Lippoldt v. Cole, No. 01-1226-JTM.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtMarten
Citation311 F.Supp.2d 1263
PartiesDonna LIPPOLDT, individually, Operation Save America, an unincorporated association, and Phillip Benham, individually Plaintiffs, v. 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.
Docket NumberNo. 01-1226-JTM.
Decision Date31 March 2004
311 F.Supp.2d 1263
Donna LIPPOLDT, individually, Operation Save America, an unincorporated association, and Phillip Benham, individually Plaintiffs,
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.
No. 01-1226-JTM.
United States District Court, D. Kansas.
March 31, 2004.

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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, Kansas — Law Department, Wichita, KS, for Defendants.

Emily B. Metzger, Office of United States Attorney, Wichita, KS, for Amicus.


MARTEN, District Judge.

This matter, involving a dispute over the denial of parade permits was tried to the court. Plaintiffs Donna Lippoldt ("Lippoldt") and Phillip Benham ("Benham") bring this action asserting that by denying their submitted parade permits defendants Stephen Cole ("Cole") and Beth Harlenske ("Harlenske") violated the First, Fourth, and Fourteenth Amendments to the United States Constitution and federal law, particularly 42 U.S.C. § 1983, and §§ 1, 2, 3, 7, 9, and 11 of the Kansas Bill of Rights. The court hereby makes the following findings of fact, based upon the documentary exhibits (including those presented to the court in support of prior pending motions), previously presented uncontroverted facts, and, where facts are controverted, upon the documentary evidence and testimony presented at trial. All findings are further grounded in the court's credibility determinations as to the individual witnesses. Throughout this opinion, the phrases "pro-life" and "anti-abortion" are used interchangeably.

Findings of Fact.

The Parties. Lippoldt is a resident of Sedgwick County, Kansas. Benham is a Free Methodist minister currently based in North Carolina. Lippoldt was responsible for coordinating the 2001 Summer of Mercy Renewal event ("Summer of Mercy Renewal" or "Event"), which consisted of a number of activities designed to protest abortion, including a Christian concert, an all-night prayer service, an assembly and parades.

Cole is Deputy Chief of Police of the City of Wichita Police Department ("WPD"). He was in charge of overseeing the WPD's responsibilities during the Event at Event-related activities.

Harlenske is an Assistant City Attorney for the City of Wichita. In that capacity, she advises City clients, including the Wichita Police Department, under the direction and assignment of the City Attorney, Gary Rebenstorf.

The Summer of Mercy Renewal. The protests took place throughout the City of Wichita from July 13, 2001 to July 21, 2001. The Summer of Mercy Renewal commemorated the ten-year anniversary of the so-called "Summer of Mercy" anti-abortion protests led by Operation Rescue

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in Wichita in 1991. Planning for the Event began approximately 12-16 months before the scheduled date. This was the first time Lippoldt had been the main organizer of an event of this size.

The Renewal was nominally organized under the banner of Operation Save America. Benham refers to himself as the "Director" of Operation Save America-National ("OSA-N"). OSA-N does not collect dues, and does not have any membership rosters. It does not have bylaws, or any organizational documents. Benham claimed his group had a federal identification number but did not know when that was received. Franchising documents do not exist for his group number. Benham is solely responsible for determining and approving all OSA-N activities and expenditures.

Lippoldt and her husband began calling themselves Operation Save America-Wichita ("OSA-W") in 2000, for identification purposes. The activities in which Ms. Lippoldt, her husband and volunteers participate have been represented as being undertaken by OSA-W. That organization includes lay people of like minds, as well as pastors planning anti-abortion events. There is no specific membership designation.

The Event was publicized throughout this country, both by pro-life and pro-choice advocates. Approximately twenty-four or twenty-five churches agreed in advance to participate as pro-lifers, but only twelve of those churches did in fact participate. Lippoldt had not known fewer churches to actually participate than had agreed to participate in this type of event. Similarly, approximately 1,400 people pre-registered for the Event. Lippoldt and Benham expected twice the number of pre-registrants to actually attend, but approximately 1,000 people actually signed in. Neither Lippoldt nor Benham has ever known an event to have fewer attendees than pre-registrants. The pre-registrants were not required to pay a fee to guarantee attendance. They were required to have their pastor's permission to attend, and were required to execute a pledge of non-violence. Attendees executed the pledge of non-violence at the door, prior to the Sunday evening rally.

