Tanner v. Lloyd Corporation

• Decision Date: 15 January 1970
• Docket Number: Civ. No. 69-127.
• Citation: 308 F. Supp. 128
• Parties: Donald M. TANNER, Betsy Wheeler and Susan Roberts, Plaintiffs, v. LLOYD CORPORATION, Ltd., Defendant.
• Court: U.S. District Court — District of Oregon

308 F. Supp. 128

Donald M. TANNER, Betsy Wheeler and Susan Roberts, Plaintiffs, v. LLOYD CORPORATION, Ltd., Defendant.

Civ. No. 69-127.

United States District Court D. Oregon.

January 15, 1970.

Carl R. Neil, Portland, Or., for plaintiffs.

George Black, Jr., Milton C. Lankton, Robert J. Miller, Black, Kendall, Tremaine, Boothe & Higgins, Portland, Or., for defendant.

OPINION

SOLOMON, Chief Judge:

Donald Tanner, Betsy Wheeler and Susan Roberts brought this action under 42 U.S.C. § 1983¹ and 28 U.S.C. § 2201² for a judgment declaring that they have the right to distribute handbills in the Mall of Lloyd Center, a shopping center owned by Lloyd Corporation, Ltd. (Corporation). Plaintiffs also seek to enjoin the Corporation from interfering with that right. Plaintiffs allege jurisdiction under 28 U.S.C. § 1343.³

With a few minor exceptions, the parties agree on the facts, but not on the conclusions to be drawn from those facts.

Lloyd Center is a large, modern retail shopping center in Portland, Oregon. The Center covers about 50 acres, including about 20 acres of open and covered parking facilities for more than 1,000 automobiles. It has a perimeter of almost one and one-half miles. The Center is bounded by four public streets — Broadway Street, Lloyd Boulevard, and Ninth and Sixteenth Avenues. It is crossed by Weidler, Halsey, Multnomah, and Holladay Streets running east to west and by Fifteenth Avenue running north to south. At least six other streets run partly into or around the Center.

The streets in and surrounding the Center are publicly owned and have adjacent public sidewalks. The Corporation owns all other land within the Center, and has more than 60 commercial tenants, including small shops and major department stores.

At a few places within the Center, the Corporation has embedded small signs in the sidewalk,⁴ which state:

"NOTICE — Areas In Lloyd Center Used By The Public Are Not Public Ways But Are For The Use Of Lloyd Center Tenants And The Public Transacting Business With Them. Permission To Use Said Areas May Be Revoked At Any Time. Lloyd Corporation, Ltd."

The principal portion of the Center is occupied by a unified shopping area, called the "Mall," which covers about 25 acres and has a perimeter of about .8 miles. It is not crossed by public streets. The Mall is a multi-level complex of buildings, parking facilities, submalls, sidewalks, stairways, elevators, escalators, bridges, and gardens, and contains a skating rink, statues, murals, benches, directories, information booths, and other facilities designed to attract visitors and make them comfortable.

Pedestrians have access to some of the Mall stores through entrances on both public and Mall sidewalks, while they have access to other stores only from the interior of the Mall. Automobiles enter the Mall from the surrounding public streets.

The Mall is open to the general public. In addition, the Corporation invites groups to conduct activities there, if those activities will promote "customer motivation." It has invited schools to hold football rallies, service organizations to hold Veterans Day ceremonies, and presidential candidates to give speeches during election years.

The Corporation also permits groups which it believes to be worthy to use the Mall even though they do not add to "customer motivation." It permits the American Legion to sell "buddy" poppies at least once each year, and every year before Christmas, it permits bellringers for the Salvation Army and Volunteers of America to set up kettles and solicit contributions.

The Corporation prohibits other groups from using the Center for their own purposes. It denied the March of Dimes and Hadassah, a national Zionist women's service organization, the opportunity to solicit contributions and denied Governor Tom McCall the opportunity to make a political speech. As part of this policy, the Corporation prohibits the distribution of handbills within the Mall.

The Corporation enforces its rules through twelve commissioned special police officers of the City of Portland, whom it employs as Security Guards. The Guards have full police authority, carry guns, and wear uniforms similar to those worn by the Portland Police.

