                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS            June 6, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                 Clerk

                            No. 06-30294

                      ))))))))))))))))))))))))))

WORLD WIDE STREET PREACHERS FELLOWSHIP; KENNETH COLEMAN, SR.

                Plaintiffs–Appellants

     v.

TOWN OF COLUMBIA

                Defendant-Appellee



           Appeal from the United States District Court
               for the Western District of Louisiana
                          No. 3:05-CV-0513



Before KING, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant World Wide Street Preachers Fellowship

(“SPF”) and one of its members Plaintiff-Appellant Kenneth

Coleman (“Coleman”) (collectively, “Plaintiffs”) have chosen in

recent years to demonstrate alongside various roads in Defendant-

Appellee Town of Columbia (“Columbia”).     Following several

encounters with Columbia police officers, one SPF member was



     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
arrested and other demonstrators were threatened with arrest.

This lawsuit followed.   On cross-motions for summary judgment,

the district court held that Plaintiffs’ First Amendment rights

had not been violated by Columbia’s actions and that Plaintiffs

were not entitled to attorneys’ fees.   Plaintiffs appealed the

adverse decision, and we now REVERSE the district court’s grant

of Columbia’s motion for summary judgment, AFFIRM the district

court’s denial of Plaintiffs’ motion for summary judgment, and

REMAND for further proceedings consistent with this opinion.

               I. FACTUAL AND PROCEDURAL BACKGROUND

     SPF is an organization of street preachers.    In recent

years, SPF has demonstrated several times in Columbia, Louisiana.

As shown by the DVDs of their activities in Columbia, SPF’s

demonstrations consist of members standing on the side of a road

holding up signs with one or two members speaking into

bullhorns.1   Many of the signs speak of the consequences of sin

and the need for repentance.   Some, however, are critical of

abortion, homosexuals, and women pastors.    Of significance to

this case, some of SPF’s anti-abortion signs contain pictures of

aborted babies.   These demonstrations appear to be attended by

anywhere from five to fifteen SPF members.

     Plaintiffs carried out one such demonstration on December

27, 2003, at the southwest corner of the intersection of Highway

     1
        SPF recorded portions of their demonstrations in Columbia
and have entered the DVDs of those demonstrations into evidence.

                                 2
165 and Church Street in Columbia.   Plaintiffs called the police

when one of the demonstrators was almost hit by a car.   Officer

Robert Miles (“Miles”), the Assistant Police Chief, spoke with

SPF member Allen Russell (“Russell”) about the situation.    During

their conversation, Miles made the following statements:2

     •    We don’t mind you all holding up the signs but do
          you have to hold up those . . . pictures?

     •    If it’s offensive to one person, that makes it
          wrong.

     •    It’s just like disturbing the peace.

     •    It’s not the fact that you’re out here.   It’s the
          fact that your signs are offensive.

Miles, however, indicated that he agreed with Plaintiffs’ anti-

abortion message.   He also repeatedly asked that the SPF members

remain behind the white fog line on the edge of the highway.3

Plaintiffs continued with their demonstration and were not

required to put away their signs.

     Several SPF members returned to the same location on

December 30, 2003, although it is unclear whether Coleman was

with them.   Columbia Chief of Police Doug Crockett requested that

the SPF members put away their signs until he could determine


     2
        Plaintiffs assert the statements were made by Miles, as
opposed to another officer at the scene; however, the DVD does
not reflect which officer made the statements. Columbia has not
contested that the statements were made by Miles on appeal.
     3
        The evidence does not indicate whether Plaintiffs had
actually crossed over the white line or whether Miles was simply
asking them to be cautious.

                                 3
whether their actions violated the law.       The SPF members refused,

and they were permitted to proceed with their demonstration.

     When the southwest corner of the intersection of Highway 165

and Church Street underwent excavation, Plaintiffs moved their

demonstrations to the southeast corner.       A United Methodist

Church (“United Methodist”) is located on and owns the land in

this corner of the intersection.       In this area, Highway 165 is

bordered by a white fog line, followed by a paved shoulder, and

then an area of dirt and grass.    The district court found, and it

has not been contested on appeal, that the area of dirt and grass

is United Methodist’s property, while the highway and paved

shoulder are the property of Louisiana.       What is contested on

appeal is the width of the paved shoulder--Plaintiffs contend it

is eight feet wide, but the district court stated it is only two

feet wide.

