James L. Pouillon v. CITY OF OWOSSO ; SERGEANT SHARON LITTLE ; and OFFICER W. G. BLANCHETT

*The Honorable Bernice B. Donald, United States District Judge for
the Western District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0093P (6th Cir.)
File Name: 00a0093p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J AMES L. P OUILLON ,
Plaintiff-Appellant,
v.
C ITY OF OWOSSO ; S ERGEANT
S HARON LITTLE ; and OFFICER
W. G. BLANCHETT ,
Defendants-Appellees.
;>

1
No. 98-1967
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-70413—Anna Diggs Taylor, District Judge.
Argued: September 23, 1999
Decided and Filed: March 16, 2000
Before: BOGGS and DAUGHTREY, Circuit Judges; and
DONALD, District Judge.*

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2 Pouillon v. City of Owosso, et al. No. 98-1967
_________________
COUNSEL
ARGUED: Michael J. Gildner, SIMEN, FIGURA &
PARKER, Flint, Michigan, for Appellant. Marcia L. Howe,
JOHNSON, ROSATI, LaBARGE, ASELTYNE & FIELD,
Farmington Hills, Michigan, for Appellees. ON BRIEF:
Michael J. Gildner, SIMEN, FIGURA & PARKER, Flint,
Michigan, for Appellant. David R. Brinks, JOHNSON,
ROSATI, LaBARGE, ASELTYNE & FIELD, Lansing,
Michigan, for Appellees.
_________________
OPINION
_________________
BOGGS, Circuit Judge. James L. Pouillon was arrested by
Owosso, Michigan city police while protesting on public
property against abortion. The arrest was ostensibly for
“refusing a lawful police order” to move, and “obstructing
passage to a public building.” Pouillon sued the City of
Owosso and two of its police officers, under 42 U.S.C.
§ 1983, for violating his clearly established constitutional
rights to freedom of speech, religion, and assembly by
arresting him for protesting abortion while standing with a
sign in front of city hall. The district court denied his motion
for summary judgment and, after a jury found against him, his
renewed motion for judgment as a matter of law. He appeals
these rulings, and also contends that the district court
committed reversible error in submitting to the jury the issue
of defendants’ qualified immunity, rather than submitting
special interrogatories on the basis of which the court would
then decide the question of whether the defendants’ actions
were qualifiedly immune. He also appeals the district court’s
dismissal sua sponte of his claim for punitive damages. The
district court submitted the case to a jury under instructions
that misstated and conflated the principles of qualified
immunity, First Amendment rights, and freedom from
arbitrary arrest. We therefore remand this case for further

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14 Pouillon v. City of Owosso, et al. No. 98-1967
reasonable juror could have found for the nonmoving party.”
Ibid. The standard used by this court is thus “identical to the
one used by the district court.” Phelps v. Yale Sec., Inc., 986
F.2d 1020, 1023 (6th Cir. 1993).
Because, as has been explained above, there are issues of
material fact requiring jury decision, judgment as a matter of
law would not be appropriate in this case. Accordingly we
affirm the district court’s denial of Pouillon’s motions for
judgment as a matter of law.
V
Based on the record before us, we hold that the judge’s
instructions, properly objected to by the plaintiff, did not state
the law correctly. We further hold that the record reveals a
genuine issue of material fact as to the conduct of Pouillon on
the day in question, and as to whether he could be
constitutionally arrested for those actions. Finally, we make
no determination on the question of qualified immunity, but
refer the district court to the controlling Supreme Court and
Sixth Circuit decisions, should a determination on qualified
immunity become necessary on remand. For the foregoing
reasons, we AFFIRM in part and REVERSE in part, and
REMAND this case to the district court for further
proceedings in accordance with this opinion.
No. 98-1967 Pouillon v. City of Owosso, et al. 3
proceedings under the appropriate standards, as set forth in
this opinion.
I
James Pouillon is a dedicated anti-abortion protester whose
non-working life is largely devoted to activism in that cause.
