Cory Sessler v. City of Davenport, Iowa

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-3290
___________________________
Cory Sessler
lllllllllllllllllllllPlaintiff - Appellant
v.
City of Davenport, Iowa; Greg Behning, in his individual capacity acting as a
police officer for the City of Davenport, Iowa; Jason Smith, in his individual
capacity acting as a police officer for the City of Davenport, Iowa; J.A. Alcala, in
his individual capacity acting as a police officer for the City of Davenport, Iowa
lllllllllllllllllllllDefendants - Appellees
___________________________
No. 19-3310
___________________________
Cory Sessler
lllllllllllllllllllllPlaintiff - Appellee
v.
City of Davenport, Iowa; Greg Behning, in his individual capacity acting as a
police officer for the City of Davenport, Iowa; Jason Smith, in his individual
capacity acting as a police officer for the City of Davenport, Iowa; J.A. Alcala, in
his individual capacity acting as a police officer for the City of Davenport, Iowa
lllllllllllllllllllllDefendants - Appellants
____________

-- 1 of 11 --

Appeals from United States District Court
for the Southern District of Iowa - Davenport
____________
Submitted: December 15, 2020
Filed: March 18, 2021
____________
Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.
____________
MELLOY, Circuit Judge.
Plaintiff Cory Sessler appeals the denial of his motion for a preliminary
injunction, which sought to enjoin Defendants from enforcing Davenport’s Special
Events Policy against him. Both parties appeal. We affirm the order of the district
court.1
I. Background
Street Fest is an annual event in downtown Davenport (the City) that coincides
with the annual Quad Cities “Bix 7” road race. The race usually has 12,000–18,000
runners. Street Fest is organized by the Downtown Development Partnership and has
been an annual two-day festival in the City for over forty years. It draws
approximately 20,000 total attendees each year. According to Street Fest’s organizer,
the festival provides its thousands of attendees a convenient way to access food,
shopping, live music, and family activities. It provides a way for permitted vendors
to showcase their food, beverages, and products to a large number of people.
1The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
-22-

-- 2 of 11 --

Outdoor events, such as Street Fest, are governed by the City’s Special Events
Policy (the Policy), which provides requirements for event organization and
management. Before an outdoor event can take place, event organizers must submit
an online application for the City’s approval. Events are required to have security on
site, including Davenport Police Officers. Events may have vendors and food stalls
as long as all vendors have necessary permits.
In 2018, having received approval from the City, Street Fest was held from July
27–28 on public streets and sidewalks in downtown Davenport—covering Second
Street between Ripley Street and Brady Street. The streets were closed to vehicles.
The designated festival area was surrounded by six-foot-high temporary chain-link
fence and had multiple entrance gates. Tickets were not required for entrance, but
festival security personnel monitored all entrance and exit areas. The City required
Street Fest to hire off-duty police officers to provide security at the event. On-duty
officers were also present, including Defendants–Officers Greg Behning, Jason
Smith, and J.A. Alcala.
To generate revenue, Street Fest organizers issued vendor permits for a fee.
Vendor permits were issued with the express qualification that vendor presentations
were subject to review, and, if necessary, exclusion, if vendors interfered with the
safety and convenience of festival attendees or otherwise disrupted the festival’s
objective of providing a wide variety of family activities. Vendors were prohibited
from playing music at their booths and had to obtain pre-approval to distribute
literature or extend their activities beyond the confines of their assigned booths.
On July 28, 2018, Sessler, a resident of Iowa, and his colleagues attended
Street Fest as members of the public. They did not have a vendor permit, nor had
they applied for one. Sessler and his colleagues had signs on extendable poles with
messages such as: “Hell is enlarged for adulterers . . . homosexuals . . . abortionists
-33-

