United States District Court, M.D. Florida, Ocala Division
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE
individuals or religious groups organize a prayer vigil and
gather in the Downtown Square in the City of Ocala to pray
for an end to violent crime, the First Amendment to the
United States Constitution will protect the “free
exercise” of their religion. But what if the government
organizes and sponsors the prayer vigil? That is a problem
because under the Establishment Clause of the First
Amendment, the government cannot conduct such religious
activity. Yet that is what happened here. While the Ocala
Police Chief and his subordinates were no doubt
well-intentioned and sincere in sponsoring the Prayer Vigil,
their actions violated the First Amendment.
the City of Ocala experienced a violent crime-spree in the
late summer and early fall of 2014, its police department
sought to curtail the violence using all available means. As
part of those efforts, Chief of Police Kenneth Gregory
“Greg” Graham met with members of Ocala's
faith-based community to seek their assistance. What resulted
was an invitation from Chief Graham to the community,
promoted on the Ocala Police Department facebook page and
elsewhere, encouraging everyone's attendance at a
“Community Prayer Vigil” on September 24, 2014 in
the Downtown Square. The plaintiffs, who are atheists,
contacted Chief Graham and Ocala's mayor, Reuben
“Kent” Guinn, in advance of the Vigil, advising
them of their concern that the City's promotion and
sponsorship of a Prayer Vigil would violate the United States
Constitution's Establishment Clause. The plaintiffs were
rebuffed, the Vigil took place, and this lawsuit followed.
to settle the case failed and the parties filed cross-motions
for summary judgment (Docs. 52, 53, 54) and responses thereto
(Docs. 61, 62, 64, 68). The Court held argument on the
motions on May 26, 2017, the record of which is incorporated
by reference. The parties made further efforts to settle, but
those too failed and the Court now issues this decision.
September 2014, the Ocala Police Department pursued various
means to try to apprehend those responsible for the recent
shooting spree that left several children injured. Graham
Dec. I (Doc. 52-1) at ¶¶ 5-6. The
police knew who the shooters were, but could not persuade
witnesses to come forward to testify. Graham Depo. (Doc.
54-10) at Tr. 21. Their efforts included meeting with local
leaders of the NAACP, who suggested to Chief Graham that the
police reach out to the local faith-based community for help
in convincing witnesses to cooperate. Graham Dec. I (Doc.
52-1) at ¶ 7. Heeding that suggestion, Chief Graham held
a meeting at the Ocala Police Department on September 17,
2014, with Captain Richard Edwards, the District Commander of
the area where most of the trouble was occurring; Officer
Mary Williams, who assisted Captain Edwards with community
events in the area; Captain Carmen Sirolli, the Captain in
charge of the division investigating the shootings; Major
Dennis Yonce, the Major to whom Sirolli reported; Hugh
Brockington, an Ocala Police Department Chaplain; Edwin
Quintana, another Police Chaplain; and Narvella Haynes, a
community activist who lived in the area where the crimes
occurred and who had previously assisted the police with
community outreach. Graham Depo. (Doc. 54-10) at Tr. 19-21.
purpose of the meeting was to develop ideas about how
“to get the ministers in that area to lean on, talk to,
encourage witnesses to come forward” so the police
could hold the perpetrators accountable. Graham Depo. (Doc.
54-10) at Tr. 21. Chaplain Edwin Quintana suggested that a
prayer vigil or similar event on Ocala's public Downtown
Square might bring the faith-based community together to get
the word out and encourage people to cooperate. Graham Dec. I
(Doc. 52-1) at ¶ 10; Graham Depo. (Doc. 54-10) at Tr.
23. Chief Graham “thought it was a great idea”
and said “Let's do it.” Graham Depo. (Doc.
54-10) at Tr. 23. Graham says he then left the meeting and
Quintana and Haynes began planning the Vigil, creating a
letter for Chief Graham's and Haynes' signatures that
invited the community to participate in the
Vigil. Graham Dec. I (Doc. 52-1) at ¶ 10;
Haynes Dec. (Doc. 52-2) at ¶¶ 7, 9; Quintana Dec.
