United States District Court, D. Kansas
VICTORY THROUGH JESUS SPORTS MINISTRIES FOUNDATION and GORDON HUNJAK, Plaintiffs,
CITY OF OVERLAND PARK, KANSAS, Defendant.
FINAL ORDER GRANTING JUDGMENT IN FAVOR OF PLAINTIFFS AND IMPOSING PERMANENT INJUNCTION
KENNETH G. GALE, Magistrate Judge.
This matter is before the Court for trial upon stipulated facts. The Court has reviewed the stipulations, reviewed the parties' memoranda, and entertained oral argument.
Plaintiffs challenge a Resolution enacted by Defendant City of Overland Park which prevents Plaintiffs from handing out pamphlets promoting its camps on the sidewalks outside the gates of an enclosed outdoor soccer facility. Plaintiffs challenge the Resolution as a violation of the First Amendment guarantee of free speech. Defendant claims that the area at issue is not a "public forum, " and that the regulation is necessary to ensure the efficient flow of pedestrian traffic to and from the facility and prevent litter.
A. The Soccer Complex.
In 2008 and 2009, Defendant City built a soccer complex on City property previously used as a city park and public golf course. The resulting outdoor facility is owned and operated by the City. The complex consists of twelve full-size soccer fields, playgrounds, concession areas, office space, storage areas, a lounge, locker rooms, a first aid office, and parking areas. Photographs of the facility admitted by stipulation also reveal a skate park, baseball diamonds and tennis courts, and a family farm area on the south side.
The complex is bordered on the north by 135th Street and on the east by Switzer Road. City sidewalks parallel both streets next to the complex. The complex is not fenced off from these main streets.
An access road, built to service the new complex, runs irregularly on a diagonal northwest to southeast bisecting the complex from 135th Street to Switzer road. The access road is not fenced. Use of this road is open to the public. A biking/hiking trail runs through the complex between 135th Street and Switzer, roughly parallel to and west of the access road. The trail is not fenced.
The complex contains 12 soccer fields, nine in the western portion (to the west of the access road) and three in the eastern portion. The nine contiguous fields on the west side are fenced from the parking lots and the access road. Visitors enter and exit through four gates on the east side, providing entrance from the parking areas and the access road. Sidewalks run along the outside of the fence from the main streets and lead to the gates. The main gate is 20 feet wide, and the #2 gate is 10 feet wide. The complex includes two interior parking lots for visitors to the western fields. The sidewalks follow the fences and extend to connect to the two main roads. At the areas of the main gates to the western fields, walkways jut out in a rectangle from the gate areas into the parking lot areas. A 10-foot wide walkway leads from the parking areas to the gates. All of these walkways outside the gates are open for general public use when the complex is open, and there are no restrictions on using these to, for example, walk a dog or jog for exercise. There are also walkways inside the gated area connecting the fields.
The fields inside the gated area are not open to the general public. They may only be used by groups who rent or lease the facility, or portions of it, for a fee. The intended purpose of the complex was and is to lease or rent space to groups for privately-organized soccer practices, contests, and tournaments. The fields inside the gates are open only when rented or leased by a group. When the fields are not rented or leased, the fields are not open and the gates are closed. During the nine-month soccer season from March 1 to December 1, 2012, the complex was visited by 986, 626 people.
B. The City's Policy and Ordinance.
The City does not intend the gates or the sidewalks from the parking lots to be a forum for public discourse, public debate, or assembly by members of the general public. First by practice, and now by resolution, the City prohibits such expressive activity around the gates, the parking lots, and the sidewalks from the parking lots to the gates. The City has never permitted such use, and has directed persons to stop distributing literature when it learns of such activities.
Parking at the complex is limited and the City prohibits activities that hinder the efficient flow of pedestrian traffic between the soccer fields and the parking lots. Flyer distribution at the complex can create a trash problem when recipients throw unwanted promotional materials on the ground.
The distribution of literature is prohibited even if it does not slow down traffic or cause a trash problem. Groups who lease portions of the complex are permitted to distribute informational material only to their patrons, and only in the space (fields) rented or leased by the group. In at least one instance, when a group leased the entire complex, one of the group's sponsors (a college) was permitted to set up a tented table and distribute literature on the walkway inside the gated section.
Initially, the City's policy was unwritten, but prohibited the distribution of any literature on the parking lot sidewalks near the fenced soccer fields. Individuals who attempted to do so were asked to stop. In May 2012, the City put this policy in writing for staff members of the complex. The written policy stated that the interior portion of the soccer complex (i.e. the entire complex both within and without the fenced areas) "has not been designated a public forum for the purpose of First Amendment protected activity." The written policy prohibited distribution of literature in the interior portions of the complex, except that renters were still allowed to provide materials to their patrons in renter spaces. An e-mail included a map showing City officials where ...