Case 3:21-cv-01335-SMY Document 41 Filed 09/26/23 Page 1 of 9 Page ID #355
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
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`JERRY D. PATTEN and
`JERRY & SONS REPAIR-TOWING,
`INC.,
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`vs.
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`GREG DODSON, HERB WILLIAMS,
`HOWARD JONES, ROBERT SMITH,
`ANDRE MARSHALL, and
`DAVID SAUER, Individually and in their
`official capacities
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`Plaintiffs,
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`Defendants.
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`Case No. 21-cv-1335-SMY
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`MEMORANDUM AND ORDER
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`YANDLE, District Judge:
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`Plaintiffs Jerry D. Patten and Jerry & Sons Repair-Towing, Inc. filed the instant lawsuit
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`against Defendants Greg Dodson, Herb Williams, Howard Jones, Robert Smith, Andre Marshall,
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`and David Sauer, individually and in their official capacities, asserting violations of their First
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`Amendment rights. Defendants move for summary judgment (Doc. 35), which Plaintiffs oppose
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`(Doc. 36).
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`Factual Background
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`Construed in the light most favorable to Plaintiffs, the evidence and reasonable inferences
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`establish the following facts relevant to the pending summary judgment motion: Pursuant to
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`Section 5/4-203.5 of the Illinois Vehicle Code1 (625 ILCS 5/1-100, et seq.) and § 13-60 the Centralia
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`Code of Ordinances (Doc. 35-1, Ex. A; Doc. 35-1, Ex. B, p. 29), the Centralia Police Department
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`1 Pursuant to Illinois Vehicle Code, each law enforcement agency whose duties include the patrol of highways shall
`maintain a tow rotation list to be utilized by law enforcement officers authorizing the tow of a vehicle within the
`jurisdiction of the law enforcement agency.
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`Case 3:21-cv-01335-SMY Document 41 Filed 09/26/23 Page 2 of 9 Page ID #356
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`(“CPD”) maintains a tow rotation list consisting of several tow truck operators. The operators
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`work with the CPD to tow motor vehicles after arrests, traffic accidents, and in conjunction with
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`other CPD-related activities (Doc. 35-1, Ex. A; Doc. 35-1, Ex. B, pp. 20-23). Centralia’s chief of
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`police has the sole discretion to remove operators from the CPD tow rotation list (Doc. 35-1, Ex.
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`A; Doc. 35-1, Ex. E, pp. 23-24). A tow truck operator can become disqualified for “actions that
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`are not in the best interest of the city or police department” (Doc. 35-1, Ex. A).
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`On July 19, 2020, the Marion County Housing Authority (“MCHA”) requested assistance
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`from the CPD to conduct “a compliance check” on vehicles parked at MCHA properties in
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`Centralia (Doc. 35-1, Ex. B, p. 28). During a “compliance check,” the CPD checks to ensure that
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`vehicles parked on MCHA property display a valid parking sticker or visitor’s pass (Doc. 35-1, p.
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`30; Doc. 31-1, Ex. B). If a vehicle does not have a sticker or pass, the CPD instructs the towing
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`company to tow the vehicle on behalf of the MCHA. Id.
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`The CPD contacted Plaintiff Jerry Patten’s tow company, Jerry & Sons Repair-Towing,
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`Inc. (“JSRT”) to facilitate the towing of vehicles at the MCHA property (Doc. 35-1, Ex. B, pp. 8-
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`9, p. 30). Patten and two of his sons responded and towed 39 vehicles. Id. at pp. 32-33. They
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`initially towed 12 vehicles to the company’s regular impound lot in Central City. Id. After the lot
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`was full, they towed the remaining 27 vehicles to Patten’s home in Sandoval. Id. At the Sandoval
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`property, Plaintiffs displayed a Confederate flag on a 20-foot flagpole. Id. at pp. 35-36.
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`Centralia officials began receiving complaints about Plaintiffs’ Confederate flag almost
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`immediately after vehicle owners began retrieving their vehicles from the Sandoval lot (Docs. 35-
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`1, Ex. F, pp. 9-11; Doc. 35-1, Ex. G, pp. 21-23). Rick Garrett saw the Confederate flag when he
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`drove his daughter to pick up her vehicle on July 20, 2020 (Doc. 35-1, Ex. H, pp.12-13). Garrett
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`went to the CPD and voiced his concerns about the flag to CPD Chief Greg Dodson. Id.
