170 F.3d 1281 (10th Cir. 1999), 98-1003, Hawkins v. City and County of Denver

Docket Nº:98-1003.
Citation:170 F.3d 1281
Party Name:Jack HAWKINS, individually and as President of the Denver Area Labor Federation and Pete Vriesenga, individually and as President of Denver Musicians Association, Plaintiffs--Appellants, v. CITY AND COUNTY OF DENVER; Gary Lane, Director of the Denver Theaters and Arenas, Brook Nichols, Assistant Building Manager of the Denver Theaters and Arenas; a
Case Date:March 10, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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170 F.3d 1281 (10th Cir. 1999)

Jack HAWKINS, individually and as President of the Denver

Area Labor Federation and Pete Vriesenga,

individually and as President of Denver

Musicians Association,



CITY AND COUNTY OF DENVER; Gary Lane, Director of the

Denver Theaters and Arenas, Brook Nichols, Assistant

Building Manager of the Denver Theaters and Arenas; and

David Michaud, as Chief of the Denver Police Department,


No. 98-1003.

United States Court of Appeals, Tenth Circuit

March 10, 1999

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[Copyrighted Material Omitted]

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Neil D. O'Toole (John A. Sbarbaro, with him on the brief), Law Office of Neil O'Toole, P.C., Denver, Colorado, appearing for Plaintiffs-Appellants.

Stanley M. Sharoff, Assistant City Attorney (Daniel E. Muse, City Attorney, with him on the brief), Denver, Colorado, appearing for Defendants-Appellees.

Before TACHA, BARRETT, and HENRY, Circuit Judges.

TACHA, Circuit Judge.

Plaintiff-Appellants represent a group of union musicians who wish to picket and distribute leaflets expressing their grievance against the Colorado Ballet in the "Galleria" area of the Denver Performing Arts Complex ("DPAC"). The City and County of Denver ("Denver"), which owns and operates the DPAC, halted plaintiffs' demonstrations in the Galleria. In response, plaintiffs filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the District of Colorado, claiming that Denver violated their First Amendment rights by denying them access to the Galleria.

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They sought a preliminary and permanent injunction against defendants allowing them to proceed unabated with their picketing and leafletting. The district court denied plaintiffs' request for injunctive relief and dismissed the case. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Description of the Galleria

The events in this case involve an area of the DPAC known as the Galleria. The Galleria is an open air, glass-covered pedestrian walkway approximately 600 feet long, with a width ranging between 32 and 40 feet. As illustrated by the maps following this opinion, the Galleria, which was formerly a public street, is bounded on one side by two large theaters, the Temple Hoyne Buell Theatre and the Auditorium Theatre, and on the other side by the DPAC parking garage and the Garner Galleria Theatre. Fourteenth Street, a public right of way, lies at one end of the Galleria. Several additional performing arts complexes and a sculpture park, which separates the DPAC from Speer Boulevard, lie at the other.

The Galleria serves as the exclusive means of ingress to and egress from DPAC events taking place in the adjacent performing arts complexes, which have a combined seating capacity of approximately 9,300. 1 Many DPAC patrons enter the Galleria from the DPAC garage, but the garage has a limited parking capacity of around 1,600 spaces. Therefore, on busy occasions, as many as 40 to 50 percent of the total patrons enter the Galleria from the 14th Street entrance. The Galleria also acts as a place for theater patrons to congregate before performances and during intermissions, in effect serving as an extended lobby for the various performing arts venues. During these periods, and when patrons are arriving or departing from DPAC events, the Galleria can become extremely congested, particularly when multiple events are scheduled. Ticket sales also occur at box offices in the Galleria, with lines often stretching across the walkway. Finally, the Galleria serves as the main evacuation route for the performing arts complexes in the event of an emergency, such as a fire.

Although the DPAC's primary function is to showcase artistic performances, several commercial establishments lease space within the confines of the facility. These consist of two cafes and a business called Scene-to-Screen, which, among other things, sells retail merchandise and souvenirs relating to productions appearing at the DPAC. The record shows that at least one of these establishments opens only in conjunction with performances because it is not profitable in the absence of DPAC patron traffic. Denver allows leaseholders to promote their businesses within the Galleria through the use of small signs. Denver also makes brochures listing events at other venues it owns and a publication that promotes events at the DPAC available in the Galleria. Occasionally, Denver leases promotional space within the Galleria. For example, a car dealership once paid to place a truck in the Galleria for a period of time during and after a performance festival.