He was a familiar figure on the streets of Owosso, where he
staged abortion protests for a portion of each day almost every
weekday for over ten years. On the date he was arrested, he
had decided to move his protest from his customary post on
the sidewalk to a position on a small plaza separating upper
and lower short flights of steps to city hall, or on the steps
themselves. On the sidewalk, he had often been the target of
verbal abuse as well as assorted missiles, and had once been
almost run down by a motorist who swerved onto the
sidewalk and drove straight at him. He had also been issued
a ticket on the sidewalk by Sergeant Little on an earlier
occasion for violating a city ordinance banning signs in the
public right-of-way. However, Sergeant Little testified that
this incident involved a large, free-standing sign rather than
Pouillon’s usual hand-held sign, and that it was the sign,
rather than Pouillon’s presence, that had constituted the
sidewalk obstruction and resulted in his ticket on that earlier
occasion.
On December 22, 1994, Sergeant Little and Officer
Blanchett, responding to a complaint about Pouillon’s
presence there, went to city hall’s steps and ordered him to
move to the sidewalk. Pouillon contends that the reason they
gave is that he was on private property and in any case was
violating the doctrine of separation of church and state. They
deny this and claim that they told him he was obstructing
entry to and egress from city hall. In any event, when he
refused to move, he was arrested under City Ordinance 19-27,
which prohibits impeding a police officer in the conduct of
his or her duties.
The police assert that Pouillon was actively seeking, and
that he admitted that he wanted, to be arrested. Pouillon
denies this. The arrest itself appears to have been handled

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4 Pouillon v. City of Owosso, et al. No. 98-1967
with some cordiality. For example, the officers moved his
handcuffs from behind his back to the front of his body so
that Pouillon could be more comfortable in the police cruiser;
after he was taken to the police station, searched, and booked,
he was released on a personal recognizance bond; Sergeant
Little drove him back to his car so that he could be on time
for work. Nonetheless, Pouillon charges that the police
conduct was outrageous, constituted an abuse of power, and
warrants punitive damages, in addition to compensatory
damages for violation of his civil rights.
II
Sergeant Little and Officer Blanchett both testified at trial
that, in their judgment, Pouillon and his sign constituted an
obstruction of access to city hall, or would intimidate others
who might wish to use the steps. Based on this judgment, and
given that they had been dispatched there due to a complaint,
they asked Pouillon to move to the sidewalk. Their defense
to Pouillon’s charge that the arrest constituted an illegal
deprivation of his First and Fourth Amendment rights is, first,
that the restriction was a reasonable one since it left Pouillon
alternative avenues of communication (the sidewalk), and
finally, that even if his allegations on this issue were taken as
true, the doctrine of qualified immunity shields them from
liability.
Pouillon argues: (a) that his constitutional rights,
specifically of freedom of speech, religion, assembly, and
freedom from unlawful arrest, were violated, in that the
officers’ restriction of his freedom of speech, even if
construed as a time, place, and manner regulation, was not a
reasonable one; and (b) that the trial court should have
rejected the defendants’ qualified immunity defense and
granted plaintiff’s motion for judgment as a matter of law
since, as he argues, there were no factual disputes permitting
such a defense, in that any reasonable officer would have
known that her actions involved such a constitutional
violation.
No. 98-1967 Pouillon v. City of Owosso, et al. 13
III
One further issue remained in this trial, and that is whether
the manner of Pouillon’s arrest, if it was not lawful, was so
outrageous as to warrant punitive damages. In some cases
this could hinge on contested questions of fact. Pouillon
contends the district court erred in dismissing sua sponte his
claim for such damages.
Dismissal by the district court sua sponte of a plaintiff’s
claim for exemplary damages is reviewed for abuse of
discretion. See Gordon v. Norman, 788 F.2d 1194, 1199 (6th
Cir. 1986). In the latter case, this court held that the award
of punitive damages for violations of civil rights “involves an
evaluation of the nature of the conduct in question, the
wisdom of some form of pecuniary punishment, and the
advisability of a deterrent. Therefore the infliction of such
damages and the amount thereof when inflicted are of
necessity within the discretion of the trier of fact.” Ibid. As
noted earlier, Pouillon’s arrest was handled in a highly
relaxed and cordial fashion, ending in his release on his own
recognizance and his delivery, courtesy of Sergeant Little, to
his own vehicle. We find that the district court did not abuse
its discretion in determining that the police’s conduct in this
instance hardly rises to the level of egregiousness justifying
punitive damages, even if it is found at trial that the arrest was
unlawful and that compensatory damages are due.