(Doc. 52-3) at ¶¶ 5 & 6. Chief Graham read the
letter and directed an Ocala Police Department Sergeant to
post it on the Ocala Police Department's facebook page,
and Haynes and the Chaplains encouraged members of the
community to attend the Vigil. Graham Dec. I (Doc. 52-1) at
¶ 11; Graham Depo. (Doc. 54-10) at Tr. 31, 58; Graham
Inter. Resp. (Doc. 54-6) at # 1; Haynes Dec. (Doc. 52-2) at
¶ 8, Quintana Dec. (Doc. 52-3) at ¶ 7. Chief Graham
agreed that by posting the letter on the Ocala Police
Department facebook page, he was “promoting” the
Prayer Vigil. Graham Depo. (Doc. 54-10) at Tr. 50.
on Ocala Police Department letterhead (with the image of the
Ocala Police Department badge and words OCALA POLICE
DEPARTMENT displayed at the top, and the Department address
and phone number at the bottom), the text of the letter read:
Blessings to all our citizens, specifically Pastors,
Community Leaders, Parents and our precious youth.
We are facing a crisis in the City of Ocala and Marion County
that requires fervent prayer and your presence to show unity
and help in this senseless crime spree that is affecting our
Within the last 30 days we have had numerous shootings that
have resulted in two children and an infant being hit by
Stray bullets do not have respect for addresses, social
status, economic status, educational background, political
status and the list goes on. Buy my point is none of us are
exempt from stray bullets.
I am urging you all to please support a very important
“Community Prayer Vigil” that will be held this
coming Wednesday, September 24, 2014 at 6:30 pm to be held at
our Downtown Square located in the heart of the City.
Please support peace and this appeal for unity on this very
important “Community Prayer Vigil” coming this
next Wednesday. We need you.
letter was signed with “Blessings and Highest
Regards” by Greg Graham, as Chief of Police, and
Narvella Haynes. See Doc. 1, Ex. A. Here is an image
of the letter:
Police Department staff created a separate flyer about the
Vigil which depicts a photo of the gazebo covered stage in
the Downtown Square with an image of praying hands in one
corner and the Ocala Police Department logo in the opposite
corner, and the words “Community Prayer Vigil
Wednesday, September 24, 2014 6:30 p.m. Ocala/Marion County
is in crisis! Help Stop The Violence! Join us downtown on the
square.” Doc. 54-22 (marked Ex. 6) at 7. The Police
Chief's letter and an earlier version of the flyer
(created before the Ocala Police Department logo was added)
were sent to Narvella Haynes by Officer Williams on September
19. Doc. 54-23 (marked Ex. 7). Chief Graham stated he was
unaware of the existence of the flyer. Graham Dec. II (Doc.
68-1) at ¶ 4.
invited several local clergymen to participate in the Vigil
and sent an email to the Ocala Police Chaplains (copying
Graham) telling them that Chief Graham asked Quintana to ask
all the Chaplains to be present at the Vigil and to come
wearing their Police Chaplain uniforms. Quintana Dec. (Doc.
52-3) at ¶¶ 7, 8; Doc. 54-26 (marked Ex. 10)
(9/22/2014 email to chaplains from Quintana, copying
Graham). The Ocala Police Chaplain uniform differs
from the uniform of a sworn officer- the Chaplains wear white
shirts instead of blue, the sleeves bear patches that say
“CHAPLAIN” above the Ocala Police Department
patch, and the Chaplains do not carry weapons. Quintana Dec.
(Doc. 52-3) at ¶ 9; Doc. 54-19 (marked Ex. 3) at Page ID
1386, 1389, 1394, 1396, 1401, 1402 (photos of uniformed Ocala
Police Officers and uniformed Ocala Police Chaplains).
Ocala Police Department supplies and pays for the
Chaplains' uniforms. City Inter. Resp. (Doc. 54-5) at #
7. Chief Graham testified that when the Chaplains are in
their police uniforms, the public would perceive them as
being connected with the Ocala Police Department. Graham
Depo. (Doc. 54-10) at Tr. 165-66. The Chaplains have office
space in the Ocala Police Department's building.
