423 F.3d 1192 (10th Cir. 2005), 04-1025, Faustin v. City and County of Denver, Colorado

Docket Nº:04-1025.
Citation:423 F.3d 1192
Party Name:Wendy FAUSTIN, Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER, COLORADO; Tom Sanchez, in his official capacity as Chief of the Denver Police Department; Lt. Donald L. Fink, in his official capacity as an officer of the Denver Police Department; Sgt. W.P. Honer, in his official capacity as an officer of the Denver Police Department, Defendants-App
Case Date:September 15, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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423 F.3d 1192 (10th Cir. 2005)

Wendy FAUSTIN, Plaintiff-Appellee,


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

No. 04-1025.

United States Court of Appeals, Tenth Circuit.

Sept. 15, 2005

Appeal from the United States District Court for the District of Colorado (D.C. No. 98-N-2554 (PAC))

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[Copyrighted Material Omitted]

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Stan M. Sharoff, Assistant City Attorney, (Cole Finegan, City Attorney, with him on the briefs), Denver, Colorado, for the Defendants-Appellants.

Michael J. DePrimo, of the AFA Center for Law & Policy, (Stephen M. Crampton and Brian Fahling, of AFA Center for Law & Policy, with him on the brief), Tupelo, Mississippi, for the Plaintiff-Appellee.

Before EBEL, O'BRIEN, Circuit Judges, and STEWART, District Judge.[*]

EBEL, Circuit Judge.

Wendy Faustin is an abortion protester. On several occasions, she has held a banner reading "ABORTION KILLS CHILDREN" on a highway overpass in Denver for motorists traveling below to see.

After Denver police repeatedly asked Faustin to stop displaying the banner, Faustin brought this action under 42 U.S.C. § 1983 alleging violations of her free speech rights under the First Amendment. In defense, Denver points to what it asserts is its unwritten, but constitutional, city policy banning signs and banners on overpasses. According to Faustin, the policy is broader and unconstitutionally bans all expression on all overpasses. Both sides originally filed motions for summary judgment below and argue summary judgment is the proper vehicle for deciding this case.

This is the second appeal in this case. Before us now are Faustin's facial challenges to the city's policy as overly broad and vague. The district court granted Faustin summary judgment on these claims. At this juncture, there remains some factual dispute as to the exact scope of Denver's unwritten policy. Nevertheless, this factual dispute is not material and so will not preclude summary judgment. Even giving the policy the broadest interpretation the record will allow, Faustin has not shown an unconstitutional chilling effect on the protected speech of third parties not before the court.

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Therefore, we conclude that Denver, rather than Faustin, is entitled to judgment as a matter of law. We REVERSE and REMAND with instructions that summary judgment be entered for Defendants.

I. Background

We need not set out in detail the facts or procedural history of this case, as they were stated in our prior panel decision. See Faustin v. City and County of Denver, 268 F.3d 942, 945-47 (10th Cir. 2001) ("Faustin I"). We present only essential facts as necessary to address the issues in this appeal.

Wendy Faustin regularly engages in abortion protest activities in Denver. This litigation ensued after Denver police repeatedly prevented Faustin from displaying a large banner with the message "ABORTION KILLS CHILDREN" on a highway overpass in Denver. Faustin and a friend stood on the sidewalk between the roadway and a chain-link fence, on the overpass located at the juncture of Sixth Avenue and Perry Street, and held the banner up by hand so that motorists driving below could view it.

The parties stipulate to four specific confrontations between Faustin and Denver police. In each instance, Denver police approached Faustin and asked her to leave the overpass and/or to remove her banner. The police officers were unable to cite a specific law proscribing Faustin's display. During the third encounter, however, a Denver police officer did inform Faustin she could not display the banner because to do so was a violation of a Denver posting ordinance. Lieutenant Donald Fink also allegedly said, over the radio to the officer at the scene, that Faustin's display could be in violation of a state unauthorized traffic display statute. Ultimately, in the fourth confrontation, Faustin was cited by Sergeant W.P. Honer for violating the posting ordinance; however, this charge was dismissed in open court when the Denver city prosecutor realized that, because Faustin was merely holding the banner and not affixing it to anything, the posting ordinance was inapplicable to Faustin's conduct. Thus, Faustin was never criminally tried.

