Oct 25, 2022 – The owners of a café that sued a local health agency over citations issued for violations of a mask mandate failed to show the agency engaged in a pattern of constitutional violations, the U.S. Court of Appeals for the Seventh Circuit has held.

In Helbachs Café LLC v. City of Madison, et al., No. 21-3338 (Aug. 15, 2022), the Seventh Circuit also held that the owners of the café failed to show that the activity of the agency’s employees posed an obvious risk of constitutional violation.

‘Mask Free Zone’

On July 7, 2020 Public Health Madison and Dane County (PHMDC) issued an emergency order that required: 1) all people age 5 and up to wear a facemask when inside a building with other people, except for a person’s own household; and 2) businesses to post “Mask Required” signs.

On that date, Casey Helbach, an owner of a family-owned café in Middleton, hung a paper sign in the window of the café. The sign read “Mask Free Zone. Please remove mask before entering.”

Someone took a photo of the sign and posted the photo online and the post went viral. About a half hour after he posted the sign, Helbach took it down.

PHMDC issued three citations to the café for failing to enforce the mask mandate and for posting the mask-free-zone sign.

In August 2020, the Dane County Sheriff served the Helbachs with a notice of intent to revoke the café’s food and drink license. The notice specified that to avoid the revocation, the Helbachs must comply with the emergency order and refrain from communicating that the café was a mask-free zone.

Media Firestorm

The social media post about the sign and news of the citations combined to create, in the words of the café’s landlord, Terrence Wall, “a negative atmosphere” in the shopping center where the café was located.

Protesters descended on the café three times, and an assistant city attorney spoke about the dispute on camera.

The Helbachs set up a GoFundMe page to raise money for a lawsuit against PHMDC and used the page to criticize the PHMDC and the emergency order. Wall also learned of threats about boycotting the shopping center.

Wall decided not to renew the Helbachs’ lease. He told the Helbachs they had to be out of the shopping center by Aug. 31, 2020.

On Aug. 10, 2020, the Helbachs sued the city, county, Madison Assistant City Attorney Marci Paulsen, and two PHMDC employees in Dane County Circuit Court.

The Helbachs sought damages for alleged violations of their rights under the First Amendment. The Helbachs also sought an injunction prohibiting the defendants from selectively enforcing the sign requirement and bringing any enforcement action against them.

The defendants removed the case to federal court on Aug. 12, 2020.

On Aug. 19, 2020, the Helbachs dropped their request for a preliminary injunction in exchange for a stipulation that PHMDC would dismiss the citations and cancel the revocation hearing. PHMDC complied with the stipulation on Aug. 20.

In spring 2021, both parties moved for summary judgment in the U.S. District Court for the Western District of Wisconsin. The district court granted summary judgment to the defendants on the federal claims and remanded the Helbachs’ state law claims to state court.

The Helbachs’ appealed the grant of summary judgment on one of the federal claims, a First Amendment retaliation claim.

Helbachs Have Standing

Writing for a three-judge panel, Judge Thomas Kirsch explained that the Helbachs had suffered a concrete injury sufficient to confer standing on them.

Kirsch noted that it was true that the Helbachs had shown no evidence that their speech was curtailed because of retaliation, the type of injury usually present in a First Amendment retaliation claim.

But Kirsch pointed out that the Helbachs had suffered an injury in addition to the dismissed citations and the canceled revocation hearing: the non-renewal of their lease.

“There is no dispute that Helbachs did move locations after this occurred,” Judge Kirsch wrote. “Drawing the favorable inference from these undisputed facts that Helbachs lost its lease because of the defendants’ actions, these injuries are sufficiently concrete to confer standing.”

Lack of Evidence

In order to make out a First Amendment retaliation claim, Judge Hirsch explained, the Helbachs must show that: 1) they were deprived of a federal right and; 2) the deprivation occurred either as the result of a municipal custom or policy or was committed by someone with final policy-making authority.

The Helbachs argued that PHMDC customarily pre-wrote citations that resulted in constitutional deprivations. The Helbachs also argued that the defendants had failed to adequately train PHMDC employees, which resulted in a violation of the Helbachs’ constitutional rights.

Judge Hirsch explained that the Helbachs had given no evidence of a pattern of similar violations against other businesses.

“At oral argument, Helbachs conceded there was no evidence to this in the record but claimed that here were additional cases of similar actions taken against other businesses,” Hirsch wrote.

“But Helbachs provided nothing from the record to support this claim … without any evidence of a pattern or practice, no reasonable jury could find that retaliation against Helbachs occurred as a result of any municipal policy, express or implied.”

Judge Hirsch pointed out that the need for training by a government agency can be so obvious – say, in the case of the use of deadly force – that the failure to provide such training can be characterized as deliberate indifference to a plaintiff’s constitutional rights.

But that wasn’t the case with PHMDC, Hirsch reasoned.

“The compliance program Helbachs takes issue with sends PHDMC employees out to conduct health inspections of restaurants, an activity that poses no obvious risks to the First Amendment rights of food and drink license-holders,” Judge Hirsch wrote.

“Though Helbachs views the risk of unconstitutional retaliation through the issuance of citations having been obvious, it provides no evidence of that, save for its own experience with PHMDC in this case.”