SIXTEENTH, ETC. v. City and County of Denver
| Decision Date | 15 August 1979 |
| Docket Number | Civ. A. No. 78-K-798. |
| Parties | SIXTEENTH OF SEPTEMBER PLANNING COMMITTEE, INC., a Colorado Nonprofit Corporation, Chairperson, Arturo Rodriquez, Vice-Chairperson, Theresa Romero, Secretary, Mary Espinoza, Treasurer, Maria Subia, Plaintiffs, v. The CITY AND COUNTY OF DENVER, COLORADO, William H. McNichols, Individually and as Mayor of the City and County of Denver, Colorado, Dan Cronin, Individually and as Manager of Safety of the City and County of Denver, Colorado, Art Dill, Individually and as Chief of Police of the City and County of Denver, Colorado, John Doe 1 and other John Does, whose true names are unknown but whose identities are known to named defendants, Individually and as officers of the Denver Police Department, Denver, Colorado, Edward F. Burke, Jr., Elvin R. Caldwell, Salvadore Carpio, Cathy Donahue, Stephen Grogan, Paul A. Hentzell, Kenneth M. MacIntosh, James J. Nolan, Larry Perry, William S. Roberts, J. L. Sam Sandos, L. Don Wyman, Cathy Reynolds, Individually and as members of the City Council for the City of Denver, Colorado, Defendants. |
| Court | U.S. District Court — District of Colorado |
Normando R. Pacheco, Denver, Colo., for plaintiffs.
Gerald Himelgrin, Asst. City Atty., Denver, Colo., for defendants.
In this action plaintiffs seek equitable and monetary relief because of the application of a municipal ordinance which allegedly deprives them of First Amendment rights. Plaintiffs are members and officers of the Sixteenth of September Planning Committee, Inc., a Colorado nonprofit corporation which is dedicated to advocacy of Chicano concerns. Several of the committee's specific goals, as set out in the complaint, are "to work toward a greater understanding between Chicanos and other racial and ethnic groups," "to foster self-respect, identity and dignity among Chicanos," and "to petition the government for redress of grievances through peaceful assembly and demonstration." (Complaint, at ¶ 5.) Defendants are the City and County of Denver and various city officials and employees, including the mayor and city council.
The action arises under 42 U.S.C. § 1983 and its jurisdictional counterpart at 28 U.S.C. § 1343. Jurisdiction is also alleged on the basis of 28 U.S.C. § 1331. In addition to compensatory damages, plaintiffs seek declaratory relief pursuant to 28 U.S.C. § 2201, to the effect that the challenged Denver ordinance be declared unconstitutional and void, and a permanent injunction to enjoin defendants from its enforcement.1
Section 332.5 of the Revised Code of the City and County of Denver relates to parades and processions and provides that "no parade or procession shall be allowed upon any street or public way until a permit therefor shall first be obtained from the Manager of Safety in accordance with the provisions of this Section; . . .." Revised Municipal Code of the City and County of Denver, § 332.5-1. Under the permit scheme set forth in the municipal code, applications to conduct a parade or procession must be made in writing to the Chief of Police and must set forth the procession's proposed route, the time of starting, the name of the responsible person or organization, and the purpose or object of the procession. In addition, the code provides:
The evidence shows that, in practice, a sergeant of the Denver Police Department initially decides whether a permit should be granted and, in the course of doing so, makes legal interpretations concerning the scope and application of the permit requirements.
In addition to the general provisions in § 332.5, subsection .5-2 establishes requirements which relate specifically to parades or processions in the "Central Business District," which area is defined as follows:
For the purposes of this Section, the Central Business District shall be bounded by and shall include the following streets: Commencing at the intersection of Larimer Street and 20th Street; thence proceeding Southwesterly on Larimer Street to Speer Boulevard; thence Southerly on Speer Boulevard to 13th Street to Colfax Avenue; thence Easterly on Colfax Avenue to Lincoln Street; thence Northerly on Lincoln Street to 20th Street; thence Northwesterly on 20th Street to the intersection of 20th Street and Larimer Street.
