104 F.Supp.2d 1280 (D.Colo. 2000), Civ. A. 98 N 2554, Faustin v. City and County of Denver, Colorado

Docket Nº:Civ. A. 98 N 2554
Citation:104 F.Supp.2d 1280
Party Name:Faustin v. City and County of Denver, Colorado
Case Date:March 31, 2000
Court:United States District Courts, 10th Circuit, District of Colorado
 
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Page 1280

104 F.Supp.2d 1280 (D.Colo. 2000)

Wendy FAUSTIN, Plaintiff,

v.

CITY AND COUNTY OF DENVER, COLORADO; Tom Sanchez, in his official capacity as Chief of the Denver Police Department; Lt. Donald Fink, in his official capacity as an officer of the Denver Police Department; and Sgt. W.P. Honer, in his official capacity as an officer of the Denver Police Department, Defendants.

No. Civ.A. 98 N 2554.

United States District Court, D. Colorado.

March 31, 2000

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Stephen M. Crampton, Michael J. DePrimo, Brian Fahling, Bryan J. Brown, American Family Association Law Center, Tupelo, MS, for plaintiff.

Stanley M. Sharoff, Geoffrey S. Wasson, City Attorney's Office, Denver, CO, for defendants.

ORDER AND MEMORANDUM OF DECISION

NOTTINGHAM, District Judge.

This is civil-rights action. Plaintiff Wendy Faustin alleges that Defendants City and County of Denver, Colorado ("Denver"), Denver Chief of Police Tom Sanchez, Denver Police Lieutenant Donald Fink, and Denver Police Sergeant W.P. Honer have curtailed her protesting activities in violation of her rights under the First and Fourteenth Amendments to the United States Constitution. Faustin seeks declaratory and injunctive relief, as well as nominal damages and attorney fees, under 42 U.S.C.A. § 1983 (West 1994 & Supp.1999) [hereinafter "section 1983"]. The matter is before the court on: (1) "Plaintiff's Motion for Summary Judgment" filed March 22, 1999; and (2) "Defendants' Motion for Summary Judgment" filed April 8, 1999. Jurisdiction is based on 28 U.S.C.A. §§ 1331, 1343(a)(3)-(4) (West 1993), and 28 U.S.C.A. §§ 2201-02 (West 1994).

FACTS

Because of her religious and/or ethical convictions, Faustin regularly protests abortion throughout Denver in public fora where she can convey her message to significant numbers of passersby. (Pl.'s Br. in Supp. of Mot. for Summ.J., Statement of Undisputed Material Facts ¶ 6; [filed Mar. 22, 1999] [hereinafter "Pl.'s Br."]; admitted at Defs.' Resp.Br. in Opp'n to Pl.'s Mot. for Summ.J., Resp. to Statement of Undisputed Material Facts ¶ 6 [filed Apr. 8, 1999] [hereinafter "Defs.' Resp."].) On numerous occasions, Faustin has traveled to an overpass located in Denver at the juncture of Sixth Avenue and Perry Street ("Perry Street Overpass"), where she and others have located themselves on the sidewalk of the overpass and displayed a banner with the message, "Abortion kills children." ( Id., Statement of Undisputed Material Facts ¶ 7; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 7.) The banner is approximately three feet high and ten feet wide when unfurled. (Defs.' Mem.Br. in Supp. of Their Mot. for Summ.J., Statement of Undisputed Material Facts ¶ 2 [filed Apr. 8, 1999] [hereinafter "Defs.' Br."]; admitted at Pl.'s Br. in Opp'n to Defs.' Cross Mot. for Summ.J., and Reply to Defs.' Br. in Opp'n to Pl.'s Mot. for Summ.J., Resp. to Statement of Undisputed Material Facts ¶ 2 [filed Apr. 26, 1999] [hereinafter "Pl.'s Resp."].) Denver maintains and operates

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the Denver Police Department, whose officers have, in the past, applied a Denver ordinance against posting signs, Denver, Colo., Mun.Code art. I, ¶ 3-1 (1950) [hereinafter "Posting Ordinance"], against Faustin's protest activities on the Perry Street Overpass. (Pl.'s Br., Statement of Undisputed Material Facts ¶ 1; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 1.) 1 Further, the Colorado Department of Transportation prohibits the display of all sips and banners on overpass sidewalks and walkways throughout the Denver metropolitan area, regardless of the content of those signs and banners. (Defs.' Br., Statement of Undisputed Material Facts ¶ 9; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 9.) Plaintiff has engaged in speech, including picketing or carrying signs, without interference or hindrance from Denver police or other city officials officers at any location except the Perry Street Overpass. ( Id., Statement of Undisputed Material Facts ¶ 10; admitted in pertinent part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts¶ 10.)

