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Shurtleff v. City of Boston

United States District Court, D. Massachusetts

May 3, 2019

HAROLD SHURTLEFF et al., Plaintiffs,
v.
CITY OF BOSTON et al., Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiffs Harold Shurtleff and Camp Constitution (collectively, “Plaintiffs”) filed this lawsuit against Defendants, the City of Boston and Gregory T. Rooney, in his official capacity as Commissioner of the City of Boston Property Management Department (collectively, “Defendants” or “the City”), seeking to enjoin the City from denying permission to the Plaintiffs to display the Christian flag on a City Hall flagpole in conjunction with their Constitution Day and Citizenship Day event. D. 1. Defendants have now moved for judgment on the pleadings. D. 39. For the reasons discussed below, the Court DENIES Defendants' motion for judgment on the pleadings, D. 39.

         II. Standard of Review

         Rule 12(c) allows a party to move for judgment on the pleadings at any time “[a]fter the pleadings are closed-but early enough not to delay trial.” Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), is “ordinarily accorded much the same treatment” as a Rule 12(b)(6) motion. Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006). To survive a motion for judgment on the pleadings, therefore, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Because a motion for judgment on the pleadings “calls for an assessment of the merits of the case at an embryonic stage, ” the Court “view[s] the facts contained in the pleadings in the light most favorable to the nonmovant and draw[s] all reasonable inferences therefrom” in their favor. Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citation omitted).

         On a Rule 12(c) motion, unlike a Rule 12(b) motion, the Court considers the pleadings as a whole, including the answer. See Aponte-Torres, 445 F.3d at 54-55. Those assertions in the answer that have not been denied and do not conflict with the assertions in the complaint are taken as true. See Santiago v. Bloise, 741 F.Supp.2d 357, 360 (D. Mass. 2010). In addition, “[t]he court may supplement the facts contained in the pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice.” R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006).

         III. Factual Background

         The City owns and manages three flagpoles located in front of the entrance to City Hall, in an area called City Hall Plaza. D. 11-1 ¶ 5. The three poles are the same height, approximately 83 feet tall. D. 11-1 ¶ 6. One pole regularly displays the flags of the United States and the National League of Families Prisoner of War/Missing in Action (“POW/MIA”) flag. D. 11-1 ¶ 8. A second pole flies the flag of the Commonwealth of Massachusetts. Id. The dispute in this case centers on the third flagpole, which displays the City of Boston flag except when replaced by another flag- usually at the request of a third-party. Id. ¶¶ 8-9. Such a request is often made in conjunction with a proposed third-party event to take place at a location owned by the City, one of which is City Hall Plaza. D. 11 at 2. Examples of other flags that have been raised on the third flagpole are country flags, e.g., the flags of Brazil, Ethiopia, Portugal, Puerto Rico, the People's Republic of China and Cuba, and the flags of private organizations, including the Juneteenth flag recognizing the end of slavery, the LGBT rainbow pride flag, the pink transgender rights flag, and the Bunker Hill Association flag. D. 1 ¶¶ 36-37; D. 43 at 18; D. 11 at 2. As Plaintiffs allege, the flag of Portugal contains “dots inside the blue shields represent[ing] the five wounds of Christ when crucified” and “thirty dots that represents [sic] the coins Judas received for having betrayed Christ.” D. 1 ¶ 36. The City of Boston flag includes the Boston seal's Latin inscription, which translates to “God be with us as he was with our fathers.” D. 1 ¶ 41(a). As Plaintiffs note, the Bunker Hill Flag contains a red St. George's cross. D. 1 ¶ 41(b). Many religious groups, including Plaintiffs, have held events at City-owned properties in the past. D. 8 at 4; D. 11 at 3.[1]

         To apply for a permit to raise a flag at City Hall and hold an event on a City-owned property, a party submits an application to the City. D. 11 at 3; D. 11-1 ¶ 13. The City has published guidelines on its website for applicants. D. 8 at 3; D. 11 at 3; D. 11-1 ¶ 13. The guidelines state that an application may be denied if the event involves illegal or dangerous activities or if it conflicts with scheduled events. D. 8 at 3-4; D. 11 at 3. In addition, an application may be denied if the applicant lacks an insurance certification, lies on their application, has a history of damaging city property or failing to pay city fees or fails to comply with other administrative requirements. D. 8 at 4; D. 11 at 3. After a party has submitted an application, the City reviews the request to ensure it complies with all guidelines. D. 1-8 at 2; D. 11 at 3; D.11-1 ¶ 15. The Commissioner of Property Management reviews applications for the City flagpole to ensure flag requests are “consistent with the City's message, policies, and practices.” D. 11 at 3; D. 11-1 ¶¶ 16-17. The City does not have a written policy regarding the content of flags to be raised. D. 8 at 4.