IV
Since it involves a question of law, this court reviews de
novo a district court’s denial of a motion for judgment as a
matter of law (motion for a directed verdict), and of a
renewed motion for judgment as a matter of law (motion for
judgment notwithstanding the verdict). See Moore v. Kuka
Welding Systems & Robot Corp., 171 F.3d 1073, 1078 (6th
Cir. 1999) (citing K & T Enterprises, Inc. v. Zurich Ins. Co.,
97 F.3d 171, 175 (6th Cir. 1996), and Wehr v. Ryan’s Family
Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir. 1995)).
“Judgment as a matter of law is appropriate only when there
is a complete absence of fact to support the verdict, so that no

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12 Pouillon v. City of Owosso, et al. No. 98-1967
was in fact content-neutral; or (b) (second jury question) he
was interfering with the public use of public property, for
example for such uses as access to the building. In either
case, he must be afforded an ample alternative channel of
communication. What constitutes such channel is a matter of
law, dependent on circumstances; but (third jury question) the
actions in fact taken by intervening officers, here allegedly
simply ordering him to move to the nearby sidewalk, must be
found by the jury to fit the legal definition, given the jury by
the court, of allowing an ample alternative channel of
communication.
The verdict form also asked the jury to find separately on
“Plaintiff’s claim of violation of his federal constitutional
right to be free from unlawful arrest.” But this, too,
erroneously put before the jury a purely legal question. If the
officers’ order to Pouillon to move to the sidewalk was a
reasonable one, i.e. if it afforded him an ample alternative
channel of communication, then plaintiff’s claim fails as a
matter of law. If not, it succeeds, again as a matter of law.
Here there is nothing for a jury to decide.
Finally, the question of qualified immunity, which was
improperly submitted to the jury under general instructions,
is rather a question of law for determination by the judge.
Questions of fact may be relevant to this determination, see
Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir.
1989), but the ultimate question is one of law: if the finder of
fact determines that the officers undertook certain actions,
could any reasonable police officer have believed that those
actions did not violate Pouillon’s constitutional rights? See
Dominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987) (citing
Anderson v. Creighton, 483 U.S. 635, 664 (1987).
We hold that the district court abused its discretion in
submitting to the jury questions of law as well as of fact. For
this reason we reverse the district court’s denial of Pouillon’s
motion for special interrogatories and remand this case for a
new trial on the three questions which, as we have just
indicated, should have been put to the jury.
No. 98-1967 Pouillon v. City of Owosso, et al. 5
Pouillon also contends that the district court committed
reversible error in allowing the jury to decide the case on a
general verdict that allowed a qualified immunity defense,
rather than putting special interrogatories to the jury on the
basis of which the court could then rule on the defendants’
qualified immunity as a matter of law. A trial judge’s
decision whether or not to submit a dispute to the jury through
special interrogatories is within the trial court’s sound
discretion. Fed. R. Civ. P. 49. Such discretion is reviewed by
this court for abuse, which “is defined as a definite and firm
conviction that the trial court committed an error of
judgment.” See Monette v. AM-7-7 Baking Co., 929 F.2d
276, 280 (6th Cir. 1991) (quoting Logan v. Dayton Hudson
Corp., 865 F.2d 789, 790 (6th Cir. 1989)). The trial court’s
discretion will not be disturbed unless “it relies upon clearly
erroneous findings of fact or when it improperly applies the
law or uses an erroneous legal standard.” Fleischut v. Nixon
Detroit Diesel, Inc., 859 F.2d 26, 30 (6th Cir. 1988).