Id. at Tr. 169. According to the Ocala Police
Department Directive, “Ocala Police Department
Chaplains are official members of the Ocala Police
Department[, ]” who are “appointed by the Chief
of Police, ” and are “considered members of the
staff of the Chief of Police in a support capacity and report
directly to the Chief of Police.” Doc. 52-6 (marked Ex.
2) at 2. “They are issued Police Identifications in the
form of an identification card with holder and badge[,
]” id., are issued cell phones, and are
authorized to drive Department vehicles. Ocala Police
Department Police Chaplain Section Manual, 2010, and as
reviewed 2015 (Doc. 54-74 (marked Ex. 58)) at 23-24, 36-37.
Chief Graham has the authority to terminate the Ocala Police
Chaplains. Graham Depo. (Doc. 54-10) at Tr. 168. Although the
Ocala Police Chaplains are volunteers, they are covered by
worker's compensation when performing official Department
duties. Doc. 52-6 (marked Ex. 2) at 2. All of the Ocala
Police Department Chaplains are of the Christian faith.
Graham Depo. (Doc. 54-10) at Tr. 157. Chief Graham agreed
that although it would be inappropriate for Ocala Police
Chaplains to try to “convert” people in the
course of their work for the Ocala Police Department,
“participating in a prayer vigil” would be part
of the official function of an Ocala Police Chaplain.
Id. at Tr. 78-79.
after the Vigil was advertised, several citizens, including
some of the plaintiffs, contacted Chief Graham and Mayor
Guinn, expressing concern that a prayer vigil organized by a
police department would violate the U.S. Constitution.
See, e.g., Doc. 52-9 at 3-4 (9/20/2014 6:03 p.m.
email); Doc. 54-51 (marked Ex. 35) at 2 (9/22/2014 5:14 p.m.
email). Initially, Chief Graham's responses tended to
take ownership of the Vigil, saying, for example, “I
have no intention of canceling the event, ” Doc. 54-40
(marked Ex. 24) at 4 (9/22/2014 4:05 p.m. email), and
“[t]his ‘vigil' is not the only strategy that
we [the Police Department] are employing to fight crime in
Ocala” and explaining that the purpose of the Vigil was
for the Police Department to engage the faith-based community
to help make the community safer. Doc. 52-9 at 3 (9/21/2014
2:43 p.m. email). As the Chief responded to one supporter who
wrote to him with the subject line “Stand tall on
Thanks for the encouraging words. I have been getting quite a
few responses from people, mostly from out of our area, who
oppose this. I have no intention on calling this gathering
off nor changing my personal belief on the power of prayer.
Take care and I hope to see you on Wednesday.
Doc. 54-55 (marked Ex. 39) (9/22/2014 3:55 p.m. email).
thereafter, however, Chief Graham began to distance himself
and his Department from the Vigil, responding that the Vigil
was a community event he could not stop and over which he had
no control. For example, on September 23, 2014, he wrote to
one citizen with whom he had been corresponding about the
meaning of the Establishment Clause, “I think you are
misunderstanding my role in this event. I am not leading the
event, I am not speaking at the event, I will be in
attendance at the event.” Doc. 54-49 at 5 (marked Ex.
33-B) (9/23/2014 4:07 p.m. email). He further wrote that he
knew the minister who was organizing it and could put the
citizen in touch in case he wanted to attend “and say a
few words.” Id. To another citizen, he wrote:
I am not sure if I have been clear in any of my prior emails
to you that this event tonight is a “Community Prayer
Vigil” not an Ocala Police Department or City of Ocala
Prayer Vigil and as such I have no say in whether it gets
canceled or not. I have indicated to several others that I
have no intent on canceling the event and should have
expanded my thoughts. If I were to try and cancel this event
I would be violating the Constitution by preventing people
from gathering and exercising their right to free speech.