     A sidewalk runs along Church Street in front of United

Methodist.   Plaintiffs demonstrated on this sidewalk on May 15,

2004.   One United Methodist parishioner became so enraged by

Plaintiffs’ speech that she started a minor physical altercation

with an SPF member.   The police became involved, but there is no

evidence that anyone was ever charged with any sort of crime in

connection with the incident.

     Things came to a head on February 12, 2005, when Plaintiffs

were demonstrating along Highway 165 in the southeast corner of

the intersection with Church Street.       State Trooper John Wiles

                                   4
(“Wiles”) passed by and contacted the Columbia police department.

He said that he witnessed several SPF members either standing on

the white fog line or on the highway itself and asked that the

Columbia police move the demonstrators back from the road.     The

police department had also previously received complaints from

United Methodist about Plaintiffs standing on its property.

     Several Columbia police officers, including Miles,

responded.    The DVD of the events that followed is only a few

minutes long and begins after the police officers arrived at the

scene.   There appear to have been fewer than ten demonstrators

that day, but one was holding a sign depicting an aborted baby.

Some demonstrators were standing on United Methodist’s property,

although it is unclear if they had been standing there the entire

time or had moved there after three police cars parked on the

shoulder.

     Miles told the demonstrators that they had five minutes to

get off the property and leave.    When Russell began to argue with

him, Miles stated, “This is the church property.     They don’t want

you here.    And this is state’s property.   They don’t want you

here.”   He also stated, “You are disrupting everybody.”    When

Russell continued to argue that they had a right to be on public

property, Miles arrested him.    It appears Russell may have been

standing on the shoulder at that time, but the DVD evidence is

not conclusive.    While arresting Russell, Miles turned to the

remaining demonstrators and asked “All of y’all want to go, too?”

                                  5
Miles further told the demonstrators that “[y]ou cannot picket,

boycott on State property or right-of-way” and to “[p]ut that

sign away and y’all get off this parking lot or I will arrest

every one of you.”   The demonstrators then left.

     Miles’s affidavit of probable cause for Russell’s arrest

states that Miles “approached the group and advised them that

they were causing a disturbance with their actions, and pictures

and that [sic] were on the state right of way, and that they

needed to leave the area . . . The group didn’t have any permit

to be on the right of way, and they were to [sic] close to the

flashing red beacon (red light) . . . .”   Russell was charged

with resisting an officer (LA. REV. STAT. ANN. § 14:108, the

“Resisting statute”), stopping or standing in specified areas

(LA. REV. STAT. ANN. § 32:143, the “Standing statute”), and

demonstrating without a permit (LA. REV. STAT. ANN. § 14:326, the

“Permit statute”).   No mention is made of what happened to these

charges, but Russell spent two days in jail as a result.

     Plaintiffs’ attorneys wrote several letters to Columbia

officials arguing that the police officers’ actions violated

Plaintiffs’ First Amendment rights.   They asked for an apology,

damages, attorneys’ fees, and a guarantee that Columbia would let

Plaintiffs peacefully demonstrate in the future.    Columbia’s

attorneys responded that Plaintiffs had peacefully demonstrated

before and were welcome to return and demonstrate in accordance

with reasonable time, place, and manner restrictions.    Columbia

                                 6
noted that, on February 12, 2005, SPF members were on private

property, in a construction zone, and within twenty feet of a

traffic light.    Columbia further asserted that a demonstration at

that same location would require a permit pursuant to Louisiana

law.

       Dissatisfied with this response, Plaintiffs filed suit in

federal court against Columbia on March 22, 2005, bringing claims

under 42 U.S.C. § 1983.    Plaintiffs asserted that Columbia’s

actions violated their First Amendment rights to free exercise of

religion, free speech, and free assembly.    They sought nominal

damages, declaratory relief that the application of the

Resisting, Standing, and Permit statutes was unconstitutional,

injunctive relief that would enable them to continue

demonstrating, and attorneys’ fees under 42 U.S.C. § 1988.    On

March 23, 2005, the district court entered a Temporary

Restraining Order, prohibiting Columbia from interfering with

Plaintiffs’ First Amendment rights and setting a preliminary

injunction hearing for April 1, 2005.

       On May 5, 2005, the district court entered a preliminary

injunction that the three statutes under which Russell was

arrested did not apply to SPF’s activities.    However, the

district court found that two other statutes (LA. REV. STAT. ANN.