II. Background

Having described the stage for this dispute, we will now recount the facts giving rise to this appeal. On September 25, 1997, the Artistic Director and Chief Executive Officer of the Colorado Ballet informed plaintiff Pete Vriesenga, President of the Denver Musicians Association, that it would replace the live orchestra with an audio tape recording during its performance of "Romeo and Juliet." The Colorado Ballet was, at that time, a tenant of the DPAC's Temple Hoyne Buell Theatre. On October 10, 1997, plaintiffs, acting on behalf of the terminated union musicians, informed Denver officials that they intended to picket and leaflet at the October 11 opening of "Romeo and Juliet." That same day, plaintiff Vriesenga received a memo from Denver stating that it prohibited picketing and leafletting within the DPAC 2

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but noting that it permitted such activity on the public right of ways surrounding the facility. On October 11, 1997, plaintiffs, as well as members of the Denver Area Musicians Association, assembled in the Galleria as planned and began picketing and leafletting during the opening of the ballet. The leaflet plaintiffs distributed called attention to the union musicians' dispute with the Colorado Ballet and attempted to gain sympathy for their cause by suggesting that the Ballet had overcharged patrons for their tickets. 3 During the demonstration, a Denver official informed plaintiffs that they could not picket and leaflet within the Galleria and demanded they leave. The official also told plaintiffs that if they refused to leave, he would summon the police. By the end of the night, police had arrived and warned plaintiffs that if they continued to picket and leaflet within the Galleria, they would be arrested.

On October 12, 1997, plaintiffs returned to the Galleria, but police removed them shortly thereafter. Plaintiffs subsequently limited their picketing and handbilling to the entrances adjoining the Galleria and the DPAC garage. The next day, Denver's attorney sent plaintiffs a letter reiterating Denver's policy not to allow picketing or leafletting within the Galleria. At each of the remaining performances of "Romeo and Juliet," plaintiffs protested, but not within the Galleria. Eventually, police removed plaintiffs from all DPAC facilities and instructed them to confine their activities to the public sidewalks and 14th Street entrance. 4

On November 4, 1997, plaintiffs notified Denver officials that they intended to continue their picketing and leafletting during the Colorado Ballet's performance of "The Nutcracker," scheduled to run between November 29 and December 28, 1997. Having received no response from Denver, plaintiffs filed a § 1983 complaint on November 24, 1997, requesting a preliminary and permanent injunction "directing the City and County of Denver and the defendants from interfering with or restricting the plaintiffs' right to picket or handbill at the DPAC 'Galleria' area and all other public places in and surrounding the DPAC." Compl. at 11. Pursuant to Federal Rule of Civil Procedure 65(a)(2), the district court conducted a consolidated hearing with a trial on the merits on December 3, 1997. At the conclusion of the consolidated hearing, the district court, in an oral ruling, determined that the Galleria was not a public forum and that Denver's restrictions were reasonable. The court denied plaintiffs' request for an injunction and dismissed plaintiffs' § 1983 claim on the merits. This appeal followed.

III. Discussion

In a First Amendment case, we perform an independent examination of the record to ensure protection of free speech rights. See Revo v. Disciplinary Bd. of the Supreme Court for the State of N.M., 106 F.3d 929, 932 (10th Cir.1997), cert. denied, 521 U.S. 1121, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997); Brown v. Palmer, 915 F.2d 1435, 1441 (10th Cir.1990), aff'd on reh'g en banc, 944 F.2d 732, 733 n. 1 (10th Cir.1991). We also review the district court's findings of constitutional fact and conclusions of law de novo. See Revo, 106 F.3d at 932.


Plaintiffs argue that Denver's refusal to allow them to picket and leaflet within the Galleria constitutes a violation of their First Amendment rights. We note as an initial matter that the district court did not characterize the nature of plaintiffs' First Amendment

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claim as a facial or "as applied" challenge to Denver's DPAC speech policy. However, an examination of plaintiffs' complaint demonstrates that plaintiffs' claim is more appropriately characterized as an "as applied" challenge. Plaintiffs do not seek declaratory relief or assert that Denver's DPAC speech policy is unconstitutional when applied to others or because of overbreadth. Rather, it is clear from the face of plaintiffs' complaint that they "seek to vindicate their own rights," not those of all persons who may wish to use the Galleria as a protest site. Jacobs v. The Fla. Bar, 50 F.3d 901, 906 (11th Cir.1995); see also Falanga v. State Bar of Ga., 150 F.3d 1333, 1335 n. 4 (11th Cir.1998); Jordahl v. Democratic Party of Va., 122 F.3d 192, 198-99 (4th Cir.1997).

The First Amendment, as applied to state and local governments through the...

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