John Doe v. City of Albuquerque, No. 10–2102.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: EBEL
• Citation: 667 F.3d 1111
• Parties: John DOE, Plaintiff–Appellee, v. CITY OF ALBUQUERQUE, Defendant–Appellant.
• Docket Number: No. 10–2102.
• Decision Date: 20 January 2012

667 F.3d 1111

John DOE, Plaintiff–Appellee,
v.
CITY OF ALBUQUERQUE, Defendant–Appellant.

No. 10–2102.

United States Court of Appeals, Tenth Circuit.

Jan. 20, 2012.

[667 F.3d 1115]

Gregory S. Wheeler, Assistant City Attorney for the City of Albuquerque (Robert J. Perry, City Attorney; Peter H. Pierotti, Assistant City Attorney, with him on the brief), Albuquerque, NM, for Defendant–Appellant.

Brendan K. Egan of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu LLP, Santa Fe, NM, (Richard W. Hughes of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu LLP, Santa Fe, NM; Laura Schauer Ives, Managing Attorney, ACLU of New Mexico, Albuquerque, NM; Maureen A. Sanders of Sanders & Westbrook, PC, Albuquerque, NM, with him on the brief), for Plaintiff–Appellant.

Before BRISCOE, Chief Judge, EBEL and O'BRIEN, Circuit Judges.

EBEL, Circuit Judge.

This appeal presents us with a difficult issue of first impression. John Doe, a registered sex offender, brought a facial challenge under the First and Fourteenth Amendments to a ban enacted by the City of Albuquerque that prohibited registered sex offenders from entering the City's public libraries. The district court denied a motion to dismiss brought by the City and ultimately granted summary judgment in favor of Doe. The court concluded that the ban burdened Doe's fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert Doe's contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum. The City appeals both the denial of its motion to dismiss and the grant of Doe's summary judgment motion.

Complicating our inquiry is the fact that the City, relying on a mistaken interpretation of case law regarding facial challenges, erroneously contended that it had no burden to do anything in response to Doe's summary judgment motion. Consequently, the City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information. Had the City done so, it is not difficult to imagine that the ban might have survived Doe's challenge, for we recognize the City's significant interest in providing a safe environment for its library patrons, especially children. As an appellate court, however, we are bound by the record and the law. And in this case they require us to affirm the district court.

I. BACKGROUND A. Factual Background

Plaintiff–Appellee John Doe ¹ is registered with the State of New Mexico as a convicted sex offender. Doe alleges that prior to March 2008, he held a library card from the City of Albuquerque (the “City”) and that he “frequently visited the City's public libraries, checked out books, CD's, used other reference material available to

[667 F.3d 1116]

him, and attended meetings and lectures.” (Aplt. App'x at 3.) However, on March 4, 2008, the City issued a one-paragraph “Administrative Instruction” ² banning all registered sex offenders from using any of the City's public libraries. The entire text of the Administrative Instruction is set forth below:

Registered sex offenders are not allowed in public libraries in the City of Albuquerque. This ban includes any person currently registered under the Megan's law of any state, the New Mexico Sex Offender Registration and Notification Act or the Albuquerque Sex Offender Registration and Notification Act. Library staff shall send a letter to every sex offender who has a library card and inform them they are no longer allowed in our libraries. The Albuquerque Police Department, the Bernalillo County Sheriff's Office, the New Mexico State Police and other law enforcement agencies shall enforce this ban.( Id. at 11.) Pursuant to the ban, Doe received a letter informing him that he was barred from entering the City's public libraries.

B. Procedural Background

On October 9, 2008, Doe sued the City in New Mexico state court, asserting, inter alia, causes of action under 42 U.S.C. § 1983 for violation of the right to receive information under the First Amendment and violation of the right to equal protection under the Fourteenth Amendment.³ Doe sought a declaration that the ban was unconstitutional and injunctive relief precluding the City from denying him access to the City's public libraries.

On November 6, 2008, the City removed the case to the United States District Court for the District of New Mexico and filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The City argued that Doe's complaint failed to state a claim because, inter alia, (1) the City's ban did not implicate a fundamental right; (2) the ban was entitled to a presumption of constitutionality; and (3) the ban was directed only at sex offenders, who as a class do not enjoy the same rights as others. On September 30, 2009, the district court denied the City's motion to dismiss, concluding that Doe's First Amendment claim stated a plausible claim for relief and that application of rational-basis review did not foreclose Doe's equal protection claim at the pleading stage.

On May 15, 2009 Doe filed a motion for summary judgment. Doe argued that (1) he had a First Amendment right to receive information at public libraries; (2) public libraries were designated public fora and thus the ban was subject to the time, place, or manner test set forth in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (the “ Ward test”); ⁴ and (3) the ban

[667 F.3d 1117]

satisfied neither this test nor rational-basis review. In response, the City argued that because Doe was challenging the ban on its face, Doe had to show that the law could not be constitutionally applied under any circumstance, and thus facts related to the passage and purpose of the ban were irrelevant. The City further argued that because the ban was content-neutral, the Ward test did not apply. Accordingly, although the City provided a hypothetical justification for the ban and cursorily asserted that the ban was narrowly tailored, the City did not submit any evidence as to the prongs of the Ward test in opposing Doe's motion.

On March 31, 2010, the district court granted Doe's summary judgment motion. The court determined that because the ban implicated the right to receive information under the First Amendment in a designated public forum, the Ward test applied. The court noted that the City, as the party opposing summary judgment, was required under Federal Rule of Civil Procedure 56 to make an adequate showing on the essential elements of its case on which it had the burden of proof—in this case, the elements of the Ward test. The court determined that the City failed to make this showing because, even assuming the purpose of the ban was to protect children from contact with sex offenders, the City did not demonstrate that the ban was narrowly tailored and that it left open ample alternative channels of communication. The district court further determined that the City failed to show that the ban was sufficiently tailored for the purposes of Doe's equal protection claim. Accordingly, although the court emphasized that it was not recognizing an independent fundamental right of access to a public library, it concluded that the ban, “ as currently written and in its present form,” was unconstitutional as a matter of law. (Aplt. App'x at 225, 246.)

The City appeals the district court's denial of the City's motion to dismiss and the court's grant of summary judgment in favor of Doe. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.⁵

[667 F.3d 1118]

II. DISCUSSION A. The City's motion to dismiss

The City argues that in denying the City's motion to dismiss, the district court erred by (1) “appl[ying] censorship cases pertaining to the right of the public to receive information in their homes,” (2) “ignor[ing] the presumption of constitutionality that applies to all laws,” and (3) “analyz [ing] the case based on the contours of the rights of the general public with no deference to the fact that the ban applied to sex offenders.” (Aplt. Br. at 13.) As discussed below, we reject each of these contentions and affirm the district court's denial of the City's motion to dismiss.

1. Standard of Review

“This court reviews the denial of a Rule 12(b)(6) motion to dismiss de novo, applying the same standard as the district court, and accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the [plaintiff].” Ashley Creek Phosphate Co. v. Chevron USA, Inc., 315 F.3d 1245, 1267 (10th Cir.2003). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, the “[f]actual allegations must be enough to raise a right to relief above the speculative level,” and a complaint that merely offers “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action,” is insufficient. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

2. The right to receive information has been recognized in numerous contexts other than “censorship cases,” and thus the district court did not err in concluding that Doe sufficiently alleged a violation of this right.

The Supreme Court has repeatedly recognized that the First Amendment includes not just a right of free speech, but also a right to receive information. See Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas.......