This case involves related sets of questions for
determination. First, there are three factual questions about
what happened at city hall on December 22, 1994. Was
Pouillon obstructing anyone? Could any reasonable officer
have thought he was or might be obstructing anyone? Why
did the officers arrest Pouillon? These are appropriate
questions for the jury as finders of fact. Second, there are
legal issues. What are the standards by which we judge
whether Pouillon’s actions are constitutionally protected?
Did the officers’ actions violate constitutional rights? These
are matters on which the judge must instruct the jury.
In analyzing qualified immunity claims “[w]e conduct de
novo review because the issue whether qualified immunity is
applicable to an officer’s actions is a matter of law.”
Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996).
However, “[w]here . . . the legal question of qualified
immunity turns upon which version of the facts one accepts,
the jury, not the judge, must determine liability.” Sova v. City
of Mount Pleasant, 142 F.3d 898, 903 (6th Cir. 1998). But in
either case, “[t]he first step in a qualified immunity analysis

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6 Pouillon v. City of Owosso, et al. No. 98-1967
is whether, based on the applicable law, a constitutional
violation occurred.” Dickerson, 101 F.3d at 1157.
A
The initial question before us, therefore, is whether
Pouillon had the right to protest on city hall’s steps in the first
place. The Supreme Court’s analysis of governmental
authority to regulate speech, as given in Perry Educational
Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 44-46
(1983), divides public property that may be used for
expression by the public into several categories. The first
category, and the one most open for public expression, is that
of the “traditional public forum,” the quintessential examples
of which are public streets and parks. Id. at 45. In such fora,
“[t]he State may . . . enforce regulations of the time, place,
and manner of expression which are content-neutral, are
narrowly tailored to serve a significant government interest,
and leave open ample alternative channels of
communication.” Ibid. The second category includes public
property which the State has designated, perhaps only for a
given time, as open for use by the public for expressive
activity; during the time it is so open, the same standards
apply here as apply to traditional public fora. Id. at 45-46.
Finally, some public property may be neither traditional nor
designated public fora; in such venues the State may regulate
speech as it wishes, so long as the regulation is reasonable
and not motivated by opposition to the views thus suppressed.
Id. at 46.
Sergeant Little’s testimony indicated that she implicitly
regarded the steps of city hall as belonging to the third
category. That is, she drew a distinction between “City
property” and “public property,” asserted that the City of
Owosso might flatly prohibit any protests on or near the steps
of city hall, and indicated that upon a complaint from city hall
she could lawfully order a protestor like Pouillon to move
completely off the steps and adjoining plaza. She did not,
however, know of any ordinance prohibiting such protests.
She views the two sets of steps and plaza separating them as
No. 98-1967 Pouillon v. City of Owosso, et al. 11
C
The third question is whether requiring Pouillon to move
to the sidewalk was a reasonable time, place, and manner
restriction that, as the First Amendment requires, left open
ample alternative channels of communication. See Perry, 460
U.S. at 45. Under the circumstances presented here, this too
involved disputed claims as to Pouillon’s earlier experiences
of harassment on the streets, whether ordering him to return
there would inhibit his protest, as he claimed, and whether,
contrary to this claim, he in fact did resume regular picketing
on those sidewalks. Like the second question, whether
Pouillon’s actual protest impeded access, this third question
also should have gone to the jury.
D
The verdict form that was provided to the jury mixed the
preceding three questions together. It asked the jury to find
for either the plaintiff or the defendant on “Plaintiff’s claim
of violation of his federal constitutional right of free speech
and assembly.” The instructions amplifying this form said:
“I instruct you that the government may impose and enforce
reasonable time, place and manner restrictions on the exercise
of the First Amendment rights. Time, place and manner
restrictions may be imposed provided that they are justified
without reference to the content of the regulated speech, that
they are narrowly tailored to serve a significant government
interest, and that they leave open ample alternative channels
for communication.” Pouillon v. City of Owosso, et al., Civil
Action No. 97-CV-70413-DT, Jury Trial Proceedings, at 370-
71 (E.D. Mich. April 17, 1998). But the jury should not have
been free to decide, for example, that Pouillon had no right to
be on the steps and could be ordered off at the whim of
someone from City Hall. In particular, the jury must be
instructed that Pouillon had a right to demonstrate, and to be
free from arrest for doing so, unless either (a) his protest was,
as a matter of law, permissibly regulated by an appropriate
time, place, and manner restriction of general application, and
(first jury question) the application of the restriction to him

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10 Pouillon v. City of Owosso, et al. No. 98-1967
permitted in, or on the steps of, public buildings such as city
hall. See Perry, 460 U.S. at 46. But contrary to Sergeant
Little’s belief, Pouillon’s protest on the steps of city hall
could not be prohibited altogether.
