United States District Court, D. Kansas
JONATHAN T. COLE, et al., Plaintiffs,
DUANE GOOSSEN, et al., Defendants.
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE.
Jonathan Cole, Katie Sullivan, and Nathaniel Faflick filed
this case seeking declaratory and injunctive relief regarding
certain policies and regulations at the Kansas Statehouse
that they claim are unconstitutional. Defendants Duane
Goossen, Kansas Secretary of Administration, Tom Day,
Legislative Administrative Services (“LAS”)
Director, and Sherman Jones, Superintendent of the Kansas
Highway Patrol-all named in their official capacities-have
moved to dismiss the operative amended complaint on grounds
that Plaintiffs lack standing. Doc. 22. Plaintiffs have moved
for a preliminary injunction. Doc. 3.
Plaintiffs face no credible threat of enforcement of the
handheld sign provision in the usage policy challenged in
Count II of the amended complaint, and because they only face
a speculative threat of future alleged retaliation, as
claimed in Count IV, the Court dismisses those counts for
lack of standing. The Court denies Defendants’ motion
as to Counts I and III. As to the surviving counts, the Court
denies Plaintiffs’ motion for a preliminary injunction.
The Court finds that Plaintiffs have failed to carry their
heightened burden of showing a likelihood of success on the
merits for either Count I or Count III and have not
demonstrated that they are likely to suffer irreparable harm
on either count.
Plaintiffs’ March 27, 2019 Protest
March 27, 2019, Plaintiffs, along with some others, entered
the Kansas Statehouse to protest the failure to expand
Medicaid in Kansas. Doc. 9 at 10. During their protest,
Plaintiffs unfurled four 24-by-10 feet banners that read
“Blood on Their Hands #Expand Medicaid,” with
each banner naming a different legislative leader.
Id. Plaintiffs hung the cloth banners from
balconies on the 5th floor overlooking the Statehouse
rotunda. Tr. at 25:11-12. They held the banners in place using
cords strung through the railing balusters. Tr. at
162:15-163:5. The banners hung from the 5th floor down into a
walkway on the 3rd floor. Id.; Doc. 9 at 10-11.
a few minutes, Day removed the banners by pulling them up.
Day told Cole, “I am not telling you to leave but
don’t put the banner down.” Id. at
10. A short time later, Capitol Police Officer Scott
Whitsell stopped Plaintiffs and informed them he was issuing
a ban on them entering the Statehouse for one year because
they broke policy. Id. at 10-11. Whitsell detained
Plaintiffs for about ten minutes before releasing them
without saying what policy Plaintiffs violated. Id.
next day, March 28, 2019, Whitsell’s supervisor,
Lieutenant Eric Hatcher, called Plaintiffs and told them he
was lifting their ban from the Statehouse. Id.
Hatcher told Cole that he “did something wrong”
by unfurling the banners, but that a one-year ban was
“a little harsh.” Id. Hatcher did not
identify any specific policy that Plaintiffs violated, but he
did tell Cole that he needed to obtain a permit to
demonstrate with Sullivan or Faflick in the future.
Id. Hatcher later testified that he had informed the
Capitol Police under his command that bans should only be
issued for violations of the law, not policy. Tr. at
262:15-18; 265:5-17; 266:4-13; 283:18-284:5.
Regulations and Statehouse Policies
his call with Hatcher on March 28, 2019, Cole reviewed the
rules and regulations governing demonstrations at the
Statehouse. Doc. 9 at 11-12. According to the amended
complaint, Cole discovered that state regulations required
prior permission for any “meeting, demonstration or
solicitation” on Statehouse grounds, and that a policy
prohibited “personal signage” in the Statehouse
unless part of a preapproved event. Id. Cole also
learned that the Capitol Police could ban someone from the
Statehouse for any perceived rule violation. Id.
49 of the Kansas Department of Administration’s
regulations govern certain conduct in state-owned buildings.
Two are relevant to this case. K.A.R. § 1-49-9 states in
part that “[a]ny person violating any of these
regulations may be expelled and ejected from any of the
buildings or grounds of buildings listed in K.A.R.
1-49-1.” K.A.R. § 1-49-10 states in part that
“[n]o person shall conduct any meeting, demonstration
or solicitation on any of the grounds or in any of the
buildings listed in K.A.R. 1-49-1 without the prior
permission of the secretary of administration or the
Kansas Department of Administration has issued a
“Policy for Usage of the Statehouse and Capitol
Complex,” effective January 2018. Doc.