§§ 14:97 & 48:21) could possibly apply to Plaintiffs’ conduct.

Section 14:97 prohibits obstructing a highway of commerce, and

section 48:21 defines the functions of the Louisiana Department

                                  7
of Transportation and Development to include maintaining the

public highways.   The district court found that these two

statutes prevented Plaintiffs from establishing an unfettered

right to demonstrate on the corner of their choosing.    Therefore,

while the district court enjoined Columbia from enforcing the

three inapplicable statutes against Plaintiffs and from

unconstitutionally interfering with Plaintiffs’ First Amendment

rights, the district court determined that Plaintiffs had not met

their burden of demonstrating a likelihood of success on the

merits of their First Amendment claim, because their conduct

could be regulated by sections 14:97 and 48:21.

     On May 21, 2005, Coleman and Russell, along with others,

preached and held signs on the sidewalk along Highway 165 near

the intersection of Pearl Street.    The police told them that they

could not protest within twenty-five feet of the intersection,

nor could they stand in the blocked-off portion of the

intersection, despite the fact that other pedestrians used those

areas.4   According to Columbia, the police were simply trying to

move the protesters back a “mere few feet” due to unusually heavy

traffic that day as a result of a local festival.   Plaintiffs

assert they were ordered to move forty feet away.   When the SPF

members refused to move, Coleman was arrested for violating the

     4
        The DVD shows that Pearl Street had been closed down on
one side to facilitate Columbia’s Riverboat Festival, permitting
pedestrians to walk down Pearl Street without interrupting
traffic.

                                 8
Resisting Statute by “congregation with others on a public street

and refusal to move on when ordered by the officer.”     See LA.

REV. STAT. ANN. § 14:108.   Russell was arrested for assaulting a

police officer when he was forcefully removed from standing near

the intersection.    There is no mention made of what happened to

these charges; however, in their briefing before this court,

Plaintiffs assert that the May 21 event is not part of the

instant lawsuit.    We include mention of it here because the

district court relied on the events of May 21 in its summary

judgment order.

     On January 25, 2006, the district court entered its order on

the parties’ cross-motions for summary judgment.     The district

court determined, after reviewing the DVD of the May 21, 2005

demonstration, that the officers’ actions were taken only to move

the Plaintiffs back from the highway for safety reasons and were

not motivated by Plaintiffs’ speech.     The district court held

that the officers were permitted to take these actions based on

sections 14:97 and 48:21, the two statutes the district court

found applicable in its preliminary injunction ruling.

Therefore, the district court concluded that Plaintiffs had not

established a First Amendment violation.     Consequently, the

district court dismissed Plaintiffs’ case and dissolved the

preliminary injunction.     The district court also ruled that

Plaintiffs’ partial victory with respect to the preliminary

injunction did not entitle them to attorneys’ fees pursuant to 42

                                   9
U.S.C. § 1988.   Plaintiffs have appealed.

                          II. JURISDICTION

     We have jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1291, because Plaintiffs are appealing the final judgment of

the district court.    See Morris v. Equifax Info. Servs., L.L.C.,

457 F.3d 460, 464 (5th Cir. 2006) (acknowledging appellate

jurisdiction under § 1291 to review grant of summary judgment).

                       III. STANDARD OF REVIEW

     We review a district court’s order granting summary judgment

de novo.   Id.   Summary judgment is appropriate when, after

considering the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits, “there is no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.”      FED. R. CIV. P.

56(c); Bulko v. Morgan Stanley DW, Inc., 450 F.3d 622, 624 (5th

Cir. 2006).   A genuine issue of material fact exists when the

evidence is such that a reasonable jury could return a verdict

for the non-movant.    Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).   In considering a summary judgment motion, all

inferences drawn from the underlying facts must be viewed in the

light most favorable to the non-movant.       Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

                           IV.   DISCUSSION

     On appeal, Plaintiffs assert that the evidence shows that


                                  10
Columbia engaged in content-based discrimination against them

when its police officers threatened Plaintiffs with arrest on

February 12, 2005.   Plaintiffs argue that the district court

erred by not applying the correct standard to their First

Amendment claims and in failing to even reach the constitutional

issues.   Columbia counters that there is no evidence of content-

based discrimination and that its officers’ actions were

appropriate.

