Cole v. Goossen

• Decision Date: 30 August 2019
• Docket Number: Case No. 5:19-CV-4028-HLT-ADM
• Citation: 402 F.Supp.3d 992
• Parties: Jonathan T. COLE, et al., Plaintiffs, v. Duane GOOSSEN, et al., Defendants.
• Court: U.S. District Court — District of Kansas

402 F.Supp.3d 992

Jonathan T. COLE, et al., Plaintiffs,

v.Duane GOOSSEN, et al., Defendants.

Case No. 5:19-CV-4028-HLT-ADM

United States District Court, D. Kansas.

Signed August 30, 2019

Zal Kotval Shroff, ACLU Foundation of Kansas, Wichita, KS, Lauren Bonds, American Civil Liberties Union of Kansas, Overland Park, KS, for Plaintiffs.

Arthur S. Chalmers, Office of Attorney General, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE

Plaintiffs Jonathan Cole, Katie Sullivan, and Nathaniel Faflick filed this case seeking declaratory and injunctive relief regarding certain policies and regulations at the Kansas Statehouse that they claim are unconstitutional. Defendants Duane Goossen, Kansas Secretary of Administration, Tom Day, Legislative Administrative Services ("LAS") Director, and Sherman Jones, Superintendent of the Kansas Highway Patrol—all named in their official capacities—have moved to dismiss the operative amended complaint on grounds that Plaintiffs lack standing. Doc. 22. Plaintiffs have moved for a preliminary injunction. Doc. 3.

Because Plaintiffs face no credible threat of enforcement of the handheld sign provision in the usage policy challenged in Count II of the amended complaint, and because they only face a speculative threat of future alleged retaliation, as claimed in Count IV, the Court dismisses those counts for lack of standing. The Court denies Defendants' motion as to Counts I and III. As to the surviving counts, the Court denies Plaintiffs' motion for a preliminary injunction. The Court finds that Plaintiffs have failed to carry their heightened burden of showing a likelihood of success on the merits for either Count I or Count III and have not demonstrated that they are likely to suffer irreparable harm on either count.

I. BACKGROUND

A. Plaintiffs' March 27, 2019 Protest

On March 27, 2019, Plaintiffs, along with some others, entered the Kansas Statehouse to protest the failure to expand Medicaid in Kansas. Doc. 9 at 10. During their protest, Plaintiffs unfurled four 24-by-10 feet banners that read "Blood on Their Hands #Expand Medicaid," with each banner naming a different legislative leader. Id.¹ Plaintiffs hung the cloth banners from balconies on the 5th floor overlooking the Statehouse rotunda. Tr. at 25:11-12.² They held the banners in place using cords strung through the railing balusters. Tr. at 162:15-163:5. The banners hung from the 5th floor down into a walkway on the 3rd floor. Id. ; Doc. 9 at 10-11.

Within a few minutes, Day removed the banners by pulling them up. Day told Cole, "I am not telling you to leave but don't put the banner down." Id. at 10. A short time later, Capitol Police Officer Scott Whitsell stopped Plaintiffs and informed them he was issuing a ban on them entering the Statehouse for one year because they broke policy. Id. at 10-11. Whitsell detained Plaintiffs for about ten minutes before releasing them without saying what policy Plaintiffs violated. Id. at 11.

The next day, March 28, 2019, Whitsell's supervisor, Lieutenant Eric Hatcher, called Plaintiffs and told them he was lifting their ban from the Statehouse. Id. Hatcher told Cole that he "did something wrong" by unfurling the banners, but that a one-year ban was "a little harsh." Id. Hatcher did not identify any specific policy that Plaintiffs violated, but he did tell Cole that he needed to obtain a permit to demonstrate with Sullivan or Faflick in the future. Id. Hatcher later testified that he had informed the Capitol Police under his command that bans should only be issued for violations of the law, not policy. Tr. at 262:15-18; 265:5-17; 266:4-13; 283:18-284:5.

B. Regulations and Statehouse Policies

After his call with Hatcher on March 28, 2019, Cole reviewed the rules and regulations governing demonstrations at the Statehouse. Doc. 9 at 11-12. According to the amended complaint, Cole discovered that state regulations required prior permission for any "meeting, demonstration or solicitation" on Statehouse grounds, and that a policy prohibited "personal signage" in the Statehouse unless part of a preapproved event. Id. Cole also learned that the Capitol Police could ban someone from the Statehouse for any perceived rule violation. Id.

Article 49 of the Kansas Department of Administration's regulations govern certain conduct in state-owned buildings. Two are relevant to this case. K.A.R. § 1-49-9 states in part that "[a]ny person violating any of these regulations may be expelled and ejected from any of the buildings or grounds of buildings listed in K.A.R. 1-49-1."³ K.A.R. § 1-49-10 states in part that "[n]o person shall conduct any meeting, demonstration or solicitation on any of the grounds or in any of the buildings listed in K.A.R. 1-49-1 without the prior permission of the secretary of administration or the secretary's designee."