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`Case 3:21-cv-01335-SMY Document 41 Filed 09/26/23 Page 3 of 9 Page ID #357
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`Marion Garrett became aware of Plaintiffs’ use of the Confederate flag after she was
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`contacted by a group of MCHA tenants who had their vehicles towed by Plaintiffs (Doc. 35-1, Ex.
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`I, pp. 11-12). After hearing the residents’ complaints, Garrett voiced her concerns about the flag
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`to Dodson and sent an email to Centralia City Manager Lowell Crow. Id.; see also Doc. 35-1, Ex.
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`J, p. 17. The Garretts saw the flag as a symbol of racism and believed Plaintiffs’ use of the flag
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`reflected negatively on the CPD and the City (Doc. 35-1, Ex. H, pp. 12-13; Doc. 35-1, Ex. I, pp.
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`14-15).
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`Centralia officials received numerous other complaints about Plaintiffs’ Confederate flag
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`(Doc. 35-1, Ex. J, p. 9). Mayor Herb Williams received complaints from members of the Centralia
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`community, including leaders of religious and civic organizations. Id. City Councilmen David
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`Sauer, Howard Jones, Andre Marshall, and Robert Smith also received complaints, and Sauer and
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`Jones reported observing negative posts on social media (Doc. 35-1, Ex. G, pp. 22-23; Doc. 35-1,
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`Ex. J).
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`To address the public’s concerns, Williams, Dodson, Sauer, and Crow met with Marion
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`Garrett, Rick Garrett, and Eric Collins of the NAACP (Doc. 35-1, Ex. E, pp. 45-46). During the
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`meeting, the city officials listened to the group’s concerns and held a discussion about the issues
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`created by the “compliance check.” Id.
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`Dodson and Patten met in Dodson’s office within a week after the MCHA tows (Doc. 35-
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`1, Ex. E, pp. 32-36). During the conversation, Patten told Dodson that he was being called a racist
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`on social media and that he was not a racist; he was a redneck. Id. Patten stated that the
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`Confederate flag was a symbol of “redneck heritage” (Doc. 35-1, Ex. B, p. 37). Dodson told Patten
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`that some residents saw the flag as a symbol of hate and that Plaintiffs’ actions reflected negatively
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`on the CPD (Doc. 35-1, Ex. E, pp. 32-36). Dodson explained that the CPD could not be perceived
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`Case 3:21-cv-01335-SMY Document 41 Filed 09/26/23 Page 4 of 9 Page ID #358
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`as having a racial bias. Id. Patten acknowledged that many people view the Confederate Flag as a
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`symbol of racism and that it has historically been used by groups such as the Ku Klux Klan (Doc. 35-
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`1, Ex. B, pp. 42-43). Patten further acknowledged that Plaintiffs’ actions while performing work for
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`the City affected how people viewed the City and its elected officials and that Plaintiffs’ actions could
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`reflect poorly on the City. Id. Dodson believed that Patten would remove the flag following their
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`meeting. Id.
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`After Patten’s discussion with Dodson, Plaintiffs put up numerous additional Confederate
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`flags at the Sandoval property (Doc. 35-1, Ex. E, pp. 29-31; Doc. 35-1, Ex. F, p. 12; Doc. 35-1,
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`Ex. G, p. 16). City officials also became aware that Patten was selling Confederate flags on
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`Facebook, was attaching Confederate flags to his motorcycle, and that people were creating and
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`putting Confederate flag-JSRT stickers on their vehicles (Doc. 35-1, Ex. E, pp. 29-31; Doc. 35-1,
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`Ex. B, pp. 52-53; Doc. 35-1, Ex. K).
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`The City Council addressed Plaintiffs’ flying of the Confederate flag at open meetings on
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`July 27, 2020, and August 10, 2020. Rick Garrett conveyed his concerns about the flag and asked
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`what steps were being taken to alleviate racial tensions and to get Plaintiffs to remove the flag
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`(Docs. 35-1, Exs. J, N, and O). Williams, the City Council, and Dodson discussed the public’s
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`complaints about the flag, the need to discuss the issue with Plaintiffs and the possibility of passing
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`a resolution to address the problem (Doc. 35-1, Exs. J, L, X).
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`Dodson explained his decision to ultimately remove JSRT from the tow list as follows:
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`The Confederate flag, in and of itself, is a symbol – whether or not this is how
`Patten is exhibiting it under these terms – of racial discord, racial hate,
`discrimination, oppression towards minority community…In Centralia, we live in
`a community that has a…very high percentage of minorities…And at the same
`time, when we’re towing vehicles and taking enforcement action, they represent a
`higher number of arrests and vehicle towed than their 10 percent representation.