     Before we begin our analysis, we first make clear the

conduct at issue in this case.   Because Plaintiffs state in their

briefing that the May 21, 2005, events are not part of this

lawsuit, we concern ourselves only with the events on February

12, 2005.   On that day, the evidence, taken in the light most

favorable to Plaintiffs, shows that Plaintiffs’ First Amendment

rights were restricted when Columbia’s police officers threatened

to arrest Plaintiffs if they did not leave the demonstration.5

“The threat of sanctions may deter [the exercise of First


     5
        We do not consider Russell’s arrest to be a First
Amendment injury to Plaintiffs, because SPF, as an organization,
lacks standing to seek relief for injuries to a single member.
See Self-Ins. Inst. of Am., Inc. v. Korioth, 53 F.3d 694, 695-96
(5th Cir. 1995) (“Though an association may have standing to seek
‘a declaration, injunction, or some other form of prospective
relief’ on behalf of its members, it does not enjoy standing to
seek damages for monetary injuries peculiar to individual members
where the fact and extent of injury will require individualized
proof.”); O’Hair v. White, 675 F.2d 680, 692 (5th Cir. 1982) (en
banc) (finding organization lacked standing to pursue one
member’s due process and equal protection claims or member’s
request for an injunction specific to her).

                                 11
Amendment rights] almost as potently as the actual application of

sanctions.”   NAACP v. Button, 371 U.S. 415, 433 (1963); see also

Aebisher v. Ryan, 622 F.2d 651, 655 (2d Cir. 1980) (“Where the

use of coercive power is threatened, First Amendment rights may

be violated by the chilling effect of governmental action that

falls short of a direct prohibition against speech.”).   Further,

Columbia does not dispute that Plaintiffs were exercising their

free speech, religion, and assembly rights by demonstrating that

day.   Plaintiffs have, thus, created a fact issue that their

First Amendment rights were restricted on February 12, 2005.

Therefore, we must now determine whether such a restriction was

in violation of the First Amendment by considering the

constitutional standards under which we measure Columbia’s

conduct.




                                12
A.    First Amendment Standards

      Plaintiffs have brought claims of free speech, free exercise

of religion, and free assembly.    Although not identical, the

constitutional standards for speech, religion, and assembly are

similar.    Turning first to freedom of speech, we note that the

Supreme Court has set forth two separate tests to determine

whether a governmental restriction on speech violates the First

Amendment--strict scrutiny and intermediate scrutiny.    The key to

deciding which test to apply to the government’s conduct is

whether the restriction was content-based, in which case the

strict scrutiny test applies, or content-neutral, in which case

we apply intermediate scrutiny.

      Strict scrutiny, as applied to content-based restrictions of

speech, requires the government to show that the restriction at

issue is narrowly tailored to promote a compelling governmental

interest.    United States v. Playboy Entm’t Group, Inc., 529 U.S.

803, 813 (2000).    If a less restrictive alternative is available,

the governmental restriction cannot survive strict scrutiny.       See

id.   Intermediate scrutiny, on the other hand, requires the

government to demonstrate that: (1) the restriction is within the

constitutional power of the government; (2) the restriction

furthers an important or substantial governmental interest; (3)

the governmental interest is unrelated to the suppression of free

expression; and (4) the incidental restriction on First Amendment

freedoms is no greater than is essential to the furtherance of

                                  13
that interest.   United States v. O’Brien, 391 U.S. 367, 377

(1968); Horton v. City of Houston, 179 F.3d 188, 194 (5th Cir.

1999).   Courts often shorten this inquiry into whether the

restriction is narrowly tailored to serve a significant

government interest and leaves open alternative channels of

communication.   See Horton, 179 F.3d at 194.     In the context of

intermediate scrutiny, “narrowly tailored” does not require that

the least restrictive means be used.      Ward v. Rock Against

Racism, 491 U.S. 781, 798 (1989).      Rather, so long as the

restriction promotes a substantial governmental interest that

would be achieved less effectively without the restriction, it is

sufficiently narrowly tailored.     Id. at 799.

     The principal inquiry in determining whether a restriction

is content-based or content-neutral, and thus whether strict or

intermediate scrutiny should be applied, is whether the

government has adopted the restriction of speech because of the

government’s disagreement with the message conveyed.      Id. at 791.