Doc. 54-40 at 6 (marked Ex. 24-C) (9/24/2014 2:48 p.m. email
from Graham). See also Doc. 54-50 (marked
Ex. 34) (9/24/2014 1:27 p.m. email from Graham) (“I am
not attacking your rights as an American to freedom of
religion, I am upholding others['] rights to express
themselves . . . this is not a City of Ocala or Ocala Police
Department Prayer Vigil, it is a Community Prayer Vigil and
as such I have no say in canceling the event”).
there is no evidence that Kent Guinn, Ocala's Mayor, had
anything to do with the planning of the Prayer Vigil, once he
learned about it,  he readily embraced it as a
government-sponsored event, responding to a citizen's
complaint about what the citizen perceived to be the Police
Chief's endorsement of religion: “I think this is
great. I'll be sure to praise him [Chief Graham] for
it.” (Doc. 54-49 (marked Ex. 33) at 3 (9/19/2014 10:55
p.m. email from Guinn to citizen, copying Graham)). Mayor
Guinn wrote to Chief Graham about the Prayer Vigil two days
later, stating: “As I told you I think this is a great
idea and have been responding to the atheist groups that are
writing me about it. I put it on my calendar to be there,
” but telling Graham that next time he does
“things like that” to let the Mayor know so he
doesn't find out from his “church and random
emails.” Doc. 54-25 (marked Ex. 9) at 2 (9/21/2014
12:33 p.m. email from Guinn to Graham). The next day, Mayor
Guinn wrote to a protesting citizen who had urged the Mayor
to show leadership in addressing the Chief's violation of
the First Amendment, saying,
I'm proud to stand by my Chief and support him. Times
like this do test leadership and that's why we're
leading the community in this prayer vigil. Yes, we have
heard from folks like you who don't understand the
constitution. We are doing absolutely nothing wrong.
Doc. 54-51 (marked Ex. 35) (9/22/2014 6:43 p.m. email from
Guinn to citizen, copying Graham). In responding to another
citizen's concern about the upcoming Prayer Vigil, Mayor
Thanks for your interest in our community. There is nothing
in the constitution to prohibit us from having this vigil.
Not only are we not canceling it we are trying to promote it
and have as many people as possible to [sic] join us. We open
every council meeting with a prayer. And we end the prayer in
Jesus name we pray. Our city seal says “God be with
us” and we pray that he is and us with him.
Doc. 54-44 at 2 (marked Ex. 28-A) (9/22/2014 10:24 a.m. email
from Guinn to citizen, copying Graham and a pastor and
employee of Guinn's church (see Guinn Inter.
Resp. (Doc. 54-7) at # 19)).
upcoming Prayer Vigil became a matter of public debate in
Ocala, with the citizenry vocalizing opinions both for and
against it on social media, in communications to Chief Graham
and Mayor Guinn, and in local news outlets. For example, one
person wrote on the Ocala Police Department's facebook
page: “why are the police asking us to pray? will they
arrest us if we don't pray?” Doc. 54-18 (marked Ex.
2) at CM/ECF Page 4. Plaintiffs contacted counsel for The
American Humanist Association (now representing plaintiffs
here) who urged Chief Graham to remove the Prayer Vigil
letter from the Ocala Police Department facebook page on the
grounds that it was an unconstitutional government
endorsement of religion. Doc. 54-46 at 2 (marked Ex. 30-A)
(9/21/2014 10:47 a.m. email from David Niose to Graham).
Chief Graham responded that his efforts were upholding the
rights of others to assemble and that taxpayer funds were
used only to the minimal extent that Graham wrote the letter
and printed it on Department letterhead. Doc. 54-46 at 3
(marked Ex. 30-B) (9/21/2014 10:57 a.m. email from Graham to
Graham testified he would have removed the facebook posting
if the Mayor had directed him to do so. Graham Depo. (Doc.
54-10) at Tr. 161. Likewise, Mayor Guinn testified that he
had the authority to order Graham to remove the facebook
posting. Guinn Depo. (Doc. 54-1) at Tr. 54-55. Guinn also
said he had the authority to instruct that Ocala Police
Department Chaplains not lead prayers at the Prayer Vigil or
attend in Ocala Police Department Chaplain uniforms, but he
did not consider doing any of that because he believed those
actions were permitted under the Establishment Clause.
