Lippoldt v. City of Wichita, Kansas
| Citation | 265 F.Supp.2d 1228 |
| Decision Date | 28 May 2003 |
| Docket Number | No. 01-1226-JTM.,01-1226-JTM. |
| Parties | Donna LIPPOLDT, individually, Operation Save America, an unincorporated association, and Phillip Benham, individually Plaintiffs, v. CITY OF WICHITA, KANSAS, a political subdivision of the state of Kansas, Deputy Chief Stephen Cole, in his official and individual capacity as an agent/employee of City of Wichita, Kansas, a political subdivision of the state of Kansas, Beth Harlenske, in her official and individual capacity as an agent/employee of City of Wichita, Kansas, a political subdivision of the state of Kansas Defendants. |
| Court | U.S. District Court — District of Kansas |
Brian R. Chavez-Ochoa, Chavez-Ochoa Law Offices, Valley Springs, CA, Donald A. McKinney, Wichita, KS, Frederick H. Nelson, American Liberties Institute, Orlando, FL, Richard A. Macias, Wichita, KS, for Plaintiffs.
Elizabeth Harlenske, Gary E. Rebenstorf, Jay C. Hinkel, Mary A. McDonald, Michael L. North, City of Wichita, Law Department, Wichita, KS, for Defendants.
Emily B. Metzger, Office of U.S. Attorney, Wichita, KS, for United States.
This matter comes before the court on the defendants' motion for summary judgment (Dkt. No. 92). Plaintiffs bring this action asserting violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution and under federal law, particularly 42 U.S.C. § 1983, and §§ 1, 2, 3, 7, 9, and 11 of the Kansas Bill of Rights.1 On July 16, 2001, the court granted the plaintiffs' motion for a temporary restraining order enjoining the defendants from enforcing their parade ordinance, Chapter 3.13 (parade ordinance) and the plaintiffs' motion for waiver of security bond (Dkt. No. 21). At that time, the court denied the plaintiffs' motion for a temporary restraining order enjoining the defendants from enforcing their municipal order dated June 3, 2001 (municipal order) (Dkt. No. 21). On September 28, 2001, the court denied defendants Stephen Cole and Elizabeth Harlenske's motion to dismiss plaintiffs' 42 U.S.C. § 1983 claims as they pertain to the moving defendants in their individual capacities (Dkt. No. 38). In the same order, the court granted the defendants' motion for dismissal of the plaintiffs' pendant state law claims for damages (Dkt. No. 38). However, the court specified that the ruling did not impact plaintiffs' right to seek prospective relief nor did it impact plaintiffs' ability to pursue a damage claim under § 1983. Defendants now have filed for summary judgment against all plaintiffs on all counts. The motion is fully briefed and ripe for determination. For the reasons stated below, the court grants the defendants' summary judgment motion in part and denies the motion in part.
Generally, plaintiff Operation Save America ("OSA") is a group of individuals who engage in speech activities related to the nature of abortion and abortion alternatives directed at those seeking to have or perform abortions and to those persons escorting others to have abortions as well as the general public. Plaintiffs Lippoldt and Benham are affiliated with OSA. Defendants Deputy Chief Steven Cole and Beth Harlenske are employees and agents of defendant City of Wichita, Kansas.
This action stems from plaintiffs' desire to convey their speech from public sidewalks and right-of-ways in Wichita, Kansas through parade activities. On July 6, 2001, plaintiffs submitted parade permit applications to the City for planned parades beginning on July 17, 2001 with the last parade on July 21, 2001. These events coincided with the 10th anniversary of the 1991 "Summer of Mercy," in which activists from around the country came to Wichita to engage in anti-abortion protests and other events, activities which attracted extensive media coverage throughout the nation. The defendants denied plaintiffs' parade permit applications.
The following are the facts the court finds uncontroverted and relevant.
Operation Save America—Wichita, ("OSA-W") has no identifiable, permanent members. The members consist of volunteers who come and go. The people who participate can change at each event or activity. It is a loosely-knit group of persons sharing an interest in stopping abortion, who from time to time gather and engage in planning and or conducting anti-abortion events and protests.
Mrs. Lippoldt and her husband commenced calling themselves OSA-W in 2000, for identification purposes. The activities in which Mrs. Lippoldt, her husband and volunteers participate have been represented as being undertaken and sponsored by OSA-W. OSA-W includes lay people of like minds, as well as pastors planning anti-abortion events. There is no specific membership! designation.