In November 1998, Faustin filed this civil rights action in federal court pursuant to 42 U.S.C. § 1983. Both sides filed motions for summary judgment, and the district court granted summary judgment for Faustin. On the first appeal in Faustin I, we held that Faustin had no standing to seek prospective relief from the posting ordinance or to challenge the unauthorized traffic display statute on its face. 268 F.3d at 948-49. We also determined that the district court had not addressed Faustin's separate challenge to Denver's unwritten policy relating to expression on overpasses. Id. at 950. After determining that Faustin has standing to challenge this policy, we remanded for further proceedings to determine whether the policy violates the First Amendment. Id.

Upon remand, the district court considered supplemental briefing from the parties and concluded that Denver's unwritten policy "to prohibit all speech or expressive activities on all highway overpasses located in the City and County of Denver" is unconstitutionally overbroad and vague. The court entered a judgment granting Faustin's original motion for summary judgment and denying Denver's original cross-motion. Denver appeals, urging us to reverse the district court's judgment and order entry of summary judgment in Denver's favor.

II. Standard of Review

We review the grant of summary judgment de novo. Axson-Flynn v. Johnson, 356 F.3d 1277, 1283 (10th Cir. 2004). We also review the district court's findings

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of constitutional fact in a First Amendment claim and conclusions of law de novo. Hawkins v. City and County of Denver, 170 F.3d 1281, 1285 (10th Cir. 1999). Because this decision implicates First Amendment freedoms, we perform an independent examination of the whole record in order to ensure that the judgment protects the rights of free expression. Id.

III. Discussion

A. Faustin's claims

There are two types of First Amendment challenges that can be brought against a city policy, facial and as applied.1 A facial challenge considers the restriction as a whole, while an as-applied challenge tests the application of that restriction to the facts of a plaintiff's concrete case. See Hawkins, 170 F.3d at 1286, 1290. Facial challenges seek to vindicate not only individual plaintiffs' rights but also those of all others who wish to engage in the speech being prohibited. See id. at 1286.

The district court, on remand, said that "plaintiff challenges this policy on its face" and considered only facial overbreadth and vagueness claims. Although it does not appear that Faustin asserted a facial challenge to the policy in her original complaint, Faustin did develop these facial challenges over the course of the litigation in the district court, both before and after our remand in Faustin I. Defendants never challenged the characterization of Faustin's developing claims as a facial challenge to Denver's policy. Therefore, we hold that Faustin impliedly amended her complaint in the district court, and we will address the facial vagueness and overbreadth claims before us in this appeal. See Fed.R.Civ.P. 15(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings"); accord Green Country Food Mkt., Inc. v. Bottling Group, Inc., 371 F.3d 1275, 1280 (10th Cir. 2004).2

B. Denver's policy

The parties dispute the precise parameters of Denver's unwritten policy and refused to stipulate to any single version of the policy at oral argument. The evidence before us on summary judgment presents a somewhat contradictory picture. In some instances, Defendants describe Denver's policy broadly as prohibiting all expression on all overpasses.3 We also used regrettably imprecise language in Faustin I when we said that "closer analysis of the complaint, the motions for summary judgment,

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and the briefing before us indicates that Faustin also challenges defendants' policy of prohibiting all expression on overpasses. Defendants admit this policy exists." 286 F.3d at 950. Faustin emphasizes these "all expression" references and argues the policy therefore prohibits not just her protest activities but every kind of expression on overpasses, including bumper stickers on cars and conversations among pedestrians.4

However, Faustin has offered no evidence to prove Denver's policy has ever reached beyond expression visible to the traffic below. To the contrary, the evidence that Faustin has submitted suggests that Denver has only restricted signage on overpasses--evidence that an animal rights protestor was previously arrested after displaying a large protest sign on a highway overpass in Denver.5Indeed, except for intermittent references to "all expression," Defendants have consistently articulated a more narrow version of the policy that prohibits only the display of signs and banners on overpasses.6 Indeed, Lt. Donald Fink himself demonstrated in an affidavit before the district court that "all expression on overpasses" is not nearly as inclusive as Faustin hypothesizes, where he stated:

It has been the uniform and consistent policy...

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