Faustin v. City & Cnty. of Denver

Decision Date28 September 2001
Docket NumberNo. 00-1168,00-1168
Citation268 F.3d 942
Parties(10th Cir. 2001) WENDY FAUSTIN, Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER, COLORADO; CHIEF 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
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from United States District Court for the District of Colorado (D.C. No. 98-N-2554) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Stanley M. Sharoff, Assistant City Attorney, (J. Wallace Wortham, Jr., City Attorney, with him on the briefs), Denver, Colorado, for the appellants.

Michael J. Deprimo, of AFA Center for Law & Policy, Tupelo, Mississippi (Stephen M. Crampton, Brian Fahling, and Bryan J. Brown, of AFA Center for Law & Policy, Tupelo, Mississippi, and Frank D. Mylar, Salt Lake City, Utah, with him on the brief), for the appellee.

Before BRISCOE, McWILLIAMS, Circuit Judges, and JENKINS, District Judge.*

BRISCOE, Circuit Judge.

Defendants appeal the district court's decision to grant summary judgment to plaintiff Wendy Faustin on her claim under 42 U.S.C. 1983 that her First Amendment rights were violated. We affirm in part, reverse in part, and remand.


On several occasions, Faustin displayed a banner at the Perry Street overpass in Denver. The banner measures three feet by ten feet and reads "Abortion kills children." Faustin and a friend stand on the sidewalk of the overpass to display the banner, each holding one end of the banner. Motorists in cars traveling on Highway Six, the roadway running under the overpass, can see the banner. The overpass consists of a road with a sidewalk running along one side. The sidewalk is public property, intended for pedestrian traffic. The sidewalk is approximately five feet wide, and a fence runs along it to prevent pedestrians from falling onto the highway below the overpass.

On December 5, 1997, Faustin was displaying the banner at the overpass when Denver Police Officer Lindsay approached her and asked her to stop displaying the banner. Faustin complied but asked Lindsay to cite the specific law she was violating. Sergeant Subia of the Denver Police arrived a short time later. The two officers reviewed a traffic manual but could find no law proscribing the display of the banner. The officers told Faustin they were unaware of any law she had violated by displaying the banner. On February 6, 1998, Faustin was displaying the banner at the overpass when Sergeant Reyes of the Denver Police informed her she could not display the banner. Faustin told Reyes she was finished for the day, and Reyes did not pursue the matter.

On March 6, 1998, Faustin was displaying the banner at the overpass when Denver Police Officer Blea told her she was violating the Posting Ordinance (Denver Municipal Code section 3-1).1 Blea consulted with Lieutenant Fink, who noted Faustin's banner also violated the Outdoor Advertising Act. See Colo. Rev. Stat. 43-1-401 et seq (1999). Following Faustin's March 6 encounter with the Denver Police, her attorney sent a letter to then-Police Chief Michaud requesting assurances that Faustin would not be arrested for displaying the banner, but received no response.

On August 7, 1998, Faustin was displaying the banner at the overpass when she was approached by Denver Police Officer Awe. Within fifteen minutes, four other police cars arrived. Sergeant Honer cited Faustin for violating section 3-1. The charge was formally dismissed on October 9. The City Prosecutor determined that the posting ordinance did not apply because the banner was not affixed to anything. Faustin's attorney wrote to Police Chief Sanchez requesting assurance that Faustin would not be arrested for displaying the banner, but received no response.

On November 18, 1998, Assistant City Attorney Thomas sent a memorandum to Chief Sanchez advising him that Faustin's conduct was protected speech activity which could continue until and unless an actual public safety hazard was presented. Thomas also advised Chief Sanchez that any regulation of speech on the overpass required a compelling state interest and needed to be narrowly tailored.