Operation Safe Protest II. In response to the nationwide call of leaders on both sides of the issue to come to Wichita, the Wichita Police Department ("WPD") developed a tactical plan known as Operation Safe Protest II, which had the following stated goals:

Insure compliance with current laws, which provide for freedom of access to reproductive healthcare centers;

Insure that the civil rights of demonstrators are protected and provide equal protection of the law to all persons; and Conduct the operational plan in a manner to provide safety for all persons who may be impacted by the planned event.

Williams, Wichita's Chief of Police, placed Cole in charge of Operation Safe Protest II, overseeing the WPD's responsibilities during the Event. Cole was thus responsible for the initial planning which commenced approximately three to four months prior to the event. There were several different operational plans prepared in May 2001, for the events of July 2001. The last revision to the plan was July 1, 2001. The organizational plan included the closure of Bleckley Street to pedestrians, and it addressed the closure of Bleckley to vehicles. Specifically, traffic on Bleckley was limited to people living in the area, or doing business at that location on the south half of the block between Orme and Kellogg Drive. The rest of the street was closed to all traffic. The Early Discussions. Lippoldt began discussions with Captain Dotson about the summer events around February 2001, meeting

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with Dotson personally at least twice. She never mentioned to Captain Dotson or city staff her desire to have parades, with the exception of the downtown parade, but did discuss the particulars of that parade with Sgt. Pike. In his conversations with Benham and Lippoldt, Captain Dotson did not recall either of them mentioning a desire to have parades. Dotson also recalls Benham telling him (Dotson) that no one in Benham's organization or the national organization would work with Dotson.

The First Parade Permit. Lippoldt applied for and was granted a permit for a July 16, 2001 parade in the downtown area. Lippoldt described the planned downtown parade as having balloons, children, and a public proclamation of the Emancipation Proclamation for the unborn, with the signing of the proclamation at the end of the parade. Lippoldt noted that this parade focused on the Emancipation Proclamation for the unborn and was a part of the Summer of Mercy Renewal Event. Lippoldt admitted that this event gave her the opportunity to express any type of free speech that she desired, and that she wished to express religious views through the parade. She wanted to parade with her associates to convey that abortion was wrong. Benham also sought to express a religious message through his parade activities.

Cole knew that Lippoldt intended to have their downtown parade and made no move to prevent it. The parade was held as scheduled on July 16, 2001.

The Additional Parade Applications. On July 6, 2001, after the permit for the downtown parade had been approved, but before the parade took place, Benham had Lippoldt and an OSA member apply on his behalf for 10 more parade permits. Benham's name does not appear on the applications, but he intended to participate in the parades, along with his associates. Lippoldt paid a total fee of $150.00 (10 permits — $15 per permit) when submitting the applications to the City. Each of plaintiffs' parade applications was properly completed; none was technically wrong or incomplete.

This was the City's first notice of Lippoldt's desire to have parades on a route that included Bleckley Street, which, as noted above, was to be closed. In Cole's prior contacts with organizers prior to the event, no one had mentioned parades on Bleckley Street. Closing Bleckley Street, which was an administrative closure, was always part of the Operation Safe Protect plan, and was similar to a plan which closed Bleckley Street in 1995.

The City Ordinance. Chapter 3.13.050 of the City Code of the City of Wichita is the only ordinance regulating parades. It states "Upon receipt of a properly completed application form and upon payment of the fee as above provided, the city treasurer shall issue a permit as provided for hereunder." The contents of a parade application in the City of Wichita, Kansas are limited to those contained in Chapter 3.13.050(2) of the City Code of the City of Wichita. Six subsections in that chapter delineate the only exceptions for denying a parade application.

The Parade Application Process. Sgt. Pike normally reviews the parade applications submitted to the City of Wichita. He communicates to parade permit applicants any concerns and technical defects in the applications. While he...

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1 cases
  • Lippoldt v. Cole, No. 04-3156.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 7 Noviembre 2006
    ...permits, and a municipal court bond order. Lippoldt v. City of Wichita, 265 F.Supp.2d 1228 (D.Kan. May 28, 2003); Lippoldt v. Cole, 311 F.Supp.2d 1263 (D.Kan. Mar.31, 2004). Plaintiffs' counsel also appeal (04-3322) the district court's decision denying most of their requested attorney We e......

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