The Kansas Department of Administration has issued a "Policy for Usage of the Statehouse and Capitol Complex," effective January 2018. Doc. 14-2.⁴ The Kansas Statehouse is a historic landmark and the seat of state government in Kansas. Id. at 3. The usage policy states that different entities control different parts of the Statehouse. The Office of Facilities and Property Management ("OFPM"), part of the Department of Administration, controls the ground level and 1st and 2nd floors of the Statehouse, as well as the Statehouse grounds. Id. LAS controls the legislative chambers and committee rooms, the 3rd through 5th floors of the Statehouse, and other areas managed by the state legislature. Id. The Kansas State Historical Society controls some remaining areas on the ground level of the Statehouse. Id.

The usage policy sets out procedures to request permission to hold an "event" in areas controlled by OFPM. Id. Non-governmental entities must pay a $20 application fee. Id. at 4. Applicants must submit their requests no later than ten work days before the "requested activity." Id. at 3. The event must relate to a governmental purpose, and the Secretary of Administration or his or her designee has "final authority in determining whether an event may be approved, whether the event relates to a governmental purpose and whether or not any provision of [the usage] policy may be waived." Id. at 3, 5. Those seeking to use space in the areas controlled by LAS must make that request directly to that office. Id. at 3. But the usage policy applies to those areas as well. Tr. at 129:3-8. The usage policy also states that "[n]o banners, signs, exhibits or any other materials will be taped, tacked, nailed, hung or otherwise placed in any manner within the Capitol Complex." Id. at 7 (section 3.h.xix.). Additionally, the usage policy prohibits "personal signage" in the building. Id. (section 3.h.xxii.)

C. Kansas Poor People's Campaign June 18, 2018 Incident

The amended complaint also references another incident at the Statehouse a year earlier involving the Kansas Poor People's Campaign. On June 18, 2018, the Capitol Police briefly locked the Statehouse doors to prevent entry by a group of protestors and threatened them with arrest for unlawful assembly. Doc. 9 at 9. The amended complaint does not allege that Plaintiffs were involved in that incident. In response to the June 18 incident, the Legislative Coordinating Council requested a review of the Capitol Police's conduct. Doc. 9 at 9 n.13 (citing to the report of June 18, 2018 incident); see also Doc. 3-2 (report of June 18, 2018 incident). According to the amended complaint, Day, as director of LAS, drafted a report indicating that the Capitol Police have authority to ban or exclude individuals from the Statehouse, and that there were no policies guiding officer discretion on whether or when to exclude or expel individuals from the building. Doc. 9 at 9-10.

D. Plaintiffs' Lawsuit

Plaintiffs filed this case under 42 U.S.C. § 1983 not long after their March 27, 2019 protest where they unfurled the two-story banners. Doc. 1. Shortly thereafter, they amended their complaint. Doc. 9. The operative amended complaint has four counts. Count I asserts a First Amendment violation against Goossen and Day stemming from the permitting scheme outlined in the usage policy and regulations. Id. at 12-13. Count II asserts a First Amendment violation against Goossen and Day based on the usage policy's ban on handheld signs. Id. at 14. Count III is against all defendants and asserts First and Fourteenth Amendment violations based on Defendants' policy and practice authorizing the Capitol Police to ban individuals from the Statehouse "if they suspect the individual's First Amendment activity will result in a violation of building rules." Id. at 14-15. Count IV asserts a First Amendment retaliation claim against Defendants. Id. at 15.

Plaintiffs only seek prospective relief. Specifically, they seek declaratory judgments, a preliminary and permanent injunction enjoining the permitting rules and the ban on all handheld signs, as well as on the policy empowering Capitol Police to ban individuals from the Statehouse. Id. at 16. Plaintiffs also seek an injunction "enjoining Defendants from retaliating against Plaintiffs in the future for past, present, or future exercise of their First Amendment rights." Id. at 17.

Upon filing their original complaint, Plaintiffs immediately moved for a preliminary injunction. Doc. 2.⁵ They seek a preliminary injunction enjoining Defendants from:

(1) Enforcing their permitting scheme under K.A.R. 1-49-10 and the Statehouse usage policy;

(2) Enforcing the Statehouse usage policy's ban on the display of hand-held posters and signs in the public areas of the Statehouse and its grounds;

(3) Issuing any complete premises ban pursuant to K.A.R. 1-49-9 that are exclusively for violations of the Statehouse usage policy.

Doc. 3 at 28-29. The Court held an evidentiary hearing on the preliminary-injunction motion on June 19, 2019.⁶

At the same time they responded to the preliminary-injunction motion, Defendan...