On November 14, 1968, Plaintiffs entered the Mall and distributed handbill invitations to a meeting of the "Resistance Community" to protest the draft and the Vietnam War. The distribution was quiet, orderly, and did not interfere with the Mall selling activities, and there was no littering. Nevertheless, the Security Guards told Plaintiffs that they would be arrested unless they stopped distributing the handbills within the Mall. The Guards suggested that Plaintiffs distribute their literature on the public streets and sidewalks. Plaintiffs left the Mall to avoid arrest⁵ and subsequently brought this action.

The Corporation raises a number of preliminary issues of fact and law.

1. The Corporation asserts that the Mall is not open to the general public; that it is similar to an office building; and that the signs in the sidewalk inform visitors that they are permitted to enter the Mall only for the purpose of transacting business.

In 1954, when the Corporation acquired land for the Center, the City of Portland vacated about eight acres of public streets for use by the Corporation. The ordinance by which the City vacated the streets recited that the City intended that the Corporation should use the land for the construction of "a general retail business district." In spite of this ordinance, the Corporation now asserts that the Mall is like an office building rather than like a public business district. Although the Mall's multi-level design is not yet common among modern shopping centers, the Mall is a prototype for future city planning. Its parking facilities and sidewalks serve the same purpose as streets and sidewalks of a public business district. I find that the Mall is the functional equivalent of a public business district. Cf. Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968).

The Corporation invites everyone to the Center and permits anyone to enter the Mall. It hopes that visitors who go there without the intention of buying will change their minds while visiting at the Center or while windowshopping or browsing. The few "private property" signs embedded in the sidewalk are small. Few people are likely to notice them. The Center's manager did not even know where they were. Although the parking facilities are closed during the late night and early morning hours, the walkways in the Mall are open to pedestrian traffic 24 hours a day. I find that the Mall is open to the general public.

2. The Corporation asserts that the distribution of handbills interferes with Mall selling activities. It is true that under some circumstances, conduct accompanying the distribution of handbills could interfere with Mall business. Here, however, Plaintiffs' sole activity was the distribution of handbills to those who were willing to take them. There was no littering or disturbance. I find that Plaintiffs were engaged in the pure expression of political beliefs. Cf. Wolin v. Port of New York Authority, supra. Plaintiffs' activities affected Mall business only to the extent that the expression of beliefs interferes with customers' motivation to buy.

3. The Corporation contends that Plaintiffs can distribute handbills just as effectively from the public streets and sidewalks as from the interior of the Mall. It would be difficult and perhaps dangerous for Plaintiffs to distribute their handbills from the public sidewalks to customers entering the Mall. Many customers do not use the public sidewalks and streets except when entering the Mall by automobile. In addition, it would be much more difficult to reach pedestrians on the public sidewalks than to reach them in parts of the Mall interior through which most customers pass. I find that Plaintiffs cannot distribute handbills as effectively from the public streets and sidewalks as they can from the Mall interior.

4. The Corporation's contention that its Guards were merely exercising their First Amendment rights when they told Plaintiffs to leave or be arrested is frivolous.

5. The Corporation contends that it relied solely on the Oregon trespass statute when it ordered Plaintiffs to leave. It argues that this Court should abstain from deciding this case until the Oregon courts have decided whether the statute applies to Plaintiffs.⁶ In the alternative, the Corporation argues that a three-judge court must hear this case because it is an action to declare the Oregon trespass statute unconstitutional. The Corporation does not, however, concede that Plaintiffs have the right to distribute handbills within the Mall if the Oregon statute is inapplicable. It claims the private property right under the Fifth Amendment to exclude Plaintiffs regardless of the statute. The issue here, therefore, is not whether the Oregon statute is constitutional. It is whether the Fifth Amendment gives the Corporation the right to prohibit Plaintiffs' activities.

6. The Corporation asserts that Plaintiffs failed to state a cause of action under 42 U.S.C. § 1983 because the Corporation did not act under color of state law. The Corporation's Security Guards had full police authority from the City of Portland and exercised that authority to cause Plain...