                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-4723
RALPH OVADAL,
                                           Plaintiff-Appellant,
                              v.

CITY OF MADISON, WISCONSIN,
RICHARD WILLIAMS,
CHRIS PAULSON, and
PATRICK GRADY,
                                        Defendants-Appellees.
                        ____________
          Appeal from the United States District Court
             for the Western District of Wisconsin.
            No. 04 C 322—John C. Shabaz, Judge.
                        ____________
 ARGUED SEPTEMBER 22, 2006—DECIDED NOVEMBER 20, 2006
                        ____________


  Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
  KANNE, Circuit Judge. The plaintiff sued the City of
Madison and various officers of the Madison Police De-
partment (collectively “Madison”) under 42 U.S.C. § 1983
alleging that his constitutional rights of free speech and
freedom of religion were infringed. The district court
granted summary judgment to Madison in a Memorandum
and Order dated November 8, 2004. We remanded so that
the district court could develop some aspects of the factual
record. Ovadal v. City of Madison, 416 F.3d 531 (7th Cir.
2005). After a bench trial, the district court entered judg-
2                                                    No. 05-4723

ment in favor of the defendants. Ovadal v. City of Madison,
No. 04-C-322-S, 2005 WL 3434402 (W.D. Wis. Dec. 13,
2005). The plaintiff appeals. We affirm.


                          I. HISTORY
  Mr. Ovadal began this, his most recent foray into the
federal courts, after events that occurred in Madison in the
Fall of 2003. On September 3 and October 11 of that year he
organized two small demonstrations to express his opposi-
tion to homosexuality. His chosen fora for these demonstra-
tions were overpasses where city sidewalks crossed the
Madison Beltline freeway.1 On both occasions the demon-
strations had a noticeable effect on traffic below. On both
occasions the Madison police arrived and forced Ovadal to
move from the overpasses on the grounds that his activities
were causing a traffic hazard for the motorists below him.
Ovadal brought suit seeking damages as well as declaratory
and injunctive relief.
  As we previously held in this case, Ovadal’s demonstra-
tions are well within the core of the types of speech and acts
that are protected by the First Amendment and his chosen
location is a traditional public forum. Ovadal, 416 F.3d at
536. Madison can make time, place, or manner restrictions
on such speech only if they are content-neutral, narrowly-
tailored to serve a significant government interest, and
leave open ample alternative means of communication. Id.
Alternatively, Madison can make content-based restrictions
on such speech only if necessary to accomplish a compelling
interest and narrowly tailored to that end. Id. The primary



1
  The Beltline is a restricted access freeway. In the area where
Ovadal was protesting, the average speed of the traffic exceeds 60
miles per hour, with some traffic traveling as fast as 85 miles per
hour.
No. 05-4723                                                   3

issue of contention between the parties on remand and on
this appeal has been whether Madison’s actions were
content-neutral.
  Ovadal argues that a policy that restricts speech based on
its effect on traffic is not content-neutral. Arguing back-
wards, he reasons that traffic congestion and motor-
ist complaints are a function of motorists’ reactions to his
message, and that motorists will react to create a traffic
hazard when confronted with a message that they do not
accept. This, in Ovadal’s view, gives the motorists a “heck-
ler’s veto” over his protected speech. See, e.g., Forsyth
County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992).
  Madison, however, contends that the decisions to remove
Ovadal from the overpasses were not, even indirectly,
driven by the content of his speech. The defendants contend
that the police responded to a traffic hazard that was
caused not by the content of Ovadal’s signs but by the fact
that he was creating a “spectacle” over heavy high-speed
traffic. Madison argues that regardless of whether the first
person who looked up at the band of protesters and tapped
their brakes agreed with Ovadal’s message or abhorred it,
that person set off a chain reaction: traffic became increas-
ingly more dangerous and many drivers were left angry.
  The district court conducted a bench trial to resolve this
factual dispute and entered judgment in favor of Madison.
The court specifically entered findings of fact that the traffic
congestion was not caused by (or a derivative of) the content
of Ovadal’s speech, but rather was caused by the presence
of the band of protesters and motorists’ reactions to their
presence. Ovadal, No. 04-C-322-S, 2005 WL 3434402, at *1-
2 (W.D. Wis. Dec. 13, 2005). The court entered conclusions
of law that Madison’s actions were content-neutral, were
necessary to serve the compelling government interest of
motorist safety, and left ample alternatives to Ovadal. Id.
at *2-3.
4                                                No. 05-4723

   Seven days after the bench trial, Madison Ordinance 05-
00193 took effect, and amended the compiled Madison City
Ordinances to prohibit any person to “display, place, erect,
post, maintain, install, affix, or carry any street graphic,
including a hand-carried sign” on highway overpasses
such as those at issue in this lawsuit. Madison City Ord.
§ 31.04(6)(m). The ordinance bans any such display,
provided that it is visible from the highway. Id. The ban
is limited to freeways and expressways, or controlled access
highways with a speed limit greater than forty miles per
hour. Id.
  On appeal, Ovadal seeks to have “Madison’s traffic hazard
policy” declared unconstitutional and enjoined from en-
forcement, and seeks damages for the two occasions that
he was forced off the bridges. He alleges that there is either
an unwritten policy that is directed at him—a “no-Ovadals-
on-overpasses rule”—or alternatively that there is a policy
that leaves the existence of a traffic hazard to the judgment
of a police officer. This policy, he argues, gives too much
discretion to the police, is incapable of content-neutral
application, is not narrowly tailored, and does not serve a
compelling state interest.