-- 3 of 11 --

. . . .”; “Fake Christians . . . don’t . . . smoke, vape, and get high . . . and think they’re
saved”; and “Warning: if you are involved in . . . sex out of marriage, homosexuality,
drunkenness, night clubbing . . . you are destined for a burning hell.” Sessler
preached similar messages using a microphone and speaker.
Sessler’s group initially congregated at the corner of Second Street and Main
Street, which was a location assigned to a fee-paying juggling and magic vendor. The
vendor complained to Street Fest organizers that Sessler was in their assigned spot.
Another vendor complained to Officer Behning that Sessler was telling her customers
they were going to hell. Several attendees also complained to Officer Behning that
the activities of Sessler and his group were disturbing the festival.
Officers Behning, Smith, and Alcala approached Sessler and his colleagues and
asked them to move to another location. Officer Smith proposed, and Sessler agreed,
to investigate whether a location in front of a particular entrance, the Skybridge
entrance on Second Street, would be an acceptable location for his activities. The
second location was unacceptable to Sessler because it was behind vendor tents,
which blocked Sessler from people and separated him from the street where most of
the people were located. Sessler and his group were allowed to move, instead, to an
area near Street Fest’s entrance on Brady Street and Second Street. Sessler and his
group preached near this other Street Fest entrance for approximately thirty minutes
until Street Fest organizers received more complaints from attendees and vendors.
After receiving these additional complaints, Officer Behning told Sessler he
had to leave the festival area and, if he did not leave the festival area, he would be
subject to arrest. Officer Behning told Sessler that he could continue his street
preaching activities outside the festival area, across the street from one of the Street
Fest entrances. Sessler and his colleagues preached directly across the street from the
Street Fest festival on the City’s sidewalks for approximately two to three more hours.
-44-

-- 4 of 11 --

Sessler was not asked to move from this final location and had no further interaction
with the City’s law enforcement.
Approximately one month later, on August 15, 2018, Sessler contacted the
office of the City Attorney to discuss what had happened at Street Fest. Assistant
City Attorney Mallory Hoyt told Plaintiff that she had reviewed the incident and the
officers’ actions were lawful. According to the City, because Street Fest was a
permitted event, approved under the City’s Special Events Policy, the Street Fest
organizers had the authority to request Sessler’s removal from the festival area.
On January 31, 2019, Sessler filed suit seeking injunctive and declaratory
relief, damages, and attorney fees. Sessler named as Defendants the City of
Davenport and the three police officers with whom he interacted at Street Fest. The
Complaint states that it “challenges the interpretation and enforcement” of the City’s
Special Events Policy. It alleges Defendants violated Sessler’s First Amendment
rights to free speech (Count 1) and free exercise (Count 2) by enforcing the Policy
against Sessler on July 28, 2018 at Street Fest. The Complaint provides portions of
the Policy, including:
• This document sets forth the guidelines for the implementation of
the Special Events Policy by the City of Davenport. It defines,
categorizes, and sets a fee structure for all Special Events.
• It is the purpose of this policy to regulate special outdoor events
conducted in the City of Davenport so that such events can be
held with the safety and health of participants in mind, the
protection of public property considered, and the impact of the
event on non-participating citizens minimized.
• Special Event refers to outdoor events that include . . . festival
. . . .
-55-

-- 5 of 11 --

• The City shall be charged with the responsibility of determining
whether a particular sponsor shall be entitled to conduct an
outdoor special event.
• Sponsors who wish to make a request for a special event shall
submit an online application located on the City’s website.
The Complaint states that “[o]n upcoming days – including but not limited to
days in November 2018 through December 2022 – [Sessler] has concrete plans to
engage in his constitutionally-protected activities by peacefully expressing religious,
political, and social speech within the City’s Public Spaces.”2 It also alleges that,
because “of Defendants’ prior enforcement of the Policy, [Sessler] is forfeiting his
constitutionally-protected activities due to fear of arrest, incarceration, and fines.”
Sessler contemporaneously moved for a preliminary injunction, requesting the
district court enjoin Defendants “from restricting and limiting his rights to peacefully
share his message of faith by speaking with people, displaying signs, and/or
distributing literature to those willing to receive it, in the public parks, public streets,
public sidewalks, and public rights-of-way within the jurisdiction of the City.” With
Sessler’s acquiescence, the district court allowed the City to conduct discovery before
responding to the motion for a preliminary injunction. The parties collected cell
phone and officer body camera footage of the Street Fest incident, conducted
depositions, and agreed on a set of stipulated facts for purposes of a hearing on the
motion. The district court held a hearing in July 2019. It issued an order denying
Sessler’s request on September 24, 2019. The district court found that Street Fest was
a traditional public forum and that, although Sessler engaged in protected speech at
Street Fest, the police officers’ decision to move Sessler to an adjacent location was
likely a content-neutral limitation on the time, place, and manner of his speech. The
2In the Complaint, Sessler defines “Public Spaces” as “public parks, public
streets, public sidewalks, and public rights-of-way within the jurisdiction of the City.”
-66-