`And this, in and of itself, makes us in a position where we have to guard against
`anything that makes it look like the actions that are being taken are for any other
`reason outside legal justifiable law enforcement activity. They can’t be viewed as
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`Case 3:21-cv-01335-SMY Document 41 Filed 09/26/23 Page 5 of 9 Page ID #359
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`biased. We can’t be viewed as being prejuditory [sic] or discriminating against one
`member of the society or another. And this put the department in a very, very bad
`position that – here is a company we’re doing business with who is towing a lot of
`minority vehicles, and now it’s come to light that he’s displaying this flag at a
`location where they had to go and retrieve their vehicles.
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`(Doc. 35-1, Ex. E, p. 28). Dodson also considered the potential for civil unrest, violence, and property
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`damage in making his decision to remove Plaintiffs from the tow rotation list in the wake of George
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`Floyd’s death several months prior. Id. at pp. 48-49.
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`On August 18, 2020, Dodson sent Plaintiffs a letter removing JSRT from the CPD’s tow
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`rotation list pursuant to 625 ILCS 5/4-203.5(b) and § 13-60(i) of the Centralia Code of Ordinances
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`(Doc. 35-2, Ex. Q). In the letter, he stated that Plaintiffs’ use of the flag “imputes bias on the City
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`and is not in the best interests of the City or its residents.” Id. Dodson also issued a press release
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`related to Plaintiffs’ Confederate flag and JSRT’s removal from the tow rotation list (Doc. 35-2,
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`Ex. R). On October 25, 2021, Plaintiffs filed the instant lawsuit against Defendants Williams,
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`Dodson, and Centralia City Council Members Judge David Sauer (ret.), Howard Jones, Robert
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`Smith, and Andre Marshall alleging violations of their First Amendment rights (Doc. 1).
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`Discussion
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`Summary judgment is proper only if the moving party can demonstrate that there is no
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`genuine issue as to any material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
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`317, 322 (1986). The moving party is entitled to summary judgment where the non-moving party
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`“has failed to make a sufficient showing on an essential element of her case with respect to which
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`she has the burden of proof.” Celotex, 477 U.S. at 323. If the evidence is merely colorable, or is
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`not sufficiently probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc.,
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`477 U.S. 242, 249–50 (1986). Any doubt as to the existence of a genuine issue of material fact
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`must be resolved against the moving party. Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th
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`Cir. 2004).
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`Case 3:21-cv-01335-SMY Document 41 Filed 09/26/23 Page 6 of 9 Page ID #360
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`Government employees have certain limitations on their freedom of speech, but they do
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`not “relinquish the First Amendment rights [they] would otherwise enjoy as a citizen to comment
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`on matters of public interest.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) quoting Pickering
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`v. Bd. of Educ., 391 U.S. 563, 568 (1968)) (internal punctuation omitted). In Pickering, the
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`Supreme Court, aiming to strike a balance between employees’ rights “and the interest of the State,
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`as an employer, in promoting the efficiency of the public services it performs through its
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`employees”, set out the required elements for a government employee First Amendment claim
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`under 42 U.S.C. § 1983, Id. A plaintiff must show that: (1) he was speaking as a private citizen;
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`(2) on a matter of public concern; and (3) his interest in expressing that speech was not outweighed
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`by the state’s interests as an employer in “promoting effective and efficient public service.” Id.
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`This balancing test applies with equal force to independent government contractors such as
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`Plaintiffs. Bd. Of County Comm’rs, Wabaunsee County, Kan. V. Umbehr, 518 U.S. 668, 677
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`(1996). Here, it is undisputed that Plaintiffs’ act of displaying the Confederate flag constitutes
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`private citizen speech.
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` Private citizen speech addresses a matter of public concern when it can be “fairly
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`considered as relating to any matter of political, social, or other concern to the community.”
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`Connick v. Myers, 461 U.S. 138, 146 (1983); Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir.
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`2002). Whether an employee's speech implicates a matter of public concern is a question of law
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`that “must be determined by the content, form, and context of a given statement as revealed by the
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`whole record.” Connick, 461 U.S. at 138, 147–48.
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`Patten testified that he displayed the Confederate flag as a symbol of his “redneck
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`heritage.” Members of the community viewed the flag as a symbol of hate, racism, and bigotry.
