywhere in the Capitol stating that musical instruments in general, or drums in particular, were prohibited in the Capitol. Moreover, no other person has ever been issued a citation for violating the rule against unpermitted musical instruments.

         III. Morris' Citation

         On January 26, 2012, Morris traveled to the Capitol as one of about fifty members of the Lake Superior Chippewa Indian Tribes, including the Red Cliff Band and the Bad River Band. The Red Cliff Band had become concerned about a proposed open-pit taconite iron mine in the Penokee Hills near Mellen, Wisconsin, which is approximately 40 miles from its reservation. Their purpose in traveling to the Capitol was to protest the passage of iron mining legislation denominated “AB 426, ” which they believed would significantly weaken Wisconsin's existing metallic mining laws to allow rapid approval of the proposed mine. Morris and others hoped to convince members of the Wisconsin State Assembly to vote against AB 426 by lobbying, expressing their opposition and engaging in respectful and nonviolent protest within the Capitol.

         Morris brought with him a spiritual Chippewa drum, which he made on December 31, 2011. To the Chippewa people, drumming is a sacred form of musical expression that communicates feelings and spiritual energy, which cannot be expressed with the voice alone. Around noon, a five-person, Bad River Band spiritual drum group played a spiritual drum song and Chippewa prayer on the ground floor level of the Capitol rotunda. Even though the song was performed without permission, the Capitol Police advised the group that they could complete their one song without being ticketed and could then move to an Assembly room to perform a ceremony.

         At the time the Bad River Band was performing, Morris was on the first floor of the rotunda, preparing to play his own drum. When the Bad River Band finished, Morris began to play his own drum softly. Officer Calhoun saw Morris playing his drum on the first floor area of the rotunda and approached him.

         Calhoun and Morris then had a conversation, the substance of which is in dispute. Calhoun avers that he specifically told Morris to stop drumming because individuals need a permit to play a musical instrument in the Capitol. In contrast, Morris not only avers that Calhoun did not tell him that, but also failed to explain that: (1) Morris could not drum anywhere in the Capitol; (2) he could not have the drum inside; (3) he needed a permit to drum; or (4) he could drum within the Capitol provided he had a permit. Instead, Morris indicates that Calhoun and he had a very brief conversation, during which Morris agreed to stop drumming on the first floor. Nevertheless, he was led to believe that he could drum on the ground floor, where the Bad River Band had been doing just that, albeit briefly. Morris also indicates that Calhoun was wearing earplugs and did not seem to hear him well.

         About fifteen minutes later, Morris went down to the ground floor of the rotunda. As fate would have it, he was welcomed by a group of about fifteen “Noontime Solidarity Singers, ” who were at the time regularly gathering to sing and chant against the policies of Governor Scott Walker. They invited Morris to drum his prayer in opposition to AB 426, and Morris began playing his drum for a second time, at a volume lower than the Solidarity Singers' vocal performance. Consequently, within a few minutes, Officer Calhoun approached Morris again, this time accompanied by Officer Essington and other armed State Capitol Police Officers. While neither Calhoun nor Essington knew that Morris was Native ...


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