                       II. ANALYSIS
A. Declaratory and Injunctive Relief
  The Constitution gives the federal courts jurisdiction over
“cases” and “controversies.” U.S. Const. Art. III § 2, cl. 1.
When circumstances change during litigation such that
there is no longer any case or controversy, the case is moot.
Powell v. McCormack, 395 U.S. 486 (1969). If a defendant
voluntarily ceases the behavior that is complained of, the
case can be rendered moot “if subsequent events [make] it
absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. 528 U.S. 167, 189
No. 05-4723                                                  5

(2000) (quoting United States v. Concentrated Phosphate
Exp. Ass’n, 393 U.S. 199, 203 (1968)).
  At its heart, Ovadal’s request for declaratory and injunc-
tive relief relies on the claim that Madison had an unwrit-
ten policy that impermissibly burdened his First Amend-
ment rights by prohibiting protests when, in the opinion of
a police officer, the protests were causing a traffic hazard.
He bases this belief on the fact that on the two occasions
when he was forced to leave the pedestrian overpasses, the
officers told him that he was being forced to move because
he was causing a traffic hazard. His constitutional com-
plaint is that this unwritten policy leaves far too much to
the discretion of the police officer. He notes that what might
seem to be a traffic hazard to one officer might not be for
another. He also argues that by restricting speech on the
basis of the observable effect on motorists, the motorists
might be given a heckler’s veto.
  As we previously noted, “[i]f [Madison] had a policy that
prohibited not just Ovadal’s, but all protests and all
signs on all Beltline overpasses” the restriction would be
“clearly content-neutral.” Ovadal, 416 F.3d at 536. By
passing § 31.04(6)(m), the city appears to have taken our
previous decision to heart. The ordinance itself is not before
the court: the only significance of the ordinance is the effect
that it has on any alleged unwritten policy. If the ordinance
now replaces the behavior that is the subject of the com-
plaint, making the alleged unconstitutional behavior
effectively impossible, the request for forward-looking relief
is moot. To put a finer edge on it: the only way that the
request for declaratory or injunctive relief would not be
rendered moot by the ordinance would be if Ovadal could
point to some subset of expressive behavior that is currently
allowed by the ordinance but would be banned by the
alleged traffic hazard policy.
  The parties agreed at oral argument that the behavior
that started this lawsuit—carrying signs over the Beltline
6                                               No. 05-4723

freeway—is now strictly banned regardless of the time of
day, the effect on the motorists below, or the noticeable
effects on traffic safety. At oral argument, Ovadal claimed
that the ordinance does not ban non-sign protests, nor does
it ban motorist-distracting signs from bridges over other,
slower speed, roads in Madison. Ovadal posits that these
two activities, which are not prohibited by the ordinance
but would be subject to the alleged traffic hazard policy,
show that the case or controversy is still alive. But those
types of activities are not before the court in this appeal.
There has been no showing that Madison has ever pre-
vented or would prevent Ovadal from marching without
signs over any sidewalk or bridge in Madison. Likewise,
there is no evidence that Ovadal has ever been asked to
move when demonstrating from a bridge over a slow-speed
roadway. Such restrictions, if they existed, would raise
significant constitutional questions. But we are now three
years into this litigation and the evidence, the district
court’s decision, and the briefs and arguments made here on
appeal have not been directed at those questions or those
types of behavior. If there are such instances, they are
issues for a different lawsuit. It would be an advisory
opinion in its worst form to use this forum to rule on the
constitutionality of an alleged unwritten policy that might
be used to prevent behavior that has never been the subject
of the litigation at hand. Therefore, with respect to any
unwritten traffic hazard policy, the request for declaratory
and injunctive relief has been rendered moot by the passage
of the ordinance.


B. Damages
  However, the passage of the ordinance is not dispositive of
the request for damages for any constitutional violation
that might have been suffered in the past. The case comes
to us on appeal after a bench trial: we defer to the district
No. 05-4723                                                 7

