Case 2:21-cv-02019-PKH Document 32 Filed 01/26/22 Page 1 of 15 PageID #: 327
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF ARKANSAS
`FORT SMITH DIVISION
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`SONS OF THE SOUTHERN CROSS, INC.
`and JAMES BIBLE
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`v.
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`JOE HURST, in his official capacity as
`Mayor of Van Buren, Arkansas; OLD
`TOWN MERCHANTS ASSOCIATION,
`INCORPORATED OF VAN BUREN; and
`CITY OF VAN BUREN ARKANSAS
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`No. 2:21-CV-02019
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` PLAINTIFFS
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` DEFENDANTS
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`OPINION AND ORDER
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`This is a 42 U.S.C. § 1983 action claiming a violation of Plaintiffs’ First Amendment rights
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`as incorporated against the states by the Fourteenth Amendment. Plaintiffs seek damages against
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`Defendants Joe Hurst and the City of Van Buren Arkansas (collectively, “the City”) and injunctive
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`relief against the City and Defendant Old Town Merchants Association, Incorporated of Van
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`Buren (“TOTMA”1). Before the Court is the City’s motion (Doc. 22) for summary judgment. The
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`City filed a brief (Doc. 23) and statement of facts (Doc. 24) in support. Plaintiffs filed a response
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`(Doc. 27), brief (Doc. 28), and statement of facts (Doc. 29) in opposition. The City filed a reply
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`(Doc. 30). The motion for summary judgment will be granted.
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`I.
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`Standard of Review
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`On a motion for summary judgment, the Court views the record in the light most favorable
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`to the nonmoving party, grants all reasonable factual inferences in the nonmovant’s favor, and
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`grants summary judgment “if the movant shows that there is no genuine dispute as to any material
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`fact and the movant is entitled to summary judgment as a matter of law.” Fed. R. Civ. P. 56(a);
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`1 “TOTMA” stands for “The Old Town Merchants Association,” the name by which
`Defendant Old Town Merchants Association, Incorporated of Van Buren is commonly known.
`1
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`Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016). Facts are material
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`when they can “affect the outcome of the suit under the governing law.” Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes are genuine when “the evidence is such that a
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`reasonable jury could return a verdict for the nonmoving party.” Id. “While the burden of
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`demonstrating the absence of any genuine issue of material fact rests on the movant, a nonmovant
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`may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to
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`raise a genuine issue for trial.” Haggenmiller, 837 F.3d at 884 (quotations omitted).
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`II.
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`Facts
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`For many years, TOTMA has applied for and received a permit from the City of Van Buren
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`to hold an evening Christmas parade on Main Street in downtown Van Buren, Arkansas.
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`Historically, parade participants constructed parade floats and drove them down a portion of Main
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`Street as parade attendees lined the street. TOTMA would place temporary roadblocks on cross
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`streets and Van Buren police officers directed traffic away from and around the parade.
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`Plaintiff James Bible has lived in Crawford County, Arkansas for approximately fifteen or
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`twenty years. He is the founder, president, and national commander of Plaintiff Sons of the
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`Southern Cross, Inc., a national Confederate heritage organization headquartered in Crawford
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`County. Plaintiffs have participated in the TOTMA Christmas parade for approximately 10 years.
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`During that time, Plaintiffs regularly (and perhaps always) flew a Confederate battle flag2 from
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`their float.
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`In January 2020 TOTMA received a permit from the City for its 2020 Christmas parade,
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`2 Throughout litigation the attorneys and most witnesses have referred to this flag as the
`Confederate flag, perhaps because it is the most popularly known flag associated with the
`Confederate States of America. Unless otherwise noted, the Court similarly identifies this flag as
`the Confederate flag.
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`2
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`to be held on December 12, 2020. The City added the parade to the calendar of events on the
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`City’s website. As various public health responses such as masking and social distancing were
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`deployed in 2020 in response to the COVID-19 pandemic, TOTMA decided to hold a “reverse
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`Christmas parade” in which floats would remain stationary along the Main Street parade route and
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`parade attendees would drive down Main Street to view the stationary floats in the evening.
