Brown v. Palmer

• Decision Date: 03 October 1990
• Docket Number: No. 88-2450,88-2450
• Citation: 915 F.2d 1435
• Parties: Joan BROWN; Donna R. Johnson; Susan Matarrese; Geoffrey Parker; Mary Lynn Sheetz; Peter Sprunger-Froese, Plaintiffs-Appellees, v. Colonel James O. PALMER, Base Commander of Peterson Air Force Base, Colorado, and Colonel Eugene T.M. Cullinane, Commander, Headquarters, 3rd Space Support Wing (Afspacecom) Peterson Air Force Base, Colorado, as officers and agents of the United States Air Force, an agency of the United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1435

915 F.2d 1435

Joan BROWN; Donna R. Johnson; Susan Matarrese; Geoffrey Parker; Mary Lynn Sheetz; Peter Sprunger-Froese Plaintiffs-Appellees, v. Colonel James O. PALMER, Base Commander of Peterson Air Force Base, Colorado, and Colonel Eugene T.M. Cullinane Commander, Headquarters, 3rd Space Support Wing (Afspacecom) Peterson Air Force Base, Colorado, as officers and agents of the United States Air Force, an agency of the United States of America, Defendants-Appellants.

No. 88-2450.

United States Court of Appeals Tenth Circuit.

Oct. 3, 1990.

Order on Rehearing and Rehearing

Granted Nov. 6, 1990.

Patricia M. Bryan (John R. Bolton, Asst. Atty. Gen., Washington, D.C., Michael J. Norton, U.S. Atty., Denver, Colo., and Anthony J. Steinmeyer and Robert K. Rasmussen, Attys., Appellate Staff, Civil Div., U.S. Dept. of Justice, Washington, D.C., on the briefs), for defendants-appellants.

Newman E. McAllister, (Donald E. King with him on the brief), Colorado Springs, Colo., for plaintiffs-appellees.

Hilary Holland, Westminster, Colo., and David Miller, Denver, Colo., filed a brief for amicus curiae American Civil Liberties Union of Colo.

Before MOORE, BRORBY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This is an appeal from the district court's July 20, 1988 judgment declaring that certain bar letters were issued to plaintiffs in violation of their First Amendment rights. 689 F.Supp. 1045. The bar letters were issued after plaintiffs refused to cease distributing leaflets at Peterson Air Force Base ("Peterson AFB") in Colorado Springs, Colorado, during open houses held in 1985 and 1986 to celebrate Armed Forces Day. Because Peterson AFB was not a public forum at the time that plaintiffs were distributing their leaflets, and because the restrictions on plaintiffs' speech were reasonable and viewpoint neutral, we reverse.

FACTS

On May 13, 1985, three of the plaintiffs, Joan Brown, Susan Matarrese, and Peter Sprunger-Froese, distributed leaflets containing a pacifist message during an open house held at Peterson AFB to celebrate Armed Forces Day. After refusing a request by military authorities to either stop distributing the leaflets or leave the base, they were escorted off the base and were issued bar letters pursuant to 18 U.S.C. Sec. 1382, ¹ prohibiting them from entering the base without the prior written permission of the base commander.

During the May 17, 1986 Armed Forces Day celebration at Peterson AFB, all six plaintiffs began distributing leaflets portraying the horrors of war. Brown, Matarrese, and Sprunger-Froese were arrested for violating the terms of the bar letters that had been issued against them. After refusing a request to either cease leafletting or leave the base, the remaining three plaintiffs, Donna R. Johnson, Geoffrey Parker, and Mary Lynn Sheetz, were escorted off the base and were issued bar letters. Johnson, Parker, and Sheetz then attempted to reenter the base without prior written permission and were arrested. The charges against all of the plaintiffs were subsequently dropped.

On July 27, 1987, plaintiffs initiated this action against Colonel James O. Palmer, the Base Commander of Peterson AFB, and Colonel Eugene T.M. Cullinane, the commanding officer of the headquarters of the Air Force's 3rd Space Support Wing, in their official capacities. Plaintiffs sought a preliminary injunction to permit them to attend an open house celebration at Peterson AFB planned for September 12, 1987. Plaintiffs also sought a declaration that the bar letters were issued in violation of their First Amendment rights. On September 4, 1987, the district court issued a preliminary injunction in accordance with plaintiffs' request. This court denied a request by the United States for emergency relief from the injunction.