court’s findings of facts unless clearly erroneous, and will
review questions of law de novo. Trustmark Ins. Co. v. Gen.
& Cologne Life Re of Am., 424 F.3d 542, 551 (7th Cir. 2005).
There are two questions before us: whether Madison
violated Ovadal’s constitutional rights on the two occasions
in the Fall of 2003 when he was forced off the overpasses,
and whether Madison violated his constitutional rights by
effectively banning him from other similar protests through
an alleged unwritten policy.
  With respect to the two discrete incidents in September
and October, the district court heard the testimony of eight
witnesses and received sixteen exhibits. Without recounting
the entirety of the evidence, we can summarize it as follows:
Ovadal and his long-time companion Mike Foht testified
that they did not see any noticeable effect on traffic, but
several police officers—including a deputy sheriff who is not
a defendant in the present suit— testified that traffic was
impeded and dangerous. There was conflicting testimony
about whether the accidents and reported near-accidents
were the result of general curiosity about the activities of
the protesters or whether the accidents were being caused
by drivers’ reactions to the message that Ovadal and Foht
were displaying about homosexuality. The court received
evidence about the number of calls placed to 911 regarding
the traffic, and the nature of the complaints that those
callers made.
  In the end, the district court faced two possible factual
scenarios. By one view of the evidence, Ovadal’s message
angered drivers who then reacted and were distracted from
the task of driving safely, resulting in a dangerous situation
that Madison needed to address. By another view of the
evidence, Ovadal’s presence on that day and under those
driving conditions created a “spectacle” that led some
drivers to be distracted from the task of safely navigating
the Beltline and their distraction led to an escalating
situation of near-accidents and anger at the traffic con-
8                                               No. 05-4723

gestion. As we noted on remand, if the findings of fact
supported the first view, then the drivers were simply
rabble, fuming at the content of Ovadal’s rabble-rousing
speech, and “[t]he police must permit the speech and control
the crowd; there is no heckler’s veto.” Ovadal, 416 F.3d at
537 (quoting Hedges v. Wauconda Cmty. Unit Sch. Dist. No.
118, 9 F.3d 1295, 1299 (7th Cir. 1993)).
  The court entered findings of fact that on the two dates in
question the traffic safety problems were not caused by the
content of the message on the signs that the protesters
carried. Ovadal, No. 04-C-322-S, 2005 WL 3434402, at *1-2
(W.D. Wis. Dec. 13, 2005). Thus, the court concluded,
Madison’s decision to move the protesters from the bridge
was not the result of the content of the speech. The evidence
and testimony could certainly have supported such a finding
of fact. “In weighing direct and circumstantial evidence, the
trier of fact plays a particularly significant role as the
arbiter of credibility: [W]e defer to the [trier of fact’s]
determination of witnesses’ credibility.” United States v.
Balzano, 916 F.2d 1273, 1285 (7th Cir. 1990) (citations and
quotations omitted). Because the district court’s findings of
fact are not clearly erroneous, we will not disturb them.
  The final question for us is whether Ovadal’s constitu-
tional rights were violated by an alleged unwritten and
widespread policy that effectively prevented him from
engaging in protected speech. When we remanded the
case, we noted that there was “no question that Ovadal has
been completely banned from all Beltline pedestrian
overpasses in the Madison area.” Ovadal, 416 F.3d at 537.
The questions on remand, or so we thought, were whether
the effective prohibition was capable of content-neutral
application and whether the city could have imposed a
ban on protests occurring on certain days of the week,
during certain times, or depending on traffic conditions. Id.
at 537-38.
No. 05-4723                                                   9

  When we last considered this case, it was on appeal
after a grant of summary judgment in favor of Madison.
Accordingly, we viewed all facts in the light most favor-
able to Ovadal. Id. at 535. With the benefit of a trial we now
have additional facts that cast doubt on the version of
events that the summary judgment proceedings portrayed.
For example, testimony at trial indicated that Ovadal had
been on Beltline overpasses with signs at least six times
before the dates in question, and had interacted with the
Madison police on several of those occasions without any
restriction on his activities. Tr. Dec. 12, at 17, 68-69. The
only other witness that Ovadal called, his frequent part-
ner in these demonstrations Mike Foht, testified that he
had been on Beltline overpasses between ten and twelve
times in the years prior to the incidents in question and
despite frequent interactions with Madison police had never
been forced to move. Tr. Dec. 12, at 92-93. We find it
particularly telling that on November 8, 2003 (after the
events that led Ovadal to file this suit in which he
alleges that he was “chilled and deterred” from exercising
his First Amendment rights) Ovadal and Foht were back on
a bridge over the Beltline. Tr. Dec. 12, 79-80. Once again,
they interacted with a Madison police officer, and the officer
informed them that they were free to continue their protest.
Id. The facts, no longer viewed in a light most favorable to
Ovadal, do not support the allegations that there was ever
any absolute ban on Ovadal protesting from bridges or that
he was chilled and deterred from exercising his rights.


                      III. CONCLUSION
  In summary, the passage of the city ordinance has
made any claim for declaratory and injunctive relief moot
because the alleged violations cannot be repeated. We defer
to the district court’s findings of fact that the actions of the
defendants on the specific dates in question were not
content-based restrictions on speech. The evidence at trial
does not support any allegation that there was a general
10                                           No. 05-4723

unwritten policy that placed content-based prohibitions on
Ovadal’s speech. The record indicates that Ovadal was not
chilled or deterred from exercising his First Amendment
rights. Therefore, there has been no constitutional harm
cognizable under 42 U.S.C. § 1983. Accordingly, the judg-
ment of the district court is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—11-20-06