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`TOTMA board member Lindsey Dodson acted as parade organizer and chair and unilaterally
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`drafted rules that parade participants agreed to follow as part of their applications. Later in the
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`year and nearer in time to the parade, Lindsey Dodson contacted Mayor Hurst for confirmation
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`that the reverse parade should not be canceled in light of ongoing COVID-19-related restrictions.
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`Lindsey Dodson also contacted the Van Buren Police Department to discuss differences in the
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`logistics of traffic direction for a reverse parade.
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`Among the rules created by Lindsey Dodson for TOTMA’s 2020 reverse Christmas parade
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`participants was a prohibition on floats displaying any flag other than the flag of the United States
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`of America. Bible heard these rules read aloud at a Crawford County Republican Committee
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`meeting before Plaintiffs submitted their application for the 2020 reverse parade. The application
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`also identified TOTMA member Joy Holman as a parade organizer and listed her contact
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`information, but Holman had no decisionmaking authority over TOTMA’s parade, and, apart from
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`her duties as a point of contact, Holman only helped Lindsey Dodson place floats on Main Street.
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`Because Plaintiffs previously had displayed a Confederate flag on their float without issue,
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`approximately one month before the parade Bible’s daughter placed a call to Holman. Bible’s
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`daughter explained that Plaintiffs had always displayed their Confederate flag in the past,
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`mentioned the 2020 “American flags only” rule, and asked whether Plaintiffs would be allowed to
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`display the Confederate flag from their float during TOTMA’s 2020 reverse parade. Holman was
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`3
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`familiar with the Sons of the Southern Cross organization and told Hickerson she was fine with
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`the Confederate flag and with Plaintiffs displaying the Confederate flag from their float.
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`Subsequently, one of the treasurers for Sons of the Southern Cross filled out and submitted an
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`application for the parade.
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`Bible, his family, and members of Sons of the Southern Cross then spent time and money
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`preparing their float. The float displayed silhouettes of two American Civil War soldiers kneeling
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`on either side of a fabric-draped cross. Below the cross was a manger and a lit sign reading “Under
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`One God.” Tents were erected on either side of the float behind the soldier silhouettes. One tent
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`was labeled “US” and an American flag was posted behind it. The other tent was labeled “CS”
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`and a Confederate flag was posted behind it. Plaintiffs intended their float to communicate that
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`Union soldiers and Confederate soldiers both worshipped one god and that Confederate soldiers
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`and the Confederate flag were not evil.
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`Eight days before the parade, Bible called Holman to again communicate Plaintiffs’ intent
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`to display the Confederate flag from their float, and Holman told Bible that Sons of the Southern
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`Cross had participated in the parade for a decade without issue and flying the Confederate flag
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`would be fine. After one of the calls with Bible or his daughter, Holman told Lindsay Dodson
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`about the conversation. Lindsey Dodson explained that the rule was clear in the application that
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`only the American flag could be displayed on a float. Holman did not call Plaintiffs back to correct
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`her misstatement of the rules.
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`On the morning of TOTMA’s reverse parade, Plaintiffs set up their float on Main Street.
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`After setting up the float, Bible and those who assisted him in setting up Plaintiffs’ float left. In
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`the early afternoon, a few hours before the reverse parade was set to begin, a member of the public
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`drove through the parade route and noticed the Confederate flag displayed on Plaintiffs’ float. The
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`4
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`member of the public was bothered by the Confederate flag’s presence in a Christmas parade and,
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`believing it was divisive, contacted Mayor Hurst with her complaint using Facebook Messenger.