Faustin filed her 42 U.S.C. 1983 complaint on November 23, 1998. The complaint alleged that Denver's policy of prohibiting speech on the overpass, specifically application of section 3-1 to Faustin's display of the banner, was unconstitutional. As regards an alleged unlawful policy, custom or practice, Faustin alleged in her complaint that "Defendant City and County of Denver police officers have, on at least four (4) separate occasions, approached Plaintiff and unlawfully demanded that she remove the handheld display of the sign from the Perry Street overpass. These repeated unlawful demands constitute a policy, custom, or practice of the Denver Police Department." Aplt. App. at 21. The complaint goes on to allege that "[a]s a direct and proximate result of Defendants' actions, and the customs, practices, and policies of the Denver Police Department, Plaintiff is chilled and deprived of her right to free speech [and free exercise of religion and free assembly]. Plaintiff has suffered, is suffering, and will continue to suffer irreparable harm as a direct result of Defendants' conduct." Id. at 23. Faustin requested declaratory and injunctive relief, as well as nominal damages, costs, and fees. Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), claiming the case was moot and that Faustin lacked standing because the charge against her had been dismissed and was unlikely to recur. The district court denied the motion.

The parties filed cross-motions for summary judgment. Defendants argued that Faustin properly could have been charged with violating Colorado Revised Statute section 42-4-606(1).2 Faustin responded that section 42-4-606(1) was vague and overbroad. In granting summary judgment in favor of Faustin, the district court held that section 3-1 was unconstitutional as applied to Faustin and that section 42-4-606 was facially unconstitutional because it was vague and overbroad as interpreted by defendants. See Faustin v. City & County of Denver, 104 F. Supp. 2d 1280 (D. Colo. 2000).


On appeal, defendants contend (1) Faustin lacks standing to challenge defendants' application of section 3-1 to her conduct because she seeks prospective relief for injuries that may not occur; (2) Faustin's constitutional challenge of section 3-1 as regards the section's application to her conduct is moot because the charge against Faustin was dismissed before this action was filed; (3) Faustin lacks standing to challenge the constitutionality of section 42-4-606 because she was never charged with violating that statute; (4) the district court erred in declaring section 42-4-606 facially unconstitutional; (5) the district court erred in holding the overpass walkway is a traditional public forum; and (6) the district court erred in finding municipal liability because there was no evidence to support a finding of a policy, practice, or custom of charging Faustin or others with violating section 3-1 when engaging in protected speech activities.

We review the grant of summary judgment de novo, applying the same legal standard as the district court. Mesa v. White, 197 F.3d 1041, 1043 (10th Cir. 1999). Summary judgment is proper if the evidence, viewed in the light most favorable to the non-movant, shows there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998).

Standing and mootness

We review questions of standing and mootness de novo. See Colo. Farm Bureau Fed'n v. United States Forest Serv., 220 F.3d 1171, 1173 (10th Cir. 2000; F.E.R. v. Valdez, 58 F.3d 1530, 1532-33 (10th Cir. 1995). Those who seek to invoke the jurisdiction of the federal courts must satisfy the Article III requirement of having an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). "Plaintiffs must demonstrate a personal stake in the outcome in order to assure that concrete adverseness which sharpens the presentation of issues necessary for the proper resolution of constitutional questions." Id. (internal quotations omitted). Plaintiffs must show they have sustained or are immediately in danger of sustaining some direct injury, and the injury or threat of injury must be real and immediate, not conjectural or hypothetical. Id. at 101-02. To establish standing, plaintiffs must show injury in fact, a causal relationship between the injury and the challenged action of the defendant, and a likelihood that the injury will be redressed by a favorable decision. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998).

Defendants contend Faustin lacks standing to challenge the application of section 3-1 to her conduct because the section 3-1 charge against Faustin was dismissed before this civil case was filed, and she is not being prosecuted under section 3-1 at this time. Defendants are partially correct. Faustin has standing to sue for damages based on her prosecution (including nominal damages, which she sought) and to seek declaratory relief with respect to her prosecution. See F.E.R., 58 F.3d at 1533 ("The Patients' claim for a declaratory judgment is similar to their claim for damages. In each, the Patients ask the court to determine whether a past constitutional violation occurred. In this dispute the alleged liability-producing act has already occurred. Because the question still exists as to whether the defendants violated the Patients' right to privacy, a controversy on the Patients' right to privacy still exists. . . . Therefore, the claim for a declaration that the defendants improperly...

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