The sidewalk on the Perry Street Overpass is public property, intended to be used for pedestrian traffic to cross over the highway. (Pl.'s Br., Statement of Undisputed Material Facts ¶ ¶ 9-10; admitted in pertinent part at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ ¶ 9-10.) The sidewalk along the overpass is located between the roadway and a six-foot-high chain-link fence. ( Id., Statement of Undisputed Material Facts ¶ 12; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 12.) Every time police observed Faustin displaying her banner, the banner was hand-held rather than affixed to any inanimate object. ( Id., Statement of Undisputed Material Facts ¶ 13; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 13.) When the banner is displayed, a large number of passing motorists driving beneath the Perry Street Overpass and along Sixth Avenue are able to view the banner. ( Id., Statement of Undisputed Material Facts ¶ 11; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 11.)

On December 5, 1997, Faustin and others were standing on the sidewalk at the Perry Street Overpass, displaying their hand-held banner to passersby when Denver Police Officer L.M. Lindsay approached them. ( Id., Statement of Undisputed Material Facts ¶ 14; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 14.) Officer Lindsay asked Faustin to put down the banner or otherwise stop displaying it from the Perry Street Overpass sidewalk. ( Id., Statement of Undisputed Material Facts ¶ 15; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 15.) Faustin complied with Officer Lindsay's request, and then asked him to cite the specific law which she was allegedly violating. ( Id., Statement of Undisputed Material Facts ¶ 16; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 16.) A short time later, Denver Police Sergeant Larry Subia arrived. ( Id., Statement of Undisputed Material Facts ¶ 17; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 17.) Both officers then reviewed a traffic manual but could find no law proscribing Faustin's display of the banner on the Perry Street Overpass. ( Id., Statement of Undisputed Material Facts ¶ 18; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 18.) After a third officer arrived and a total of one hour passed, the officers informed Faustin that they were

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unaware of any law which she may have violated by displaying her banner. ( Id., Statement of Undisputed Material Facts ¶ 18; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 18.)

On February 6, 1998, Faustin and others had been displaying their banner at the Perry Street Overpass for nearly an hour when Denver Police Sergeant Reyes approached Faustin. ( Id., Statement of Undisputed Material Facts ¶ 19; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 19.) Sergeant Reyes informed Faustin that she could not display the banner at the overpass, but, when Faustin advised him that she was finished displaying her banner for the day, Sergeant Reyes did not pursue the matter further. ( Id., Statement of Undisputed Material Facts ¶ 20; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 20.)

On March 6, 1998, plaintiff and others again went to the Perry Street Overpass to display the banner. ( Id., Statement of Undisputed Material Facts ¶ 21; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 21.) Soon after they arrived, Denver Police Officer John Blea approached them. ( Id., Statement of Undisputed Material Facts ¶ 22; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 22.) Officer Blea told Faustin that she could not display her banner on the overpass because to do so was a violation of the Posting Ordinance. ( Id., Statement of Undisputed Material Facts ¶ 23; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 23.) From his police cruiser, Officer Blea called Lieutenant Fink, who advised Faustin that he display of the banner could be in violation of Colo.Rev.Stat. §§ 43-1-401 to 43-1-408 (1999) [hereinafter "Outdoor Advertising Act"]. 2 ( Id., Statement of Undisputed Material Facts 25; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 25.)

On March 27, 1998, Faustin's counsel sent a letter to then-Denver Police Chief David L. Michaud, requesting assurances from Chief Michaud that Faustin and others would not be arrested for displaying the banner on the sidewalk overpass. ( Id., Statement of Undisputed Material Facts ¶ 26; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 26.) Faustin's counsel received no response from Chief Michaud or any other city official regarding the March 27, 1998, letter.

On August 7, 1998, after a four-month hiatus, Faustin returned to the Perry Street overpass and displayed the banner. ( Id., Statement of Undisputed Material Facts ¶ 28; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 28.) Denver Police Sergeant W.P. Honer arrived shortly thereafter and cited Faustin for violating the Posting Ordinance ("posting charge"). ( Id., Statement of Undisputed Material Facts ¶ 29; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material Facts ¶ 29.) On October 9, 1998, the posting charge against Faustin was formally dismissed in open court. ( Id., Statement of Undisputed Material Facts ¶ 30; admitted at Defs.' Resp., Resp. to Statement of Undisputed Material...

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