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`Mayor Hurst responded that he understood her concerns but that the parade was organized and run
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`by TOTMA, so she then sent a Facebook message to TOTMA. Lindsey Dodson saw the complaint
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`but did not respond, and so the member of the public messaged Mayor Hurst to tell him TOTMA
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`had not responded. A bit later, Mayor Hurst responded to her “I just talked to TOTMA, and this
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`is supposed to be removed . . . no flags.” (Doc. 24-7, p. 7 (Deposition of Starlene Dugan,
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`p. 26:5-11)).
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`That same afternoon, Holman was in Lindsey Dodson’s store on Main Street. Lindsey
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`Dodson was busy managing last-minute parade details, including cancellations due to COVID-19,
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`when she received the member of the public’s Facebook complaint. Matt Dodson (a member of
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`both TOTMA and the Van Buren City Council, and Lindsey Dodson’s husband) entered the store
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`holding his phone and told Lindsey Dodson “[Mayor Hurst]’s been getting multiple calls and texts
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`on his business and personal phone and – about the Confederate flag being displayed, and we
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`needed to have them take it down.”3 (Doc. 24-5, p. 16 (Deposition of Joy Holman, p. 63:3-9)).
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`Lindsey Dodson walked down to Plaintiffs’ float to confirm the presence of the Confederate flag
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`and direct Plaintiffs to remove it, but no one was there, so she returned to her store to deal with
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`other parade business. Matt Dodson called Mayor Hurst to tell him TOTMA was having the
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`Confederate flag removed.
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`At some point another TOTMA board member, Daniel Perry, went to Lindsey Dodson’s
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`3 The Dodsons are friendly with Mayor Hurst and his wife and attend the same church.
`Lindsey Dodson testified that Matt Dodson and Mayor Hurst have known one another for
`approximately 30 years, and that it was the Dodsons and Hursts’ habitual practice that the husbands
`communicated with one another or the wives communicated with one another.
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`store to offer to help with the parade. In addition to being one of three at-large board members of
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`TOTMA, Perry is a Lieutenant with the Van Buren Police Department.4 He was not wearing his
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`uniform that day, but was on duty overseeing the two police officers the City assigned to direct
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`parade-affected traffic. Lindsey Dodson had pulled Plaintiffs’ signed application form that
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`displayed the parade rules and was leaving her store to return to the float to talk to Plaintiffs
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`regarding the flag’s presence on their float. She told Perry that Mayor Hurst had received
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`complaints that the Confederate flag was being flown on Plaintiffs’ float even though TOTMA’s
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`rules prohibited it, and asked Perry to go have Plaintiffs take it down.
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`Perry went to the float and again no one was there, so he returned to Lindsey Dodson, got
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`Plaintiffs’ phone number from their application, and called. Bible’s wife answered and Perry
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`introduced himself as a TOTMA boardmember and as a Van Buren police officer. Bible’s wife
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`brought the phone to Bible, and Perry again introduced himself as a member of TOTMA and a
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`Van Buren police officer. Perry then explained Mayor Hurst was receiving complaints about the
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`Confederate flag, and Plaintiffs either needed to take the flag down or remove the float, or it would
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`be towed. Bible refused and hung up. After some discussion with his family, Bible then called
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`Perry back and offered to remove the Confederate battle flag and replace it with the first national
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`flag of the Confederate States of America—a flag Bible believed few would recognize or view as
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`divisive. Perry rejected the compromise and again told Bible to remove the flag or the float or the
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`float would be towed, and if it could not be the parade would be shut down.5
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`4 Perry has not been made a Defendant to this action in either his official or individual
`capacities.
`5 Perry’s recollection of the phone calls with Bible differed from Bible’s recollection. For
`example, Perry recalls only one phone call and does not recall identifying himself as a police
`officer, but Perry also could not recall everything that was said. Perry testified in his deposition,
`however, that he thought he probably would not have been able to actually have the float towed if
`Plaintiffs refused to remove the Confederate flag or the float because it was legally parked, and
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`After the second phone call, Bible and his family traveled to the float to make sure it was
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`not towed away. The float was on a $15,000 trailer that belonged to another member of the Sons
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`of the Southern Cross and was used by him for business. Bible intended to protect the trailer long
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`enough to let the trailer’s owner make the decision of whether to remove it from the parade or
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`leave it and risk it being towed. Ultimately, the decision was made to remove the float. Plaintiffs
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`slowly towed the float down Main Street to the courthouse, where they stopped and disassembled
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`those parts of the float designed only for display, rather than towing. Plaintiffs then towed the
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`trailer to various locations around Van Buren to publicly display what they still could of the float
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`before returning it home for full disassembly.