-- 6 of 11 --

district court found the limitation would likely satisfy intermediate scrutiny. Finding
Sessler unlikely to succeed on the merits of his claim, the district court also
determined each of the Dataphase factors applicable to its preliminary injunction
analysis weighed in favor of denying Sessler’s motion. Both parties appeal. Sessler
challenges the district court’s analysis in its entirety. The City challenges the finding
that Street Fest was a traditional public forum.
II. Standard of Review
“A district court considering injunctive relief evaluates the movant’s likelihood
of success on the merits, the threat of irreparable harm to the movant, the balance of
the equities between the parties, and whether an injunction is in the public interest.”
Powell v. Ryan, 855 F.3d 899, 902 (8th Cir. 2017) (citing Dataphase Sys., Inc. v. C
L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc)). We generally review the
denial of a preliminary injunction for abuse of discretion and reverse “where the
district court rests its conclusion on clearly erroneous factual findings or erroneous
legal conclusions.” Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d
864, 870 (8th Cir. 2012) (en banc). We review the district court’s legal conclusions
de novo. Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d 1094, 1098 (8th
Cir. 2013).
III. Discussion
The First Amendment forbids laws “prohibiting the free exercise [of religion];
or abridging the freedom of speech . . . ; or the right of the people peaceably to
assemble.” U.S. Const. amend. I. The protections announced in the First Amendment
show “a ‘profound national commitment’ to the principle that ‘debate on public issues
should be uninhibited, robust, and wide-open.’” Boos v. Barry, 485 U.S. 312, 318
(1988) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
-77-

-- 7 of 11 --

Here, Sessler seeks to protect his right to share his religious messages in public
spaces within the City of Davenport. He requests that he not be restricted from
“speaking with people, displaying signs, and/or distributing literature to those willing
to receive it, in the public parks, public streets, public sidewalks, and public rights-of-
way within the jurisdiction of the City.” At first glance, he makes reasonable requests
based on our First Amendment principles. After all, “[i]t is uncontested and
uncontestable that government officials may not exclude from public places persons
engaged in peaceful expressive activity solely because the government actor fears,
dislikes, or disagrees with the views those persons express.” Wood v. Moss, 572 U.S.
744, 756–57 (2014). “However, ‘the fundamental right to speak secured by the First
Amendment does not leave people at liberty to publicize their views whenever and
however and wherever they please.” Phelps-Roper v. Ricketts, 867 F.3d 883, 891
(8th Cir. 2017) (quoting Wood, 572 U.S. at 757).
Sessler challenges the City’s Policy as applied to him. He alleges the Policy
allows for an event, such as Street Fest, to give priority to the speech of vendors who
are willing to pay a permit fee. In reviewing the Policy, we find it to be a content-
neutral permitting scheme. The Supreme Court has recognized permitting schemes
as valid means for the government “to regulate competing uses of public forums.”
Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992) (noting that “any
permit scheme controlling the time, place, and manner of speech must not be based
on the content of the message, must be narrowly tailored to serve a significant
governmental interest, and must leave open ample alternatives for communication”).
And, other courts assessing claims similar to Sessler’s have noted that “[t]he right of
free speech does not encompass the right to cause disruption, and that is particularly
true when those claiming protection of the First Amendment cause actual disruption
of an event covered by a permit.” Startzell v. City of Philadelphia, 533 F.3d 183, 198
(3d Cir. 2008); see also id. at 198–99 (noting that the City’s interest “in ensuring that
a permit-holder can use the permit for the purpose for which it was obtained. . . .
-88-