Id. Under the charter for the City of Ocala, the
Mayor is the sole municipal official in authority over the
Ocala Police Department and he recommends a chief of police
nominee to the City Council, who appoints the Chief. Guinn
Aff. (Doc. 53-1) at ¶ 3.
before the Prayer Vigil, the weather forecast apparently
called for possible rain. Captain Edwards sent an email to
Chief Graham, Ocala Police Chaplain Quintana and Ms. Haynes,
copying an Ocala Police Department officer, asking whether
they should secure an indoor location as an alternative. Doc.
54-28 (marked Ex. 12) at 2. Quintana's suggestion was
that the Vigil should take place on the Square with or
without rain, “[n]othing should stop, hinder or prevent
from [sic] fervent prayer, ” proposing they
“[k]eep it to 15-20 minutes of PRAYER only.”
Id. at 3 (capitalization in original). Captain
Edwards sent an email to an Ocala Police Department Major on
September 23, saying he would be “mentioning” the
Prayer Vigil at an upcoming staff meeting, Doc. 54-29 (marked
Ex. 13), and the following day he emailed an Ocala Police
Department Captain to say he might not make it to a meeting
because he was “working on getting this prayer vigil
set up.” Doc. 54-30 (marked Ex. 14).
Prayer Vigil took place on September 24, 2014 in the Downtown
Square in Ocala, a public space where meetings, rallies,
assemblies and other public and privately-sponsored events
occur. Graham Dec. I (Doc. 52-1) at ¶ 22; see
supra note 2. Chief Graham and Mayor Guinn both attended
the Prayer Vigil, but neither of them addressed the crowd.
Graham Inter. Resp. (Doc. 54-6) at # 1; Guinn Inter. Resp.
(Doc. 54-7) at # 15. Approximately ten people were on the
stage during the Prayer Vigil, including four uniformed Ocala
Police Chaplains, one off-duty Ocala Police Department
employee who was not in uniform, and five faith and/or
community leaders. Graham Inter. Resp. (Doc. 54-6) at # 3.
Not all of those persons spoke from the stage, but a number
who did speak were Ocala Police Department Chaplains. Doc.
54-16; Doc. 54-19 (marked Ex. 3) at Page ID 1386, 1389, 1390.
Chief Graham said he did not know in advance what any of the
speakers planned to say, but his recollection is that those
who did speak either prayed or sang. Graham Dec. I (Doc.
52-1) at ¶ 16; Graham Dec. II (Doc. 68-1) at ¶ 5;
Graham Depo. (Doc. 54-10) at Tr. 139-40. He did not hear any
non-Christians speak at the Prayer Vigil and the crowd
appeared to be predominately Christian. Graham Depo. (Doc.
54-10) at Tr. 96-99, 144-45. Mayor Guinn knew most of the
Ocala Police Department Chaplains by name, but said he had no
recollection as to who spoke. Guinn Depo. (Doc. 54-11) at Tr.
Guinn estimated that 500-600 people attended the Prayer
Vigil. Id. at Tr. 108. Chief Graham, who said the
Vigil lasted for about an hour, also said “[t]here were
a lot of people there, ” “definitely more than
100.” Graham Depo. (Doc. 54-10) at Tr. 139,
Chief Graham spent his time “engaging people in the
crowd, talking to them” and “attempt[ing] to
enlist their help with the crime spree.” Id.
at Tr. 140; Graham Dec. I (Doc. 52-1) at ¶ 21. In
addition to Chief Graham, other uniformed police officers
attended the Prayer Vigil to engage with the crowd and
provide security, consistent with the Department's
regular practice of having officers present at public
downtown gatherings. Graham Dec. I (Doc. 52-1) at ¶ 26.
The record includes photographs taken at the Prayer Vigil, as
well as transcripts from video and audio recordings taken by
one of the plaintiffs. See Doc. 54-19 (marked Ex.
3); Doc. 54-16. Plaintiffs note that in at least one
photograph, a uniformed officer appears to be participating
in prayer while sitting on the edge of the stage.