On July 20, 1988, the district court granted plaintiffs' request for declaratory relief. The court concluded that Peterson AFB had become a "public forum" during the 1985 and 1986 Armed Forces Day celebrations. The court based its conclusion on the parties' stipulation that the activities occurring at the 1985 and 1986 Armed Forces Day open houses were similar to the following activities that took place at the 1987 open house: (1) Air Force recruiting; (2) discussions by defense contractors concerning their weapons systems currently in use by the Air Force; (3) distribution of circulars advertising the Cheyenne, Wyoming Year Round Walk for 1987 and advertising the Historic Macgregor Ranch Walk in Estes Park, Colorado; (4) distribution of a newspaper entitled the Space Observer; and (5) solicitation of the public to join the International Plastic Molders Society. In addition, one of the plaintiffs attending the 1987 Guest Day received the following: (1) an invitation from the Peterson Air Force Base Chapel to attend a luncheon and religious lecture; (2) a book entitled "About Being Catholic"; (3) a newspaper entitled "The Catholic Herald"; and (4) a copy of The Good News Testament Bible that contained the inscription "Presented by the Air Force." In light of those facts, the court concluded that during the 1985 and 1986 Armed Forces Day celebrations, Peterson AFB was a public forum.

Defendants contend that the bar letters were issued because of the ideological content of plaintiffs' speech. The Air Force does not permit anyone to enter the base to convey political or ideological messages. See R. Vol. I, Doc. 9, Tab 1, at 2 (Aff. of Colonel James O. Palmer); R. Vol. II at 1-15 (testimony of Colonel James O. Palmer). As a result, the district court concluded that the Air Force violated plaintiffs' First Amendment rights because it engaged in content-based regulation, which is not permitted in a public forum absent a compelling state interest.

On September 16, 1988, the United States Attorney for the District of Colorado filed a notice of appeal. The caption of the notice of appeal read as follows:

JOAN BROWN, et al.,

Plaintiff-appellees,

v.

COLONEL JAMES O. PALMER, et al.,

Defendant-appellants.

The notice of appeal did not indicate whether Colonel Palmer was filing the appeal in his official capacity as Commander of Peterson AFB. The notice of appeal also did not specifically list Colonel Eugene T.M. Cullinane, the other defendant named in plaintiffs' complaint, as a party to the appeal. On October 5, 1988, this court ordered the parties to submit memorandum briefs addressing whether we had jurisdiction over the appeal in light of Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). In Torres, the Supreme Court held that the failure to file a notice of appeal in accordance with Fed.R.App.P. 3(c) ² presents a jurisdictional bar to the appeal.

DISCUSSION

I. The Notice of Appeal Was Sufficiently Specific

In this case, the United States satisfied the jurisdictional requirement of Rule 3(c) by specifically designating Colonel Palmer in its notice of appeal because plaintiffs and this court had the requisite "fair notice of the specific individual or entity seeking to appeal." Torres, 487 U.S. at 318, 108 S.Ct. at 2409. Plaintiffs clearly understood that an appeal by Colonel Palmer was in effect an appeal by the United States in light of the fact that they had sued Colonel Palmer and Colonel Cullinane only in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985) ("As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."). Moreover, the United States Attorney for the District of Colorado filed the notice of appeal as counsel for the defendants. ³

Plaintiffs argue that because the notice of appeal did not state that Colonel Palmer was appealing in his official capacity, the time period allowed for private parties to file their appeals must apply, ⁴ and therefore, the appeal is untimely. We disagree. Here, the United States clearly desired to appeal, and its failure to designate that Colonel Palmer was appealing in his official capacity did not deprive the parties or this court of fair notice that the United States was the true appellant. See King v. Otasco, Inc., 861 F.2d 438, 443 (5th Cir.1988) (failure to designate the capacities in which a party appeals does not render notice of appeal ineffective). In light of the fact that the notice of appeal was filed within the sixty-day period permitted under Fed.R.App.P. 4(a)(1), we have jurisdiction to decide this appeal.

II. Peterson Air Force Base Was Not A Public Forum

The degree to which the government can regulate communicative activity on its property depends upon the type of property involved. The Supreme Court has grouped government property into three categories for First Amendment purposes: (1) traditional public fora; (2) public fora created by government designation; and (3) nonpublic fora. See United States v. Kokinda, --- U.S. ----, 110 S.Ct. 3115, 3119-20, 111 L.Ed.2d 571 (1990); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-56, 74 L.Ed.2d 794 (1983).

Traditional public fora, such as public streets or parks, are places that "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). Designated public fora are places not traditionally available for public assembly and debate but which the government has intentionally opened for expressive activity. See, e.g., Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (state university meeting facilities expressly made available for use by students); City of Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50...