-- 8 of 11 --

necessarily includes the right of police officers to prevent counter-protestors from
disrupting or interfering with the message of the permit-holder”). Although Sessler
possesses a First Amendment right to communicate his messages in a public forum,
he does not have the wholesale right to disrupt an event covered by a permit.
The parties primarily dispute whether the district court abused its discretion in
determining Sessler failed to demonstrate a sufficient likelihood of success on the
merits of his claim. Even if we assume for purposes of this appeal, without deciding,
that Sessler has shown a likelihood of success on the merits, we find Sessler’s
inability to demonstrate a threat of irreparable harm heavily weighs against granting
preliminary injunctive relief.
To justify prospective injunctive relief in this context, Sessler must, at
minimum, establish he will suffer irreparable harm in the face of the City’s Policy
without the court’s intervention. The failure of a movant to show irreparable harm
is an “independently sufficient basis upon which to deny a preliminary injunction.”
Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). Sessler’s argument for
preliminary relief is impaired by his inability to show with any likelihood that the
Policy will be applied to him in the future. To establish the need for a preliminary
injunction, the movant must show more than the mere possibility that irreparable
harm will occur. A movant must show he is “likely to suffer irreparable harm in the
absence of preliminary relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). Sessler has not indicated he has any plans to apply to host an event or
to be a vendor at an event governed by the Policy. And, Sessler did not apply to be
a vendor at Street Fest. Further, Sessler has not shown any desire or plans to attend
an event in the City that is governed by the Policy. Nor does he provide any concrete
plans to engage in street preaching in the imminent future. Instead, Sessler vaguely
alleges he plans to preach “within the City’s Public Spaces” on “upcoming” days,
“including but not limited to days in November 2018 through December 2022.”
-99-

-- 9 of 11 --

Aside from lacking specificity, these allegations push the scope of Sessler’s request
for preliminary relief well beyond the facts of Sessler’s Complaint.
The facts as alleged by Sessler show that he was allowed to continue preaching
in the City’s public sidewalks and streets, just not those demarcated and secured for
use by Street Fest in July 2018. And, although Sessler’s Complaint is based on his
removal from a festival governed by the City’s Policy, Sessler does not provide any
concrete plans to share his messages at future festivals in the City. Although his
statement that he intends to preach in “Public Spaces” could, in certain situations,
include public property for which a private entity obtained a permit, it is too
speculative as to whether any location on which Sessler preaches in the future would
be subject to the City’s Special Events Policy. This type of “[s]peculative harm does
not support a preliminary injunction.” S.J.W. ex rel. Wilson, 696 F.3d at 779; cf.
Duhe v. City of Little Rock, 902 F.3d 858, 866–67 (8th Cir. 2018), cert. denied, 139
S. Ct. 1178 (2019) (concluding plaintiffs lacked standing to challenge a permit
ordinance because they “did not apply for a permit,” were not “arrested or cited for
violating the ordinance,” and “failed to make a sufficient showing of a risk . . . . that
the permit ordinance w[ould] apply to” their desired “course of conduct”).
Ultimately, Sessler bore the burden of establishing that an “extraordinary
remedy” such as a preliminary injunction was appropriate in his case. Watkins, 346
F.3d at 844. He did not meet his burden because he did not show he would suffer
irreparable harm without prospective relief.3 “[O]ur task at this point is not to decide
3Nor are we convinced that, if granted, Sessler’s proposed injunction would
meet the requirements of Federal Rule of Civil Procedure 65(d) (providing that an
injunction must “state its terms specifically”). He proposes that the City be enjoined
“from restricting and limiting his rights to peacefully share his message of faith by
speaking with people, displaying signs, and/or distributing literature to those willing
to receive it, in the public parks, public streets, public sidewalks, and public rights-of-
-1100-

-- 10 of 11 --

the merits of this case, but only to determine whether the district court abused its
discretion in assessing ‘whether the balance of equities so favors [Sessler] that justice
requires the court to intervene to preserve the status quo until the merits are
determined.” Powell v. Noble, 798 F.3d 690, 702–03 (8th Cir. 2015) (quoting
Dataphase, 640 F.2d at 113). Sessler has asked the district court to determine
whether enforcement of the City’s Policy violated his constitutional rights during
Street Fest. Such a determination will eventually be made. However, Sessler has not
demonstrated preliminary injunctive relief is warranted in his case.
We affirm the order of the district court.4
___________________________
way within the jurisdiction of the City.” Setting aside the fact that this request goes
beyond the facts of his underlying Complaint, it is also true that “an injunction which
does little or nothing more than order the defendants to obey the law is not specific
enough.” Daniels v. Woodbury Cnty., 742 F.2d 1128, 1134 (8th Cir. 1984). We are
not convinced Sessler’s request is more than an obey-the-law injunction. When asked
about this issue during oral argument, Sessler was unable to alleviate our concerns.
4Since resolution of the forum issue raised by Defendants’ cross-appeal is not
necessary to support our decision, we decline to address the issue at this time.
-1111-

-- 11 of 11 --