         On July 28, 2017, Plaintiff Shurtleff emailed the City on behalf of his organization, Camp Constitution, requesting to “raise the Christian flag on City Hall Plaza, ” accompanied by “short speeches by some local clergy focusing on Boston's history” on one of several dates in September 2017. D. 1-1. The email included a photograph of the Christian flag, D. 1-1, which “displays a red Latin cross against a blue square bordered on three sides by a white field.” D. 1-4. On September 5, 2017, the City denied Shurtleff's request to raise the Christian flag without explanation. D. 1-3. Shurtleff asked for the “official reason” for denying the permit. Id. Defendant Rooney wrote to Shurtleff that “[t]he City of Boston maintains a policy and practice of respectfully refraining from flying non-secular flags on the City Hall flagpoles.” D. 1-4. Rooney further explained that the City's “policy and practice” was based upon the First Amendment prohibition on government establishing religion and the City's authority to decide how to use its flagpoles, which are a “limited government resource.” Id. Rooney concluded that “[t]he City would be willing to consider a request to fly a non-religious flag, should [Shurtleff's] organization elect to offer one.” Id. In response, Plaintiffs' counsel sent a letter to the City on September 14, 2017, taking the position that the denial was unconstitutional and declining to “submit a ‘non-religious' flag.” D. 1-6 at 2. Plaintiffs' counsel attached a second application for “Camp Constitution's Christian Flag Raising” on October 19 or October 26, 2017. D. 1-5. The stated purpose of the event was to “[c]elebrate and recognize the contributions Boston's Christian community has made to our city's cultural diversity, intellectual capital and economic growth.” Id. The letter stated that if Plaintiffs did not receive a response by September 27, 2017, Plaintiffs would take “additional actions to prevent irreparable harm to the rights of [their] clients.” D. 1-6 at 4. The City neither issued a permit to Plaintiffs nor responded to the letter. D. 8 at 5; D. 11 at 4. Since receiving the letter, Plaintiffs have not applied to hold further events on City-owned property, with or without a flag. D. 11 at 19-20.

         IV. Procedural History

         On July 6, 2018, Plaintiffs filed the present complaint seeking injunctive relief, declaratory relief and damages against Defendants. D. 1. Plaintiffs moved for a preliminary injunction, D. 7, which the Court denied on August 29, 2018, D. 19. Plaintiffs have appealed the Court's decision denying them injunctive relief to the First Circuit. D. 23. The Court denied Plaintiffs' motion to stay these proceedings during the pendency of that appeal. D. 34. Defendants have now moved for judgment on the pleadings. D. 39. The Court heard the parties on the pending motion and took the matter under advisement. D. 46.

         V. Discussion

         Plaintiffs have asserted six claims-three federal and three state constitutional: 1) a violation of the First Amendment free speech clause; 2) a violation of the First Amendment establishment clause; 3) a violation of the Fourteenth Amendment equal protection clause; 4) a violation of the freedom of speech clause of Article 16 of the Massachusetts Declaration of Rights; 5) a violation of the non-establishment of religion clauses of Articles 2 and 3 of the Massachusetts Declaration of Rights; and 6) a violation of equal protection under Articles 1 and 3 of the Massachusetts Declaration of Rights. The City seeks judgment on the pleadings as to all of those claims. Federal law governs the Court's analysis of Plaintiffs' claims under both the United States and Massachusetts Constitutions. See, e.g., Commonwealth v. Barnes, 461 Mass. 644, 650 (2012) (classifying the free speech provisions of Article 16 of the Massachusetts Declaration of Rights as a “cognate provision” of the First Amendment); Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 243 (2006) (noting that “[t]he standard for equal protection analysis under [Massachusetts'] Declaration of Rights is the same as under the Federal ...


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