Municipal Code, § 332.5-2. Application for a permit in this area must be made at least thirty days in advance of the proposed event. More importantly, the subsection provides that:
Municipal Code, § 332.5-2(1) and (4).
On July 6, 1978, plaintiffs applied for a permit to conduct a parade in downtown Denver on Friday, September 15, 1978 between the hours of 9:00 a. m. and 4:00 p. m., along a requested route on 14th, 15th and 16th Streets.
As the name of the plaintiff planning committee suggests, the 16th of September is a date which has particular meaning and significance. As stated in one of its publications:
Throughout Mexico, September 16th exemplifies independence and the cry for self-determination that was heard around the world in 1810 when a humble priest named Miguel Hidalgo y Costilla dared to envision a free Mexico. Dispatching his men to resound his "Grito De Dolores" throughout Mexico, Hidalgo was not aware then that his same cry for independence would travel the barren wastes of time and implant itself in the heirs to a spirit of self-determination and independence that was Hidalgo, Morelos, Zapata and Villa.
The question naturally arises if September 16 is the important date, why was the application made for a parade to be held on September 15th? The answer to this question explains the case. September 16, 1978 fell on a Saturday. Plaintiffs' application for the permit was not motivated by a desire to enjoy fellowship but rather by a sense of mission:
The question that is posed by many people is the reasoning behind the choice of September 16th by Chicanos to voice our discontent of the lifestyles, value systems and burden of cultural genocide placed upon our shoulders by this society. The relation is clearly one of heritage and cultural roots. It is also based upon family ties, blood lines, ancestral traditions and cultural heritage. But more importantly it is appropriate that a Chicano people display their determination for social justice and Chicano/Mexicano Liberation. (Emphasis added.)
This case involves political expression of the most traditional and respected sort. While plaintiffs' activity is also a celebration of Mexican freedom, it is primarily a demonstration of political and social grievances.
In this case, the effect of § 332.5-2 is to proscribe all weekday processions in the central business area of Denver, between the hours of 7:00 a. m. and 6:00 p. m., except on 14th and 15th Streets between Broadway and Curtis. To one not familiar with the Denver area, this regulation might appear as one which reasonably confines public processions to certain times and places, but, for better or worse, Denver's is one of those downtown areas where the workday population greatly exceeds the population which remains after 6:00 p. m. and on weekends. It is estimated that approximately 82,300 people work in the downtown Denver area while only about 2,300 people live there. Indeed, one could roll a bowling ball down 17th Street after 6:00 p. m. and not hit anyone.
On the basis of § 332.5-2 et seq., defendant Dan Cronin, Denver's Manager of Safety, denied the permit application. Plaintiffs filed this action on August 7, 1978 and sought preliminary injunctive relief on the grounds that they had been deprived of First Amendment rights and equal protection of the law. On August 16, 1978, plaintiffs' motion for a temporary restraining order was granted and defendants were ordered to issue the permit as requested. With that permit, plaintiffs conducted the planned activity on September 15. A trial was held on February 2, 1979, briefs were filed and the matter is ready for final disposition.
The basic positions of the parties are relatively easy to state. Plaintiffs argue that § 332.5-2 is a continuing prior restraint on their First Amendment rights and effectively deprives them of those rights, since the questioned section of the code works a total prohibition of efforts to reach their intended audience. Defendants' response is that § 332.5-2 is nothing more than an allowable regulation concerning the time, place and manner of parades and processions which are proposed to take place in Denver's central area, and that these constraints are justified by...
To continue reading
Request your trial
-
Stonewall Union v. City of Columbus
...Schneider v. New Jersey, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939); Sixteenth of September Planning Committee v. City of Denver, 474 F.Supp. 1333, 1340 (D.Colo.1979). In the present case, on its face, the ordinance is not content-specific and does not create a blanket prohib......