B
The second question is then whether Pouillon’s actual
protest impermissibly interfered with public use of the steps.
Both Sergeant Little and Officer Blanchett testified that they
felt Pouillon was impeding access to the building, and
ultimately both sides agreed that this was one of the main
issues upon which the legality of the officers’ order turned.
As the Supreme Court has recognized, protest in even the
most traditionally open public fora, such as streets and parks,
may be regulated to protect those areas’ openness: “A group
of demonstrators could not insist upon the right to cordon off
a public street, or entrance to a public or private building, and
allow no one to pass who did not agree to listen to their
exhortations.” Cox, 379 U.S. at 555. Given Pouillon’s
general right to protest on city hall’s steps, the second
question to be answered in determining “whether a
constitutional violation occurred” in this instance is whether
Pouillon’s protest, in the manner it was actually being
conducted, was impeding access to city hall such that it was
reasonable to require him to move. This is clearly a factual
question, and if in dispute it is for the jury to resolve it.
In this case the facts are indeed in dispute. A photograph
of city hall’s steps, with a sedate Pouillon standing on the
plaza, at the foot of the upper set of steps and far to the edge
of the landing, was admitted into evidence as Plaintiff’s
Exhibit 2. But on direct examination of its witnesses, the
defense elicited testimony to the effect that this innocuous
scene does not represent the reality of December 22nd, and is
misleading as to whether Pouillon was potentially impeding
access to the building. Here we have a classic jury issue.
No. 98-1967 Pouillon v. City of Owosso, et al. 7
nonpublic property that can be regulated at will by the
property owner, i.e. the City of Owosso (presumably
assuming evenhandedness and absence of animus towards a
particular expression).
The issue before us is whether city hall’s steps are, instead,
a public forum. Insofar as this issue is a matter of law (there
might also be a factual question, e.g., whether a forum has
been transformed into a public one by historical practice), a
long line of cases concerning public fora fails to provide a
definitive answer. The Supreme Court has long accorded
recognition to public streets and parks as prime areas for
public protest, see, e.g., Hague v. C.I.O., 307 U.S. 496, 515-
16 (1939). The Court has also held that a state fairgrounds is
a “limited public forum” requiring comparable scrutiny of the
proposed regulation of speech there. See Heffron v.
International Soc. for Krishna Consciousness, 452 U.S. 651,
655 (1981). But when it comes to public buildings, the Court
has been more reticent. In Greer v. Spock, 424 U.S. 828, 836
(1976), the Court took pains to point out that the fact that a
government building is open to the public during specified
hours, and that the public may freely enter and leave its
grounds at all times, does not thereby transform that building
or those grounds into a public forum. The Court cited this
holding when, in United States v. Grace, 461 U.S. 175, 178
(1983), it invalidated a District of Columbia ordinance
restricting protests in and around the Supreme Court building,
but only insofar as the statute applied to the sidewalks
surrounding the building. These, the Court held, were a
traditional public forum which could not be restricted in this
all-encompassing way. But Grace left intact that portion of
the statute which proscribed protest on, for example, the
Supreme Court steps.
This drew a dissent from Justice Marshall, who found the
statute unconstitutional on its face and in its entirety, and
whose citations imply that government premises are
quintessential public fora afforded the strictest scrutiny for
First Amendment purposes. His citation most relevant to the
instant set of facts, Edwards v. South Carolina, 372 U.S. 232

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8 Pouillon v. City of Owosso, et al. No. 98-1967
(1963), is of a decision that had invalidated the conviction of
common-law breach of the peace of protestors on the
statehouse grounds in Columbia; it did not, however, do so
through public forum analysis. Rather, the convictions were
held to be unconstitutional because the arrests were based
only on the protestors’ expression of unpopular views; the
fact that the arrest had been on the statehouse grounds was
coincidental, although the Court noted that protesting there
involved “an exercise of . . . basic constitutional rights in their
most pristine and classic form.” Id. at 235.