“A regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental effect

on some speakers or messages but not others.”      Id. (holding a

regulation is content-neutral as long as it is justified without

reference to the content of the regulated speech).      Consequently,

in order to determine which test should be applied to Columbia’s

restriction of Plaintiffs’ speech--strict scrutiny or


                                  14
intermediate scrutiny--we must decide whether Columbia’s

restriction was based on the content of Plaintiffs’ speech or

rather was content-neutral.

     The constitutional tests for whether governmental action

unconstitutionally infringes on the free exercise of religion and

freedom of assembly are similarly dependent on whether the

restriction was motivated by the nature of the conduct that is

restricted.   With respect to the free exercise of religion, if

the object of a law is to infringe upon or restrict practices

because of their religious motivation, the law is invalid unless

it is justified by a compelling interest and is narrowly tailored

to advance that interest.     Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520, 533 (1993).    In other words, a

restriction of religious practices because of their religious

nature must survive strict scrutiny.     See id. at 546.   However, a

law that is neutral and of general applicability need not be

justified by a compelling governmental interest, even if that law

has the incidental effect of burdening a particular religious

practice.   Id. at 531.   Thus, the motivation for the restriction

on the exercise of religion must be established before the

restriction can be legally analyzed.6

     Likewise, the Supreme Court has held that an infringement on


     6
        Although the free exercise test is typically framed in
terms of analyzing a “law,” its analysis can be applied to
Columbia’s actions as a governmental authority.

                                  15
the right to associate for expressive purposes can be justified

by regulations adopted to serve compelling state interests,

unrelated to the suppression of ideas, that cannot be achieved

through means significantly less restrictive of associational

freedoms.   Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984); see

also La. Debating & Literary Ass’n v. City of New Orleans, 42

F.3d 1483, 1498 (5th Cir. 1995) (applying strict scrutiny to

restriction on associational freedoms).   Therefore, the

restriction on freedom of assembly must also be unrelated to the

purpose of the assembly.

     Given the above tests for violations of the First Amendment

rights of free speech, free exercise of religion, and free

assembly, it is clear that the motivation for the restriction at

issue is key to determining which constitutional standard should

be applied.   For purposes of this opinion, we will use the terms

“content-based” and “content-neutral” to describe the possible

motivations of Columbia’s officers, although the tests for free

exercise of religion and free assembly do not generally use those

terms.   Once we determine whether the restriction was content-

based or content-neutral, we will know which constitutional

standards to apply to Columbia’s conduct.   We now consider the

reasons set out by Columbia to explain its officers’ actions and

whether Plaintiffs have created a genuine issue of material fact

that those were Columbia’s true reasons for restricting



                                16
Plaintiffs’ rights.7

B.   Whether Columbia’s Actions Were Content-Based or Content-
     Neutral

     Numerous content-neutral reasons have been put forward by

Columbia to justify its police officers’ actions on February 12,

2005.    Russell was arrested for violating the Resisting,

Standing, and Permit statutes, so those statutes could provide a

reason to threaten Plaintiffs with arrest.    During litigation,

Columbia argued that sections 14:97 and 48:21 of the Louisiana

Revised Statutes provided a justification for its actions.

Trespassing and general safety concerns have also been alleged.

If the evidence shows that these content-neutral reasons were

Columbia’s actual reasons, then we may apply intermediate

scrutiny.    If, however, Plaintiffs have created a genuine issue

of material fact as to whether these asserted reasons were

Columbia’s actual reasons or whether Columbia acted because of

the content of Plaintiffs’ demonstration, we must reverse and

remand for a determination of Columbia’s true motivations.    Only

then will it be clear whether strict scrutiny or a lesser form of


     7
        We note that municipal liability under 42 U.S.C. § 1983
must be premised on the policy or custom of the municipality or
the act of a policymaker. See Pembaur v. City of Cincinnati, 475
U.S. 469, 480-81 (1986); Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978). The parties have not raised or briefed this
issue; therefore, our focus in this case is on the actions of the
officers, which is what the parties have argued. But see Collins
v. City of Harker Heights, 503 U.S. 115, 123 (1992) (stating that
a municipality is not subject to liability under § 1983 by way of
respondeat superior).

                                 17
scrutiny applies.

     1.   Resisting, Standing, and Permit Statutes

     We turn first to the three statutes--Resisting, Standing,

and Permit--that the district court determined were inapplicable

to Plaintiffs’ conduct.   Columbia has not contested on appeal the

district court’s conclusion that the statutes were inapplicable;

however, we emphasize the fact that, as shown below, even taking

the officers’ allegations as true, Plaintiffs’ conduct could not

have violated the statutes.

