American Civ. Lib. Union v. City & Cnty. of Denver
| Decision Date | 06 August 2008 |
| Docket Number | Civil Action No. 08-cv-00910-MSK-KMT. |
| Citation | 569 F.Supp.2d 1142 |
| Parties | AMERICAN CIVIL LIBERTIES UNION OF COLORADO, American Friends Service Committee, American Indian Movement of Colorado, Americans for Safe Access, Codepink, Escuela Tlatelolco Centro de Estudios, Larry Hales, Glen Morris, Recreate 68, Rocky Mountain Peace & Justice Center, Damian Sedney, Tent State University, Troops Out Now Coalition, and United for Peace & Justice, Plaintiffs, v. CITY AND COUNTY OF DENVER, Michael Battista, United States Secret Service, and Mark Sullivan, Defendants. |
| Court | U.S. District Court — District of Colorado |
Christopher P. Beall, Steven David Zansberg, Levine Sullivan Koch & Schulz, L.L.P., Mark Silverstein, Taylor Scott Pendergrass, American Civil Liberties Union, Diego G. Hunt, Holland & Hart, LLP, Elizabeth L. Morton, Dorsey & Whitney, LLP, Denver, CO, for Plaintiffs.
Alex C. Myers, James Michael Lyons, Michael D. Plachy, Rothgerber Johnson & Lyons, LLP, David Richard Fine, Denver City Attorney's Office-Litigation, Xavier S.L. Duran, Denver City Attorney's Office-Municipal Operations, Amanda Adams Rocque, Hayley Elizabeth Reynolds, Kevin Thomas Traskos, Lisa A. Christian, U.S. Attorney's Office, Denver, CO, Jean Eberhart Dubofsky, Jean E. Dubofsky, P.C., Boulder, CO, for Defendants.
In August 2008, the Democratic National Convention will be held in Denver, Colorado. This matter concerns claims that the security restrictions imposed during the Convention will violate the Plaintiffs' rights to freedom of speech and assembly under the First Amendment to the Constitution of the United States of America.
Convention activities will be hosted at two venues. Activities on the first three days of the Convention will be held at the Pepsi Center; the activities on the final night of the Convention will be held at Invesco Field at Mile High Stadium. Because issues concerning security restrictions at Invesco Field have not been framed or tried, this opinion addresses only restrictions associated with events at the Pepsi Center.1
The Plaintiffs have specifically identified four facets of the security restrictions that they contend infringe upon their First Amendment rights:
• The location and configuration of the Public Demonstration Zone on the Pepsi Center grounds, being outside "sight and sound" of delegates and the Pepsi Center building itself, renders it an inadequate alternative to offset the closure of some public streets to First Amendment uses;
• The terminus of the approved route for parades scheduled during the Convention, on Monday, August 25, through Wednesday, August 27, is not within "sight and sound" of the Pepsi Center;
• The route for parades scheduled before the Convention begins, on Sunday, August 24, does not travel over Chopper Circle; and
• The City of Denver denied a permit to Plaintiff Recreate 68 for an afternoon parade on Monday, August 25 through downtown Denver, citing traffic and staffing concerns.
The Court has considered the factual stipulations of the parties (# 104, 110); the testimony of nine witnesses in a trial to the Court on July 29, 2008 (# 116, 117); the exhibits2 received as evidence at that trial; and the written (# 105, 108, 109, 118) and oral arguments (# 121) of counsel.3 As set forth more fully herein, the Court finds that the restrictions inhibit the Plaintiffs' ability to engage in some forms of expressive conduct. However, the Court also finds that the restrictions are justified by important governmental interests, are narrowly tailored to meet those interests, and the Plaintiffs have a wide variety of alternative means of expression that will allow them to effectively communicate their messages. Thus, although these restrictions impact the Plaintiffs' ability to assemble and express their views as they desire, the Court concludes that they do not unconstitutionally impair the Plaintiffs' First Amendment rights.
