Abortion protester may be awarded attorney fees, rules US Supreme Court

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A §1983 plaintiff who obtained a permanent injunction to prevent police interference with planned abortion protests could be a “prevailing party” entitled to attorney fees, the U.S. Supreme Court has ruled in a per curiam decision.

The plaintiff is a member of a Christian group that conducts anti-abortion demonstrations in which protesters carry pictures of aborted fetuses. The plaintiff disbanded one protest at a busy intersection in North Carolina when county police threatened to issue tickets for breach of the peace. After choosing not to conduct protests in the county for several years, the plaintiff sued under §1983, alleging violations of his First Amendment rights.

A district court perma­nently enjoined the county sheriff from engaging in content-­based restrictions on the plaintiff’s display of graphic signs, but rejected the plaintiff’s claim for nominal damages.

The plaintiff argued that he was a “prevailing party” entitled to attorney fees under §1988, notwithstanding his failure to obtain monetary damages.

The Court agreed.

“The [district court] held that the defendants had violated [the plaintiff’s] rights and enjoined them from engaging in similar conduct in the future. Contrary to the Fourth Circuit’s view, that ruling worked the requisite material alteration in the parties’ relationship. Before the ruling, the police intended to stop [the plaintiff] from protesting with his signs; after the ruling, the police could not prevent him from demonstrating in that manner. So when the [district court] ‘ordered [d]efendants to comply with the law,’ the relief given – as in the usual case involving such an injunction – supported the award of attorney’s fees,” the Court said.

It remanded the matter for consideration of other factors that might justify the denial of attorney fees.

U.S. Supreme Court. Lefemine v. Wideman, No. 12-168. Nov. 5, 2012.