14-2. The Kansas Statehouse is a historic
landmark and the seat of state government in Kansas.
Id. at 3. The usage policy states that different
entities control different parts of the Statehouse. The
Office of Facilities and Property Management
(“OFPM”), part of the Department of
Administration, controls the ground level and 1st and 2nd
floors of the Statehouse, as well as the Statehouse grounds.
Id. LAS controls the legislative chambers and
committee rooms, the 3rd through 5th floors of the
Statehouse, and other areas managed by the state legislature.
Id. The Kansas State Historical Society controls
some remaining areas on the ground level of the Statehouse.
usage policy sets out procedures to request permission to
hold an “event” in areas controlled by OFPM.
Id. Non-governmental entities must pay a $20
application fee. Id. at 4. Applicants must submit
their requests no later than ten work days before the
“requested activity.” Id. at 3. The
event must relate to a governmental purpose, and the
Secretary of Administration or his or her designee has
“final authority in determining whether an event may be
approved, whether the event relates to a governmental purpose
and whether or not any provision of [the usage] policy may be
waived.” Id. at 3, 5. Those seeking to use
space in the areas controlled by LAS must make that request
directly to that office. Id. at 3. But the usage
policy applies to those areas as well. Tr. at 129:3-8. The
usage policy also states that “[n]o banners, signs,
exhibits or any other materials will be taped, tacked,
nailed, hung or otherwise placed in any manner within the
Capitol Complex.” Id. at 7 (section 3.h.xix.).
Additionally, the usage policy prohibits “personal
signage” in the building. Id. (section
Kansas Poor People’s Campaign June 18, 2018
amended complaint also references another incident at the
Statehouse a year earlier involving the Kansas Poor
People’s Campaign. On June 18, 2018, the Capitol Police
briefly locked the Statehouse doors to prevent entry by a
group of protestors and threatened them with arrest for
unlawful assembly. Doc. 9 at 9. The amended complaint does
not allege that Plaintiffs were involved in that incident. In
response to the June 18 incident, the Legislative
Coordinating Council requested a review of the Capitol
Police’s conduct. Doc. 9 at 9 n.13 (citing to the
report of June 18, 2018 incident); see also Doc. 3-2
(report of June 18, 2018 incident). According to the amended
complaint, Day, as director of LAS, drafted a report
indicating that the Capitol Police have authority to ban or
exclude individuals from the Statehouse, and that there were
no policies guiding officer discretion on whether or when to
exclude or expel individuals from the building. Doc. 9 at
filed this case under 42 U.S.C. § 1983 not long after
their March 27, 2019 protest where they unfurled the
two-story banners. Doc. 1. Shortly thereafter, they amended
their complaint. Doc. 9. The operative amended complaint has
four counts. Count I asserts a First Amendment violation
against Goossen and Day stemming from the permitting scheme
outlined in the usage policy and regulations. Id. at
12-13. Count II asserts a First Amendment violation against
Goossen and Day based on the usage policy’s ban on
handheld signs. Id. at 14. Count III is against all
defendants and asserts First and Fourteenth Amendment
violations based on Defendants’ policy and practice
authorizing the Capitol Police to ban individuals from the
Statehouse “if they suspect the individual’s
First Amendment activity will result in a violation of
building rules.” Id. at 14-15. Count IV
asserts a First Amendment retaliation claim against
Defendants. Id. at 15.
only seek prospective relief. Specifically, they seek
declaratory judgments, a preliminary and permanent injunction
enjoining the permitting rules and the ban on all handheld
signs, as well as on the policy empowering Capitol Police to
ban individuals from the Statehouse. Id. at 16.
Plaintiffs also seek an injunction “enjoining
Defendants from retaliating against Plaintiffs in the future
for past, present, or future exercise of their First
Amendment rights.” Id. at 17.
filing their original complaint, Plaintiffs immediately moved
for a preliminary injunction. Doc. 2. They seek a preliminary
injunction enjoining Defendants from:
(1) Enforcing their permitting scheme under K.A.R. 1-49-10
and the Statehouse usage policy;
(2) Enforcing the Statehouse usage policy’s ban on the
display of hand-held posters and signs in the public areas of
the Statehouse and its grounds;
(3) Issuing any complete premises ban pursuant to K.A.R.