See Doc. 54-19 at Page ID 1392. While the recorded
statements in evidence were not the only speeches given at
the Prayer Vigil, there is no dispute that these speeches
Lucinda and Daniel Hale, who live in Marion County, had
visited the Downtown Square on a number of previous
occasions, such as to visit the farmer's market. L. Hale
Depo. (Doc. 54-15) at Tr. 31. The Hales heard about the
upcoming Prayer Vigil when someone told them about the Ocala
Police Department facebook posting, which they then viewed.
D. Hale Depo. (Doc. 54-14) at Tr. 7; L. Hale Depo. (Doc.
54-15 at Tr. 9). The facebook posting discussed the crisis of
crime affecting citizens of Ocala and Marion County, and Ms.
Hale agreed that crime creates a negative environment for all
citizens, but she felt that the message inviting everyone to
a Prayer Vigil did not include her or others who do not pray.
L. Hale Depo. (Doc. 54-15) at Tr. 17-19. Mr. Hale engaged in
email correspondence with the Mayor in advance of the Vigil,
expressing regret for the recent crime spree and applauding
the Chief for his attempts to curb crime, but explaining that
the Vigil invitation violated the Establishment Clause and
suggesting that the City promote a different rally
encouraging people to come forward with ideas about how to
stop crime. D. Hale Dep. (Doc. 54-14) at Tr. 17-18; 53.
Hales attended the Prayer Vigil and described it as similar
to a Christian tent revival. D. Hale Depo. (Doc. 54-14) at
Tr. 29, 47-48; L. Hale Depo. (Doc. 54-15) at Tr. 22-23. Ms.
Hale stated she is concerned about alleviating crime, which
was the purported purpose of the Prayer Vigil, but she felt
unable to participate in any part of what actually
transpired. L. Hale Inter. Resp. (Doc. 54-3) at # 8. Mr. Hale
did not observe any speaker encourage people to come forward
with ideas about how to stop crime. D. Hale Depo. (Doc.
54-14) at Tr. 53. Mr. Hale recalled that at least one speaker
was introduced from the stage as an Ocala Police Department
Chaplain. Id. at Tr. 43-44. He said he observed
uniformed police officers participating in the Prayer Vigil
by being part of a circle of people praying, bowing heads,
and holding hands. Id. at 29-30. Mr. Hale spoke with
Chief Graham at the Vigil, and they discussed the possibility
of Hale doing some volunteer work with the Ocala Police
Department in the future. Id. at Tr. 35, 54. Mr.
Hale feels that it is everyone's responsibility to better
the community. Id. at Tr. 54.
Art Rojas, who lives and works in Ocala, attended the Prayer
Vigil, which he described as being “essentially a
Christian revival” that was “not a comfortable
place for non-believers” and caused anyone present to
feel “some pressure to participate and show approval,
” lest they be seen as “publicly opposing the
police.” Rojas Inter. Resp. (Doc. 54-1) at # 14, 15.
Rojas said he attended the Vigil to see if there was going to
be a violation of the Establishment Clause. Rojas Depo. (Doc.
54-12) at Tr. 31. Rojas wishes for his community to be more
inclusive, and hopes that future events involving his
government will include all of Ocala's citizens, not only
Christians. Rojas Depo. (Doc. 54-12) at Tr. 37. Rojas thought
that the Police Department should represent everyone, but by
involving itself in the Prayer Vigil it did not represent
him. Id. at Tr. 25-26.
Jean Porgal attended the Vigil and, like Mr. Hale, recalled
that at least one speaker was introduced from the stage as an
Ocala Police Department Chaplain. Porgal Depo. (Doc. 54-13)
at Tr. 32. Porgal observed that “police representatives
spent no time discussing the crimes that had recently
occurred, ” or “requesting assistance” from
the community, or urging people to come forward with
information; instead, speakers prayed, preached, and sang.