This action has evolved and the issues have been narrowed through consistent, good faith negotiation among the parties and the professionalism and skill of their counsel. Heeding the admonition of courts that have previously addressed similar claims on the eve of a national political convention,4 this action was initiated on May 1, 2008, before details of the Convention's security restrictions had been announced. The original Complaint (# 1) and Motion for Preliminary Injunction (# 2) sought to compel production of information about the intended restrictions, so as to then allow the Plaintiffs to mount a substantive challenge to the restrictions that would be revealed. Through diligent negotiation, the parties were able to resolve issues related to the production of the security information (# 46). Thereafter, the Plaintiffs filed an Amended Complaint (# 48), leveling the substantive First Amendment challenges presented herein. (The Plaintiffs have withdrawn other claims grounded in Article II, Section 10 of the Colorado Constitution.) The Defendants filed Motions to Dismiss (# 70, 72) some of the claims, but the parties have been able to resolve the issues raised in those motions, rendering them moot.5
The Plaintiffs' claims in this case are asserted pursuant to 42 U.S.C. § 1983, which provides for suits to vindicate violations by state actors of rights and privileges secured by the Constitution or laws of the United States.6 As to all claims, the Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331. In addition, because the United States, through the Secret Service, is a Defendant, the Court also has subject matter jurisdiction pursuant to 28 U.S.C. § 1346(a)(2).
The facts pertinent to all of the challenged restrictions are summarized below. Those facts which are uniquely important to a particular restriction will be addressed in greater detail in the analytical discussion.
The 2008 Democratic National Convention will be held in Denver, Colorado from Monday, August 25, through Thursday, August 28, 2008. The activities on the first three days/nights of the Convention will be held at the Pepsi Center; the final night of the Convention will be held at Invesco Field at Mile High Stadium. The Convention is expected to bring as many as 50,000 attendees to Denver, including 6,000 delegates, 14,000 Democratic Party officials and guests, and 15,000 members of the domestic and international media. In. addition, it is expected that the Convention will attract tens (some witnesses believe hundreds) of thousands of people who desire to publically express their views on various subjects through speeches, leaflets, demonstrations, and protests. The Plaintiffs are organizations and individuals who do not necessarily share the same agenda or viewpoint, but who all desire to communicate a message to the delegates, the media, and the general public prior to and during the Convention.
Although Convention-related activities will take place in a variety of arenas around the city throughout the day, the main events of the Convention will occur on afternoons and evenings inside the Pepsi Center. The Pepsi Center is a privately owned sports arena located on the edge of downtown Denver. Its grounds are bordered on the northeast by Speer Boulevard, a heavily-used, divided, multi-lane thoroughfare into downtown Denver; on the southeast by Auraria Parkway,7 another prominent, divided, multi-lane street; and on the southwest and northwest sides by railroad tracks, the Elitch Gardens amusement park, and eventually, the South Platte River. Both Speer Boulevard and Auraria Parkway offer entrances to/exits from Interstate 25, a major traffic artery that passes between the Pepsi Center and Invesco Field. (For aid in understanding the area in question, Trial Exhibit 43 is reproduced on the following page.)
The Pepsi Center grounds consist of several large parking lots, a handful of small commercial buildings, and the Pepsi Center itself, a large, circular enclosed arena. Although the Pepsi Center grounds are privately-owned property, a number of public city streets, notably 7th Street, 9th Street, and Chopper Circle enter into the grounds. During times when Convention activities are taking place, as many as 26,000 people may be inside the Pepsi Center itself, and another 30,000-40,000 people, including media, law enforcement personnel, Pepsi Center workers, and others may be present on the Pepsi Center grounds.
Security plans
security measures for the Convention. In developing the security plan, Denver formed a number of committees to work with the Secret Service and Convention organizers, and met representatives of other state and federal agencies, some of the Plaintiff organizations, and others to discuss various security concerns and decisions. After consideration of a wide range of the anticipated needs, resources, expectations, and contingencies, a consolidated Convention security plan was designed. The plan has the objectives of providing security to convention attendees and those at the convention site, keeping downtown Denver open and functioning, ensuring a functioning transportation network, and providing for public safety.
Details of the plan are discussed in greater detail below. It is sufficient at this point to note that the central feature of the security plan is the...
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