     Section 14:108, the Resisting statute, provides that it is

an offense to intentionally interfere with an officer making a

lawful arrest, seizing property, or serving process.    Louisiana

courts have limited the reach of this statute to interference

with those actions alone.     State v. Huguet, 369 So. 2d 1331, 1333

(La. 1979); State v. Joseph, 759 So. 2d 136, 140 (La. Ct. App.

2000); State v. Green, 706 So. 2d 536, 539 (La. Ct. App. 1997).

Because Plaintiffs were not interfering with an arrest, seizure

of property, or service of process, the Resisting statute could

not have been applied to their actions.8

     The Standing statute, section 32:143, states that “[n]o

person shall stand, or park a vehicle” within fifteen feet of a

fire hydrant, within twenty feet of a crosswalk, or within twenty


     8
        Although the police officers did arrest Russell, the DVD
does not reflect, and Columbia does not contend, that Plaintiffs
interfered with that arrest in any way.

                                  18
feet upon the approach to any stop light.    Although Plaintiffs

were “standing” within these areas, “stand” is defined in section

32:1(71) as temporarily halting a vehicle.    Therefore, the

statute is inapplicable to human beings, such as SPF members, who

are standing in these areas.

     Finally, the Permit statute, section 14:326, requires groups

to obtain a permit before staging a parade, march, or

demonstration.   However, the statute only applies to parishes

with populations of at least 450,000.   LA. REV. STAT. ANN.

§ 14:326(C).   Caldwell Parish, in which Columbia is located,

clearly did not meet this population threshold; therefore,

Plaintiffs were not required to obtain a permit before

demonstrating in Columbia.

     As a result, Plaintiffs’ conduct, as alleged by Columbia’s

police officers, would not have resulted in the violation of any

of these statutes.   Consequently, there is a genuine issue of

material fact as to whether the officers were motivated to

restrict Plaintiffs’ First Amendment rights on the basis of these

statutes.   By this we are not saying that there is a fact issue

regarding the First Amendment anytime an individual’s rights are

restricted by application of a content-neutral statute and the

individual is subsequently determined to be not guilty of

violating that statute.   Nor are we holding that it is

appropriate to assume the officers were motivated by the content



                                19
of Plaintiffs’ demonstration just because Plaintiffs were not in

violation of the statutes.    Rather, we are simply stating that

the absence of any allegations by the officers that would have

supported a finding that Plaintiffs were violating the Resisting,

Standing, and Permit statutes creates a genuine issue of material

fact as to whether the officers were actually motivated to

restrict Plaintiffs’ demonstration on the basis of those

statutes.

     2.     Sections 14:97 and 48:21

     Columbia was able to successfully defend its actions on

February 12, 2005, to the district court on the basis of sections

14:97 and 48:21 of the Louisiana Revised Statutes.    Section 14:97

makes simple obstruction of a highway punishable by a fine,

imprisonment, or both.    Simple obstruction is defined as “the

intentional or criminally negligent placing of anything or

performance of any act on any railway, railroad, navigable

waterway, highway, thoroughfare, or runway of an airport, which

will render movement thereon more difficult.”    Section 48:21

states that the functions of the Louisiana Department of

Transportation and Development are “to study, administer,

construct, improve, maintain, repair, and regulate” the roads in

Louisiana.

     We make no determination whether Plaintiffs violated either

of these two statutes or whether the district court correctly



                                 20
interpreted them.    We do, however, hold that there is no evidence

that these statutes provided the basis for Columbia’s actions on

February 12, 2005.    In its order on the cross-motions for summary

judgment, the district court recognized that these statutes were

“not relied upon to remove” Plaintiffs.    (01/25/06 Dist. Ct.

Ruling at 8).    Instead, these statutes were first advanced by

Columbia after litigation commenced.    The district court erred in

using these statutes to create a content-neutral justification

for Columbia’s actions on February 12, 2005, without any evidence

that Columbia’s police officers actually relied on those statutes

on that day.    Therefore, Columbia’s motivation for restricting

Plaintiffs’ First Amendment rights remains a genuine issue of

material fact.