Porgal Inter. Resp. (Doc. 54-2) at # 8.
after the Prayer Vigil, congratulatory emails circulated
within the Ocala Police Department, thanking the Chief,
Captains, Officers, Chaplains, and Ms. Haynes for their
efforts regarding the Prayer Vigil. See Doc. 54-32
(marked Ex. 16). Captain Edwards sent an email to Ms. Haynes,
Chaplain Quintana, copying Chief Graham and Officer Williams,
thanking everyone for helping and “allow[ing] the
PRAYER VIGIL to take place[, ]” remarking that
“[t]here was opposition but Isaiah 54:17 says ‘No
weapon that is formed against thee shall prosper; and every
tongue that shall rise against thee in judgment thou shalt
condemn.'” Id. at 2 (capitalization in
original; additional emphasis omitted). Edwards suggested a
meeting to discuss the next steps including another possible
vigil, and closed with, “‘Romans 8:28 ‘And
we know that all things work together for good to them that
love God, to them who are the called according to his
purpose.'” Id. at 2 (emphasis omitted).
Chaplain Quintana replied to Captain Edwards, saying
“God bless you Captain for organizing” the Prayer
Vigil, and saying he (Chaplain Quintana) was honored that
Captain Edwards invited him. Id. at 4.
thereafter, Chief Graham told Ms. Porgal about an
anti-bullying rally scheduled for the Downtown Square where
the Prayer Vigil had occurred. Ms. Porgal and the Hales
attended and participated by carrying signs discouraging
bullying in schools. D. Hale Depo. (Doc. 54-14) at Tr. 55; L.
Hale Depo. (Doc. 54-15) at Tr. 31-32. Chief Graham testified
that going forward, he would not permit the Chaplains to
participate in public events while wearing their Ocala Police
Department uniforms if the event involved leading prayers,
not because it was necessarily inappropriate, but to keep
from getting sued. Graham Depo. (Doc. 54-10) at Tr. 164-68.
Subsequent public prayer events have been held in Ocala, at
least one of which was organized and sponsored by a church.
Id. at 74; Doc. 54-76 at 5.
months after the Prayer Vigil, plaintiffs filed suit under 42
U.S.C. §§ 1983 and 1988(b) and are now seeking
nominal damages, attorneys' fees, and costs against the
City of Ocala, and Mayor Guinn and Chief Graham in their
individual capacities, for their alleged violations of the
Establishment Clause of the First Amendment. See
Docs. 1 and 22. The parties' cross-motions for summary
judgment are now before the Court.
Standard of Review
district court must grant summary judgment ‘if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.'” Atheists of Fla., Inc. v. City
of Lakeland, 713 F.3d 577, 589 (11th Cir. 2013) (quoting
Fed.R.Civ.P. 56(a)). In making this assessment, the court
“view[s] all facts and reasonable inferences drawn
therefrom in the light most favorable to the non-moving
party.” Id. (quotation, citation, and
alteration omitted). Conclusory statements are insufficient
to create a disputed issue as to a material fact. Carter
v. City of Melbourne, 731 F.3d 1161, 1167 (11th Cir.
2013) (citation omitted). “Issues of fact are
‘genuine' only if a reasonable jury, considering
the evidence presented, could find for the nonmoving
party.” Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). “The
principles governing summary judgment do not change when the
parties file cross-motions for summary
judgment.” T-Mobile S. LLC v. City of
Jacksonville, 564 F.Supp.2d 1337, 1340 (M.D. Fla. 2008).
Graham and the City argue that plaintiffs lack standing to
bring this case. At issue here is Article III standing,
which requires that plaintiffs show (1) they “have
suffered an ‘injury-in-fact;'” (2) there is a
“causal connection between the injury and the
[defendants'] conduct;” and (3) the injury will
“likely” “be redressed by a favorable
decision.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992) (quotations and citations omitted).
In an Establishment Clause case, a “non-economic injury
which results from a party's being subjected to unwelcome
religious statements” may be sufficient to demonstrate
an “injury in fact” resulting from the
defendant's conduct “so long as the parties are
‘directly affected by the laws and practices against
whom their complaints are directed.'” Saladin
v. City of Milledgeville, 812 F.2d 687, 692 (11th Cir.
1987) (quoting Sch. Dist. of Abington Twp. v.