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`The following Monday, Bible called Holman to ask why Plaintiffs had been ordered out of
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`the parade. Holman told Bible TOTMA had to do what Mayor Hurst told them to do.
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`III. Analysis
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`The flying of a flag is expressive conduct protected from governmental regulation by the
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`First Amendment to the United States Constitution. See, e.g., Spence v. Washington, 418 U.S.
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`405, 410 (1974) (“The Court for decades has recognized the communicative connotations of the
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`use of flags. In many of their uses flags are a form of symbolism comprising a ‘primitive but
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`effective way of communicating ideas . . .,’ and ‘a shortcut from mind to mind.’” (quoting W. Va.
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`State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943))). The City spends four pages of its brief
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`attempting to argue that Plaintiffs’ flying of the Confederate flag was not expressive conduct that
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`could be protected by the First Amendment because in the context established by these
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`circumstances there was not a great likelihood viewers would understand Plaintiffs’ intended
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`that he couldn’t shut down the parade, and admitted that if he did tell Bible these things, he was
`lying in order to get Bible to take the flag down.
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`message. The City misunderstands the well-settled standard used to evaluate expressive conduct.
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`It does not matter whether parade attendees understood Plaintiffs’ intended message that
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`Confederate and Union soldiers worshipped the same deity and that Confederate soldiers and the
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`Confederate flag were not evil, or instead believed Plaintiffs were communicating an intent to sow
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`division or support white supremacy. “[A] narrow, succinctly articulable message is not a
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`condition of constitutional protection, which if confined to expressions conveying a ‘particularized
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`message,’ . . . would never reach the unquestionably shielded painting of Jackson Pollock, music
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`of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” Hurley v. Irish-Am. Gay, Lesbian
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`& Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995) (quoting Spence, 418 U.S. at 411).
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`What matters is whether in the context created by these circumstances parade attendees
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`would reasonably understand that Plaintiffs were communicating through the use of the
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`Confederate flag, that Plaintiffs’ conduct was expressive. Clark v. Cmty. for Creative Non-
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`Violence, 468 U.S. 288, 294 (1984) (“It is also true that a message may be delivered by conduct
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`that is intended to be communicative and that, in context, would reasonably be understood by the
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`viewer to be communicative.”). Given the absence of any circumstances in the record that could
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`support a reasonable belief that Plaintiffs’ act of flying the Confederate flag was a
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`noncommunicative act, in this case it is unquestionably expressive conduct protected from
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`government restriction by the First Amendment to the Constitution.
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`Although it is clearly established that the First Amendment protects Plaintiffs’ expressive
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`conduct of flying the Confederate flag from regulation by the City, it is equally clearly established
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`that the First Amendment protects TOTMA from being required to include Plaintiffs’ Confederate
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`flag in TOTMA’s parade. Hurley, 515 U.S. at 570 (“The selection of contingents to make a parade
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`is entitled to similar protection [by the First Amendment].”). The First Amendment does not
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`require TOTMA to allow participants in its parade to engage in any expressive conduct they like.
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`“[O]ne who chooses to speak may also decide ‘what not to say.’” Id. at 573 (quoting Pac. Gas &
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`Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 16 (1986)).
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`Turning to the substance of Plaintiffs’ claims, an injured plaintiff may seek legal or
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`equitable relief against any person who:
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`under color of any statute, ordinance, regulation, custom, or usage, of any State or
`Territory or the District of Columbia, subjects, or causes to be subjected, any citizen
`of the United States or other person within the jurisdiction thereof to the deprivation
`of any rights, privileges, or immunities secured by the Constitution and laws.