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`Case 3:21-cv-01335-SMY Document 41 Filed 09/26/23 Page 7 of 9 Page ID #361
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`The Confederate flag communicates an array of messages and courts have recognized that
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`displaying the flag as a symbol of heritage is a divisive statement of public concern. See Cotriss
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`v. City of Roswell, Georgia, 2019 WL 13021858, at *5 (N.D. Ga. July 3, 2019), aff'd sub nom.
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`Cotriss v. City of Roswell, No. 19-12747, 2022 WL 2345729 (11th Cir. June 29, 2022) (collecting
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`cases). This Court joins them. While Patten’s stated motivation may appear private in nature, the
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`existing social and political context render Plaintiffs’ display of the Confederate flag a statement
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`of public concern. That said, such speech is not afforded First Amendment protection unless
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`Plaintiffs’ interest in making the speech outweighs Defendants’ interest in operating an effective
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`and efficient public service.
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`The potential disruption of the public service need not actually occur for the employer to
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`act to protect its interests; courts must give substantial weight to government employers’
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`reasonable predictions of disruption. See Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d 1110,
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`1118 (7th Cir. 2013). The employer’s assessment of possible interference must be reasonable,
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`supported by an evidentiary foundation, and more than mere speculation. Id. The nature of the
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`employee's job must also be considered by the court as an employer has more leeway in restricting
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`the speech of an employee whose position requires contact with the public. Id.
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`“The effectiveness of a city’s police department depends importantly on the respect and
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`trust of the community and on the perception in the community that it enforces the law fairly, even-
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`handedly, and without bias.” Lalowski v. City of Des Plaines, 789 F.3d 784, 792 (7th Cir. 2015)
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`(quoting Locurto v. Guiliani, 447 F.3d 159, 178 (2nd Cir. 2006). Undoubtedly, effective operation
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`of a police department requires maintaining positive relations with the community it serves.
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`Members of the public had their vehicles towed by Plaintiffs at the direction of the CPD and were
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`Case 3:21-cv-01335-SMY Document 41 Filed 09/26/23 Page 8 of 9 Page ID #362
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`forced to retrieve them from a location where the Confederate flag was prominently displayed.
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`This presented an obvious association between the flag and CPD.
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`Almost immediately after Plaintiffs towed the vehicles, the CPD and other city officials
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`began receiving complaints from the vehicle owners, members of the community and leaders of
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`religious and civic organizations about the display of the flag. Chief Dodson testified that he was
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`worried that a continued relationship with Plaintiffs would lead to civil unrest particularly since the
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`towing occurred two months following the death of George Floyd. Significantly, Patten
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`acknowledges that Plaintiffs’ actions affected how people viewed the City and its elected officials and
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`that their actions could reflect poorly on the City. Nevertheless, after his discussion with Chief
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`Dodson, Plaintiffs placed additional Confederate flags on their property.
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`A genuine potential for speech to harm a police department’s reputation justifies an
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`employer acting before that harm is realized. See Connick, 461 U.S. at 151-52. Here, the potential
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`was more than conjecture, and Chief Dodson did not need to wait for further disruption to occur
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`before he acted. The City and CPD’s desire to provide effective police services – not perceived as
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`racist or biased – outweighs Plaintiffs’ interests in symbolizing their “redneck heritage.”2
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`2 Defendants also move for summary judgment on qualified immunity grounds. Had the Court concluded that
`Plaintiffs suffered a constitutional violation, Defendants would be entitled to qualified immunity. A constitutional
`right is clearly established “only if its contours are ‘sufficiently clear that a reasonable official would understand what
`he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987)). While the fact patterns of prior
`cases used to show that a right is clearly established need not be “fundamentally similar” or even “materially similar,”
`the salient question is whether the law at the time of the alleged violation gave officials “fair warning” that their acts
`were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 740 (2002). Considering police departments’ heightened
`interests in providing efficient public service, the outcome does not so evidently favor Plaintiffs such that Defendants
`were expected to know that removing Plaintiffs from the tow rotation list in this instance would result in a
`constitutional violation. Thus, the Court concludes that Plaintiffs’ First Amendment rights in this context were not
`clearly established.
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`Case 3:21-cv-01335-SMY Document 41 Filed 09/26/23 Page 9 of 9 Page ID #363
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`Conclusion
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`For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED in
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`its entirety. The Clerk of Court is DIRECTED to enter judgment accordingly and to close this
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`case.
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`IT IS SO ORDERED.
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`DATED: September 26, 2023
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`STACI M. YANDLE
`United States District Judge
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`Page 9 of 9
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