No. 13-1635
Bible Believers, et al. v. Wayne County, et al.
Page 37
state interest—protection of the President—yet the officers’ actions were still deemed to be
unreasonable. See Wood v. Moss, 134 S. Ct. 2056, 2061 (2014) (citing Watts v. United States,
394 U.S. 705, 707 (1969)) (“[S]afeguarding the President is . . . of overwhelming importance in
our constitutional system.”).
Had the Bible Believers refused to leave, and consequently been arrested, charged, and
convicted of disorderly conduct, the convictions could certainly be held invalid pursuant to
Gregory.
21
The Bible Believers’ decision to comply with the police officers’ demands, under
threat of arrest for disorderly conduct—as opposed to the speaker’s decision in Gregory to
disregard the officer’s command—cannot stand for the proposition that there was no clearly
established law as to whether the police may threaten to arrest a peaceful speaker in order to
calm a hostile crowd of hecklers.
22
Gregory, like this case, involved protestors who used
offensive language and, in response, were assaulted with debris by a violent crowd of hecklers.
21
Disorderly conduct is governed by Mich. Comp. Laws § 750.167. The only provision of this statute that
is at all remotely relevant to the Bible Believers’ conduct is subsection (l), which reads: “A person who is found
jostling or roughly crowding people unnecessarily in a public place.” As in Gregory:
The so-called ‘diversion tending to a breach of the peace’ . . . was limited entirely and exclusively
to the fact that when the policeman in charge of the special police detail concluded that the
hecklers observing the march were dangerously close to rioting and that the demonstrators and
others were likely to be engulfed in that riot, he ordered Gregory and his demonstrators to leave,
and Gregory—standing on what he deemed to be his constitutional rights—refused to do so. . . .
[T]he conduct involved here could become ‘disorderly’ only if the policeman’s command was a
law which the petitioners were bound to obey at their peril. But under our democratic system of
government, lawmaking is not entrusted to the moment-to-moment judgment of the policeman on
his beat. . . . To let a policeman’s command become equivalent to a criminal statute comes
dangerously near making our government one of men rather than of laws. There are ample ways
to protect the domestic tranquility without subjecting First Amendment freedoms to such a clumsy
and unwieldy weapon.
Gregory, 394 U.S. at 120–21 (Black, J., concurring) (citations omitted).
22
Judge Gibbons’ dissent maintains that the clearly established right on which we base our holding is a
speaker’s “specific right . . . to be free from an effective removal when his safety and the safety of others have been
compromised by an unforeseen violent mob occasioning physical injury on both the speaker and innocent
bystanders.” Gibbons Dis. 52. This statement both misapprehends our holding and mischaracterizes the record.
With regard to the factual inaccuracies, there is no indication that anyone other than the Bible Believers themselves,
including any so-called “innocent bystanders,” suffered physical injury as a result of the audience’s hostile reaction
to the group’s proselytizing. Further, after the first bottle was thrown, and the Bible Believers informed the officer
objecting to their use of the megaphone that they were being pelted with garbage by the adolescent crowd, there was
nothing “unforesee[able]” about the risk of further aggression from this particular audience. In terms of legal
misconceptions, contorting our opinion to hold that a constitutional violation inevitably occurs when a speaker is
removed after his safety has been compromised by a lawless mob ignores our emphasis on law enforcement’s
obligation to attempt to prevent violence occasioned by unruly crowds—as the law enforcement agency’s resources
permit—before resorting to cutting off constitutionally protected speech. This order of operations, which first
requires officers to make sincere efforts to maintain order and protect the speaker, assures that law enforcement’s
conduct is narrowly tailored to serve the compelling government purpose of assuring public safety.