     3.   Trespassing

     Columbia also asserts that Plaintiffs were trespassing on

February 12, 2005.    Miles did state on the DVD that Plaintiffs

were not welcome on either United Methodist’s property or the

state’s property, indicating that he believed Plaintiffs were

trespassing.    To the extent Plaintiffs were standing on United

Methodist’s property, Plaintiffs do not contest that they could

be removed for trespassing.    See LA. REV. STAT. ANN. § 14:63.   The

same does not hold true for the paved shoulder, however.

Columbia points to no law that makes it a trespass to stand on

state property next to a highway.     In its opinion on Plaintiffs’



                                 21
preliminary injunction motion, the district court determined that

the paved portion of Highway 165 was “‘the archetype of a

traditional public forum.’”   (05/05/05 Dist. Ct. Op. at 9)

(citing Frisby v. Schultz, 487 U.S. 474, 480 (1988)).

Restrictions on demonstrations on the paved shoulder are thus

subject to analysis under the strict or intermediate scrutiny

standards, depending on whether the restriction was content-based

or content-neutral.   See Frisby, 487 U.S. at 481.9   Therefore,

whether Columbia’s restrictions on Plaintiffs’ demonstration were

content-based or content-neutral is still a fact question.

     4.   General Safety Concerns

     The district court stated in its order below that, after

reviewing the DVD of the May 21, 2005, incident, “the Court

concludes that the officers were not prohibiting the [SPF

members’] demonstration, but again, merely trying to move the

[SPF members] away from the intersection for the safety of

drivers as well as the [SPF members].”   (01/25/06 Dist. Ct.

Ruling at 9).   This conclusion was erroneous for several reasons.

     First, the motivations for the officers’ actions on May 21,

2005, say little, if anything, about the officers’ motivations on


     9
        Although not necessary to our decision, we note that the
DVD of the February 12, 2005, incident shows police cars parked
on the paved shoulder of Highway 165. As the cars were more than
two feet wide, this evidence appears to conflict with the
district court’s finding that the paved shoulder is only two feet
wide. The DVD suggests that the width of the paved shoulder
might vary, but it is, at the very least, a fact issue.

                                22
February 12, 2005.    Indeed, it is not clear that the same

officers were involved in each incident.

     Second, the DVD is far from conclusive evidence that the

officers were only concerned about the safety of drivers and

Plaintiffs on May 21.    The DVD shows that the officers claimed to

be relying on state law when they required Plaintiffs to stand

over twenty-five feet from the intersection of Highway 165 and

Pearl Street.   However, the district court had already ruled that

the Standing statute, section 32:143, did not apply to

Plaintiffs’ conduct and had preliminarily enjoined Columbia from

enforcing the statute against Plaintiffs.    Columbia has offered

no other justification for the twenty-five foot rule.     Further,

Coleman was arrested for violating section 14:108, the Resisting

statute, but, again, there is no evidence on the DVD that he

interfered with an officer making an arrest, seizing property, or

serving process.     See Huguet, 369 So. 2d at 1333.   The district

court had also enjoined the use of that statute against

Plaintiffs.   Finally, it is a fact question whether the traffic

conditions were hazardous enough to require Plaintiffs to refrain

from standing near the intersection.    Indeed, other pedestrians

were permitted to walk through the areas in which Plaintiffs

wished to stand.   Therefore, the police officers’ motivations on

May 21, 2005, are far from clear.

     Columbia tries to analogize its case to one considered by

the Eighth Circuit in Frye v. Kansas City Missouri Police

                                  23
Department, 375 F.3d 785 (8th Cir. 2004).      In Frye, the

plaintiffs demonstrated against abortion by standing on the side

of a road holding signs, some of which contained pictures of

mutilated fetuses.     Id. at 788.    Following complaints from

drivers, the police gave the plaintiffs the choice of either

relocating to a different portion of the road or taking down the

graphic signs.   Id.    Several demonstrators were arrested under

the loitering ordinance when they refused to obey.       Id.   The

Eighth Circuit found no First Amendment violation.      The court

stated that the officers’ actions were not motivated by the

content of the signs, but rather out of a concern for public

safety.   Id. at 790 (holding that the plaintiffs’ message was not

suppressed, but only regulated as to time, place, and manner).