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`42 U.S.C. § 1983. “A municipality constitutes a person for purposes of § 1983, but is liable only
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`when ‘action pursuant to official municipal policy of some nature caused a constitutional tort.’”
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`Reinhart v. City of Brookings, 84 F.3d 1071, 1073 (8th Cir. 1996) (quoting Monell v. Dep’t of Soc.
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`Servs., 436 U.S. 658, 690 (1978)). “The First Amendment guarantee of free speech guards against
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`abridgment through state action alone. It does not inhibit private restrictions on speech.”
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`Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007). The City may be liable to
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`Plaintiffs under § 1983 only if the City, or “a private person whose action may be fairly treated as
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`that of the municipality itself,” restricted Plaintiffs’ speech. Reinhart, 84 F.3d at 1073.
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`Private action may be fairly attributed to a municipality only when there is a close nexus
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`between the municipality and the challenged action. See Brentwood Acad. v. Tenn. Secondary
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`Sch. Athletic Ass’n, 531 U.S 288, 295 (2001). “The one unyielding requirement is that there be a
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`‘close nexus’ not merely between the state and the private party, but between the state and the
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`alleged deprivation itself.” Wickersham, 481 F.3d at 597 (quoting Brentwood Acad., 531 U.S. at
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`295).
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`There is no dispute of fact that when TOTMA, through boardmember and parade organizer
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`Lindsey Dodson, imposed the “American Flags only” rule on the reverse Christmas parade,
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`TOTMA did so solely as a private actor. TOTMA applied for a parade permit and the City granted
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`the permit in January 2020, allowing TOTMA to block off a portion of Main Street to non-parade
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`traffic. Lindsey Dodson confirmed with Mayor Hurst that TOTMA’s parade was still allowed in
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`light of ongoing COVID-19-related restrictions, and conferred with the Van Buren Police
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`Department about traffic logistics. TOTMA established rules and reviewed applications for parade
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`participation without input from the City. The City added the parade to its online calendar of
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`events occurring in the City and sent police officers to control traffic around the parade area. No
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`reasonable juror could find that this conduct pervasively entwined the City and TOTMA such that
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`it made TOTMA’s parade the City’s parade. Nor could a reasonable juror find any nexus, close
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`or otherwise, between TOTMA’s decision to impose an “American Flags only” rule on its parade
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`and the City’s decision to grant TOTMA a parade permit. Accord Reinhart, 84 F.3d at 1073 (“The
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`fact that Brookings permitted the committee to adopt rules and enforce them does not convert the
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`private action of the committee into state action. Nor does the fact that a private organization was
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`temporarily using public property transform its actions into state action.” (citations omitted)).
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`The primary legal question in Plaintiffs’ case is whether when TOTMA parade organizer
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`Lindsey Dodson enforced TOTMA’s “American flags only” rule by asking TOTMA member
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`Daniel Perry to direct Plaintiffs to remove either the Confederate flag from their float or their float
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`from the parade, she did so as a private actor. If so, neither the City nor TOTMA is liable to
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`Plaintiffs. But just as a municipality cannot compel private parade organizers to include speech in
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`their parades, it cannot compel them to exclude it. If TOTMA was compelled by the City to have
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`Plaintiffs remove the flag or float, or if the City was so pervasively entwined in TOTMA’s decision
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`at the parade to remove Plaintiffs’ flag or Plaintiffs’ float that TOTMA’s conduct was fairly
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`attributable to the City, then both the City and TOTMA can be liable to Plaintiffs under § 1983.
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`To prevail on this motion and proceed to trial, Plaintiffs must demonstrate a dispute of fact exists
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`material to either compulsion or pervasive entwinement and cite to sufficient evidence in the record
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`to show that the dispute is genuine and a reasonable jury could resolve the matter in Plaintiffs’
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`favor.