It would seem a considerable stretch to make Edwards
stand for the flat proposition “that demonstrations on or near
legislative grounds fall within the protection of the First
Amendment,” as the District of Columbia District Court did
in Jeannette Rankin Brigade v. Chief of Capitol Police, 342
F. Supp. 575, 584 (D.D.C.), aff’d. 409 U.S. 972 (1972). In
that case, a three-judge court heard a challenge seeking
declaratory and injunctive relief from a federal statute
prohibiting demonstrations on the grounds of the United
States Capitol. The court held that a blanket prohibition of all
assemblies and demonstrations within the traditionally
accessible grounds of the national legislature, merely to
preserve “the ‘serenity’ of a ‘park-like’ setting,” was
illegitimate. Id. at 585. Crucial to its reasoning was the fact
that the Capitol grounds were traditionally an area of open
public access, in contrast to types of public property which
have been held not unrestrictedly open to the public and not,
therefore, public fora for purposes of open expression: this
includes such properties as jails (citing Adderly v.Florida, 385
U.S. 39 (1966); and libraries, schools, and hospitals (citing
Gregory v. Chicago, 394 U.S. 111 (1969) (Black, J.,
concurring at 118)). Id. at 583. But “streets, sidewalks,
parks, and other similar public places are so historically
associated with the exercise of First Amendment rights that
access to them for the purpose of exercising such rights
cannot constitutionally be denied broadly and absolutely
. . . .” Ibid. (quoting Amalgamated Food Employees Union
Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315
(1967)) (emphasis added).
No. 98-1967 Pouillon v. City of Owosso, et al. 9
Courthouses and the area surrounding them have been held
to be a special case. Grace, discussed supra at 7-8, did not
overturn the decision in Cox v. Louisiana, 379 U.S. 559
(1965), upholding a statute banning any demonstrations
outside a courthouse that are intended to affect the outcome
of a proceeding within. But that limited situation is a far cry
from the city hall steps of Owosso. The latter is a venue that
seems in the highest degree linked, traditionally, with the
expression of opinion, comparable not to a courthouse but to
a capitol building as a public forum. Numerous cases have
held that the United States Capitol, as well as state capitols,
are proper fora for demonstrations. See, e.g., Pinette v.
Capitol Square Review and Advisory Bd., 30 F.3d 675 (6th
Cir. 1994) (holding public square across from Ohio capitol
building a public forum); Shiel v. United States, 515 A.2d 405
(D.C. Ct. App. 1986) (holding the Capitol Rotunda might be
closed early prior to President’s address there, but must be
available to protestors during normal hours when open), cert.
denied, 108 S.Ct. 1477 (1988); Gaylor v. Thompson, 939 F.
Supp. 1363 (W.D. Wis. 1996) (Wisconsin state capitol
rotunda a public forum, based on its traditional open use);
ACT-UP v. Walp, 755 F. Supp. 1281 (M.D.Penn. 1991)
(similarly, Pennsylvania capitol rotunda); Chabad-Lubavitch
of Georgia v. Harris, 752 F. Supp. 1063 (N.D.Ga. 1990)
(plaza in front of Georgia state capitol a public forum by
designation).
In most of these cases, the issue is decided by reference to
the history of the building’s use; the record before us indicates
that no one raised the question of how Owosso’s city hall
steps had been used in the past, whether made available to
demonstrations or not. But in the absence of a showing that
the steps of this public building have been traditionally
restricted, we hold that the steps of Owosso’s city hall are a
traditional public forum, and that expression there cannot be
banned absolutely. Regulation of speech in that setting is, of
course, permissible within reason, just as regulation of speech
on sidewalks and parks is, but such regulations will be
subjected to the same strict scrutiny. Thus, “reasonable time,
place, and manner regulations,” if content-neutral, are

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