     The facts in the instant lawsuit are distinguishable from

those in Frye.   First, it is unclear how the Eighth Circuit

arrived at the conclusion that the officers’ actions were not

motivated by the content of the signs; therefore, the evidence

may be markedly different.    Second, the officers in Frye did not

completely stop the demonstration, but permitted it to continue

in a different place or with different signs.10      Here, there is

no evidence that on February 12, 2005, Columbia gave Plaintiffs

any option other than to stop the demonstration entirely.         If


     10
        We do not necessarily hold that the approach taken by
the officers in Frye would be acceptable in this case. Each case
must be decided on its own facts.

                                     24
this is the case, it is questionable whether the cessation of the

demonstration altogether was narrowly tailored.

     The Seventh Circuit encountered a similar situation in

Ovadal v. City of Madison, 416 F.3d 531 (7th Cir. 2005).    In

Ovadal, the plaintiff, Ralph Ovadal, demonstrated against

homosexuality by holding up signs on pedestrian overpasses.      Id.

at 533-34.    Responding to complaints by drivers that the signs

were causing traffic problems, police officers eventually told

Ovadal that he was no longer allowed to display his signs on

pedestrian overpasses, citing the disorderly conduct statute.

Id. at 534.    The Seventh Circuit determined there was a genuine

issue of material fact as to whether Ovadal’s First Amendment

rights had been violated.    Id. at 537-38.   The court found fact

issues as to whether the ban on Ovadal’s actions was content-

neutral, whether it was narrowly tailored, whether the city would

have banned all demonstrations on pedestrian overpasses

regardless of content, whether a rule that banned demonstrators

if their signs caused traffic problems could even be applied in a

content-neutral manner, and whether the ban was really just aimed

at Ovadal.    Id.11


     11
        On remand, the district court in Ovadal held a bench
trial and found that the restriction was content-neutral and
satisfied strict scrutiny. Ovadal v. City of Madison, No. 04-C-
322-S, 2005 WL 3434402, at *1 (W.D. Wis. Dec. 13, 2005). The
Seventh Circuit affirmed the decision, Ovadal v. City of Madison,
469 F.3d 625, 631 (7th Cir. 2006), and Ovadal has filed a
petition for certiorari with the Supreme Court.

                                 25
     Ovadal is similar to the instant case in that there is

simply too much uncertainty about the motivations of the

governmental action to determine whether a First Amendment

violation took place.   Here, as discussed above, the reason for

the police officers’ actions on February 12, 2005, is a fact

question.   Further, Miles, the officer who threatened Plaintiffs

with arrest, had previously made comments indicating he did not

approve of Plaintiffs’ graphic signs.   When combined with the

lack of undisputed evidence as to why Plaintiffs’ First Amendment

rights were restricted, there is a fact issue regarding whether

the officers were actually motivated by the content of

Plaintiffs’ demonstration, which prevents summary judgment on the

issue of whether the restriction was content-based or content-

neutral.    Without knowing the motivation for the restriction, we

cannot determine which test to apply--strict scrutiny or a lesser

level of scrutiny.   Summary judgment on this issue was, thus,

inappropriate, and we must reverse the district court’s decision

to grant Columbia’s motion for summary judgment; however, we will

affirm the district court’s decision to deny Plaintiffs’ motion

for summary judgment, as there are fact issues in this case.




                                 26
C.   Other Relief

     Finally, Plaintiffs requested, and were denied, declaratory

relief, injunctive relief, and attorneys’ fees.   To the extent

Plaintiffs seek a declaration that their First Amendment rights

were violated by Columbia’s restriction of their demonstration on

February 12, 2005, we must reverse for the above-stated reasons.

If Plaintiffs are seeking a declaration that they may demonstrate

in Columbia in the future and injunctive relief to that effect,

we also reverse so that the district court may make this ruling

after determining whether Plaintiffs’ First Amendment rights are

actually being infringed.

     As for attorneys’ fees, 42 U.S.C. § 1988 provides that

courts, in their discretion, may award attorneys’ fees to

prevailing parties in § 1983 cases.    Because the prevailing party

is yet unknown in this case, we also reverse the district court’s

ruling on attorneys’ fees.

                             V. CONCLUSION

     For the foregoing reasons, we REVERSE the order of the

district court to the extent it granted Columbia’s motion for

summary judgment, AFFIRM the order to the extent it denied

Plaintiffs’ motion for summary judgment, and REMAND for further

proceedings consistent with this opinion.

     REVERSED in part, AFFIRMED in part, and REMANDED.




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