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`With respect to whether the City compelled TOTMA to remove Plaintiffs’ flag or float,
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`material facts are disputed but the dispute is not genuine because it is not supported by admissible
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`evidence that would enable Plaintiffs to prevail before a jury. After receiving a public complaint
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`about the Confederate flag on Plaintiffs’ float Mayor Hurst contacted Matt Dodson, who then told
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`Lindsey Dodson “[Mayor Hurst]’s been getting multiple calls and texts on his business and
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`personal phone and – about the Confederate flag being displayed, and we needed to have them
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`take it down.” Lindsey Dodson testified that by that time she had already seen a complaint
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`submitted to TOTMA’s Facebook page and that she had decided independently of Mayor Hurst’s
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`communication with Matt Dodson that she would ask Plaintiffs to abide by parade rules she
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`believed they had agreed to and remove either their flag or their float.
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`Plaintiffs dispute this testimony and argue that TOTMA was compelled by Mayor Hurst to
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`have Plaintiffs remove their flag, but there is no admissible evidence in the record to render this
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`dispute genuine. Holman testified that after hearing Matt Dodson’s statement she believed Mayor
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`Hurst was ordering TOTMA to direct Plaintiffs to remove the flag, but Holman is not a TOTMA
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`decisionmaker whose subjective beliefs are relevant to whether TOTMA perceived Mayor Hurst’s
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`communication as compulsion, and Plaintiffs offer no testimony to show that Lindsey Dodson, the
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`relevant TOTMA decisionmaker, understood Mayor Hurst’s communication to be an order.
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`Instead, Plaintiffs offer Holman’s opinion that TOTMA was compelled to obey because Mayor
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`Hurst is “the director of our city” and “in charge.” (Doc. 24-5, p. 12 (Deposition of Joy Holman,
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`p. 47:13-24)). There is no evidence that the laws of the City of Van Buren or the controlling
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`documents for TOTMA require TOTMA to obey requests or commands from the Mayor about
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`what flags are or are not allowed on a float in TOTMA’s parade, and no testimony from Holman
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`that could otherwise show her opinion that TOTMA was required to obey Mayor Hurst is
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`“rationally based on [her] perception.” Fed. R. Evid. 701(a).
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`Lindsey Dodson’s testimony that she decided, independently of Mayor Hurst’s
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`communication, to have Plaintiffs remove their flag is not genuinely disputed. “Private action is
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`not converted into state action unless the state . . . has compelled the act; mere acquiescence is not
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`enough.” Reinhart, 84 F.3d at 1073. The record demonstrates that TOTMA boardmember and
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`parade organizer Lindsey Dodson’s decision to exclude Plaintiffs’ flag or Plaintiffs’ float was the
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`decision of a private actor and was not compelled by the City.
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`Plaintiffs also argue that the City was so pervasively entwined with the enforcement of
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`parade rules that TOTMA’s decision to have Plaintiffs remove their flag or float was fairly
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`attributable to the City. Accepting as true Bible’s recollection of his phone calls with Perry, in
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`enforcing the “American Flags only” rule Perry identified himself as a police officer. Although
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`Perry was not uniformed at the time he was enforcing the rule and witnesses testified Perry was
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`acting in his capacity as a TOTMA boardmember, if Perry leaned on his authority as a police
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`officer when he enforced the rule, a reasonable jury could find Perry was a state actor.
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`Whether Perry was a state actor when he enforced the private rule is not enough for official
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`capacity liability against the City and TOTMA, however. Plaintiffs must also show that Perry’s
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`enforcement of private rules as a state actor was pursuant to the City’s official policies or customs.