Phillip Benham described himself as the Director of OSA. However, he did not know the organizational structure of OSA. Mr. Benham described OSA as a "nonprofit". Mr. Benham did not know if it was an unincorporated association.
Phillip Benham participated in scheduled events including a pastors' breakfast, sidewalk counseling, praying and preaching in connection with anti-abortion beliefs. Phillip Benham participated in a parade which went to a park by the river. This was the first parades permit requested. A permit was issued by the city allowing it to occur. Over a thousand people attended that parade.
Mrs. Lippoldt participated in other planned events including a concert on the night of July 13, an all night prayer service on July 14, a solemn assembly on July 15, and a parade from downtown Wichita to A. Price Woodard Park. The parade application was approved.
The participants wanting to participate in the Summer of Mercy Renewal were required to sign a pledge of nonviolence, in order to be admitted to the night rallies. Mr. and Mrs. Lippoldt both signed this pledge.
Mrs. Lippoldt was not arrested at any time for any reason during the events encompassing the Summer of Mercy Renewal 2001.2 Phillip Benham was not arrested at any time for any reason during the events encompassing the Summer of Mercy Renewal 2001.
During the events of the Summer of Mercy Renewal 2001, there were two arrests of people that support abortion rights (pro-choice), for offenses against people who were against abortion (pro-life). Those arrested were not associated with OSA. The only pro-life people arrested during the event were two pastors for the crime of obstruction and three women who were charged with disturbing a worship service at Dr. Tiller's church. Two pro-choice people were arrested and charged with battery, during the events that encompassed the Summer of Mercy Renewal. These crimes occurred at the Clinic. Both people were later convicted.
Although OSA-W has talked about having future parades, there are no specific plans to host a parade. However, plaintiffs assert that Donna Lippoldt testified that it is "very likely" that both the organization OSA-W and she personally will request parade permits in the future. Plaintiffs also assert that Donna Lippoldt testified that the leadership of OSA-W had submitted an additional parade permit application for October 2001 and additional information related to future parades would be forthcoming.
The parade applications that were submitted for approval were in the organization name of either OSA-W, or OSA— National, with the applicant name listed as Donna Lippoldt. Plaintiffs also assert that Donna Lippoldt testified that she signed the applications "above the line that states applicant information ...." The Municipal Court Bond Order was signed by Judge Connolly, Administrative Judge for the Municipal Court, City of Wichita.
OSA promoted its "Summer of Mercy Renewal" activities by its brochure titled "Jesus is the Standard" which included references to the organization's phone number and web site among other information.
The procedure for obtaining Parade Permits is found at Chapter 3.13 of the City Code of the City of Wichita. City Officials involved in the application of Parade Permit review process did so after receiving advise and counsel of the City legal staff.
Chapter 3.13 provides, in part:
Section 3.13.030 Application.
A person seeking the issuance of a parade permit shall file an application with the city treasurer's office on forms provided by the city treasurer.
(1) Filing. An application for a parade permit shall be filed with the city treasurer not less than ten days before the date on which it is proposed to conduct the parade and no parade permit shall be issued for any date prior to ten days after the application is filed. The application shall be signed by the applicant.
(2) Contents. The application for a parade permit shall set forth the following information:
(a) The name, address and telephone number of the person seeking to conduct such parade;
(b) If the parade is proposed to be conducted for, on behalf of, or by an organization, the name, address and telephone number of the headquarters of the organization and the name, address and telephone number of the local authorized representative of such organization responsible for the conduct of the parade;
(c) The name, address and telephone number of the person who will be the parade chairman and who will be responsible for its conduct;
(d) The date when the parade is to be conducted;
(e) The route to be traveled, the starting point and termination point (f) The approximate number of persons, animals and vehicles which will constitute such parade, together with the specific classification of such animals and specific description of such vehicles;
(g) The hours when such parade will start and terminate;
(h) The location of any assembly areas of such parade and the time in which units of the parade will begin to assemble at any such assembly area or areas;
(i) The purpose of the parade. (Ord. No. 38-112 § 3).
Section 3.13.040 Application fee.
A fee of fifteen dollars to cover the expenses incident to processing shall...
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Lippoldt v. Cole
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