Schempp, 374 U.S. 203, 224 n.9 (1963)). Yet, a party
must show more than a mere psychological suffering
“produced by observation of conduct with which one
disagrees.” Valley Forge Christian Coll. v. Ams.
United for Separation of Church and State, Inc., 454
U.S. 464, 485 (1982). A “spiritual stake in First
Amendment values” is not enough to show injury to
support standing. ACLU v. Rabun Cty. Chamber of Commerce,
Inc., 698 F.2d 1098, 1103 (11th Cir. 1983). However,
where a party is forced to choose between being
“subjected to unwelcome religious exercises” and
being “forced to assume special burdens to avoid them,
” that party has suffered an injury in fact sufficient
to support standing. Valley Forge, 454 U.S. at 486,
n.22; see Saladin, 812 F.2d at 693 (holding
plaintiffs who were City residents bore “more than an
abstract interest” in having City remove word
“Christianity” from its city seal, demonstrating
an injury in fact).
Rabun County, a group of Georgia residents,
motivated by their spiritual beliefs or commitment to the
separation of church and state, challenged the placement of a
large illuminated cross in Georgia's Black Rock Mountain
State Park. 698 F.2d at 1101, 1107-08. The Eleventh Circuit
found that, notwithstanding the plaintiffs' motivations
in bringing suit, two of the plaintiffs demonstrated an
injury in fact sufficient to create standing because they
were residents of Georgia (albeit living more than 100 miles
from Black Rock State Park), made use of the state parks, and
their use of Black Rock was affected by “the physical
and metaphysical impact of the cross.” Id. at
1107-08. Thus, they faced a “special burden” of
having to use other parks, or using Black Rock, but being
subjected to unwelcome religious symbolism if they did so.
Id. at 1108. The Eleventh Circuit also stressed that
the severity of the plaintiffs' injuries was irrelevant;
so long as they demonstrated some direct stake in the
outcome, as opposed to a mere interest in the matter, they
had shown an injury in fact. Id. (quoting United
States v. SCRAP, 412 U.S. 669, 689, n.14 (1973));
see also Pelphrey v. Cobb Cty., 547 F.3d 1263,
1279-80 (11th Cir. 2008) (finding plaintiff had standing to
challenge invocation at planning commission meetings where he
attended three meetings and watched other meetings on the
Court found plaintiffs had standing when it ruled on
defendants' motion to dismiss. See Doc. 22,
adopting Report and Recommendation, Doc. 14. The factual
development of the case since then further supports that
determination. The undisputed facts reveal that the Hales are
residents of Marion County who have attended events in the
Downtown Square in Ocala. They saw the Ocala Police
Department facebook page and attended the Prayer Vigil
because they wanted to observe, but also because they have
interest in being a part of the community and are concerned
about crime. They attended the Prayer Vigil but were unable
to participate in any of the activity because the speakers
only invited the audience to pray and sing. The Hales have
more than a mere interest in the matter. They have
demonstrated an injury in fact. Similarly, Art Rojas lives
and works in the City of Ocala. He saw the Ocala Police
Department facebook page and attended the Prayer Vigil. He
wants his community to be inclusive of all its residents, not
just Christians. Like the Hales, Rojas has more than a mere
interest in the matter and has demonstrated injury in fact.
demonstrated injury in fact, the causal connection and
redressability prongs of standing are easily satisfied here.
Plaintiffs' injuries are causally connected to the Prayer
Vigil which they contend was sponsored by the City of Ocala
and its Chief of Police. If proven, an award of nominal
damages for conduct that violated the Establishment Clause
would redress their injuries. See, e.g., Amnesty
Int'l, USA v. Battle, 559 F.3d 1170, 1177-78 (11th
Cir. 2009) (explaining that § 1983 allows for the
recovery of nominal damages when constitutional rights are
violated but do not result in injury giving rise to
compensatory damages); Covenant Media of S.C., LLC v.
City of North Charleston, 493 F.3d 421, 428 (4th Cir.
2007) (holding that unconstitutional application of the law
created a claim redressable by nominal damages); Rabun
County, 698 F.2d at 1104, n.10 (explaining that the
causal connection requirement was not at issue and, ...