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`They cannot do so. Again, it is undisputed that the City did not impose the “American Flags only”
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`rule, and it is not genuinely disputed that TOTMA was not compelled by the City to enforce
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`TOTMA’s own rule. And unlike Wickersham, where “the police department’s security plan
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`instructed the officers to enforce [a private actor’s] rules rather than city ordinances, and police
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`took an active role in identifying and intercepting protestors at the air show,” Wickersham, 481
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`F.3d at 598–99, in this case Perry’s enforcement of a private rule was pursuant to the direct request
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`of TOTMA, acting through Lindsey Dodson.
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`This is not a case where police were tasked by their city with enforcing private speech
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`regulations on attendees at an airshow. This is not even a case where police were requiring reverse
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`parade attendees to remove any flag but the American flag from their vehicles as they passed down
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`the permitted parade route. This is a case where a parade participant was directed by the parade
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`organizer to remove a flag from a float. Assuming still that Perry acted as a police officer and
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`state actor when he directed Plaintiffs to remove their flag or their float, his conduct was no
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`different than the conduct of a police officer being called to remove a trespasser. Accord
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`Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001) (private party’s mere
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`invocation of state legal procedures does not constitute state action).
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`TOTMA had a permit from the City for a reverse parade, but TOTMA’s decision about
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`what speech its parade participants expressed during that parade did not come from authority
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`TOTMA received through that parade permit. Instead, it was an exercise of TOTMA’s own First
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`Amendment rights, TOTMA’s own protection from state authority.6 Even assuming a reasonable
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`jury could find that Perry was a state actor when he enforced TOTMA’s “American Flags only”
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`rule, it could not find that “the claimed deprivation ‘resulted from the exercise of a right or
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`6 Indeed, had Perry as a police officer allowed Plaintiffs’ flag to remain on the permitted
`route of the reverse parade, had he instead told TOTMA that it must allow Plaintiffs to display
`their flag from their float in TOTMA’s parade, it likely would be TOTMA bringing a § 1983 action
`against the City for a violation of the First and Fourteenth Amendments. See generally Hurley,
`515 U.S. 557.
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`Case 2:21-cv-02019-PKH Document 32 Filed 01/26/22 Page 14 of 15 PageID #: 340
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`privilege having its source in state authority.’” Wickersham, 481 F.3d at 597 (quoting Lugar v.
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`Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982)).
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`Because Plaintiffs cannot show that TOTMA’s decisions to prohibit any flag but the
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`American flag and to remove Plaintiffs’ flag or float from TOTMA’s parade were compelled by
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`or fairly attributable to the City, Plaintiffs cannot demonstrate a constitutional violation occurred
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`that would support their claims for damages and injunctive relief against the City. Separate
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`Defendant TOTMA has defaulted, but the complaint disclaims damages against TOTMA and
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`seeks only injunctive relief premised on the same legal theory of a constitutional violation
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`underlying Plaintiffs’ claims against the City. Because Plaintiffs cannot show any violation of
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`their First and Fourteenth Amendment rights, they cannot make the demonstration necessary to
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`obtain permanent injunctive relief against TOTMA in a motion for default judgment. See eBay,
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`Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (“According to well-established principles
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`of equity, a plaintiff seeking a permanent injunction . . . must demonstrate: (1) that it has suffered
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`an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate
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`to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff
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`and defendant, a remedy in equity is warranted; and (4) that the public interest would not be
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`disserved by a permanent injunction.”). Because Plaintiffs have disclaimed damages against
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`TOTMA, the Court need not consider whether the allegations or the record support any state law
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`theory of damages recovery against TOTMA. Instead, summary judgment for TOTMA is also
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`proper.
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`IV. Conclusion
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`IT IS THEREFORE ORDERED that the motion for summary judgment (Doc. 22) is
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`GRANTED and this case is DISMISSED WITH PREJUDICE. Judgment will be entered
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`Case 2:21-cv-02019-PKH Document 32 Filed 01/26/22 Page 15 of 15 PageID #: 341
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`separately.
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`IT IS SO ORDERED this 26th day of January, 2022.
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`/s/P. K. Holmes, ΙΙΙ
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`P.K. HOLMES, III
`U.S. DISTRICT JUDGE
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