1-49-9 that are exclusively for violations of the Statehouse
Doc. 3 at 28-29. The Court held an evidentiary hearing on the
preliminary-injunction motion on June 19, 2019.
same time they responded to the preliminary-injunction
motion, Defendants moved to dismiss Plaintiffs’ amended
complaint for lack of standing. Doc. 22. Defendants’
motion challenges Plaintiffs’ standing on grounds that
they have not demonstrated a particularized, actual, or
imminent injury supporting the prospective relief they seek.
Doc. 23 at 3. Defendants also briefly argue that, to the
extent any claims survive, the Court should dismiss all
claims against Defendant Tom Day. Id. at 17. Because
the motion to dismiss raises the threshold issue of
Plaintiffs’ standing to assert the claims on which they
seek an injunction, the Court first addresses that issue
before turning to the motion for a preliminary injunction.
Motion to Dismiss
At the pleading stage, the Court analyzes standing based on
the well- pleaded allegations of the
reaching the question of the preliminary injunction, the
Court must first evaluate Plaintiffs’ standing to bring
this case. See Initiative & Referendum Inst. v.
Walker, 450 F.3d 1082, 1087 (10th Cir. 2006)
(“[W]e cannot reach the merits based on
‘hypothetical standing,’ any more than we can
exercise hypothetical subject matter jurisdiction.”).
Courts are not “free-wheeling enforcers of the
Constitution and laws”-they are limited under Article
III of the Constitution to “cases” and
“controversies.” Id. The “mere
presence on the statute books of an unconstitutional statute,
in the absence of enforcement or credible threat of
enforcement, does not entitle anyone to sue, even if they
allege an inhibiting effect on constitutionally protected
conduct prohibited by the statute.” Mink v.
Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007) (quoting
Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir.
III of the Constitution limits the jurisdiction of federal
courts to cases and controversies. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). “The case or
controversy limitation requires that a plaintiff have
standing.” United States v. Colo. Supreme
Court, 87 F.3d 1161, 1164 (10th Cir. 1996); see also
Brady Campaign to Prevent Gun Violence v. Brownback, 110
F. Supp. 3d 1086, 1091 (D. Kan. 2015) (“One of several
doctrines reflecting Article III’s case-or-controversy
limitation on the judicial power is the doctrine of
standing.”). Standing requires that a plaintiff have an
actual stake in the controversy. Brady Campaign, 110
F. Supp. 3d at 1091. A plaintiff can show this stake by
demonstrating “that (1) he or she has suffered an
injury in fact; (2) there is a causal connection between the
injury and the conduct complained of; and (3) it is likely
that the injury will be redressed by a favorable
decision.” Ward v. Utah, 321 F.3d 1263, 1266
(10th Cir. 2003) (quoting Phelps v. Hamilton, 122
F.3d 1309, 1326 (10th Cir. 1997)).
burden of alleging standing is on a plaintiff. See
Initiative & Referendum, 450 F.3d at 1087. The
extent of a plaintiff’s burden depends on the stage of
the litigation. Lujan, 504 U.S. at 561. At the
pleading stage, “general factual allegations of injury
resulting from the defendant’s conduct may
suffice,” and courts “presum[e] that general
allegations embrace those specific facts that are necessary
to support the claim.” Id. (quoting Lujan
v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889
(1990)); see also Initiative & Referendum, 450
F.3d at 1089 (“When evaluating a plaintiff’s
standing at this stage, ‘both the trial and reviewing
courts must accept as true all material allegations of the
complaint, and must construe the complaint in favor of the
complaining party.’” (quoting Warth v.
Seldin, 422 U.S. 490, 501 (1975))). But a court need
not accept “conclusory allegations, unwarranted
inferences, or legal conclusions.” Brady
Campaign, 110 F. Supp. 3d at 1092.
Standing to seek prospective relief based on a claim of
First Amendment chilling requires a credible
threat of enforcement.
outset, the Court notes that Plaintiffs in this case do
not seek any retrospective or monetary relief based
on the events of March 27-28, 2019. Doc. 9 at 16-17. They do
not assert any claims for damages stemming from
Defendants’ actions in removing the two-story banners
Plaintiffs hung from the Statehouse balconies or for the ban
that lasted one day. Id. Plaintiffs seem to cite
that event only to bolster their claim of First Amendment
chilling. See Doc. 31 at 2 (asserting standing on
“their past experience with Defendants and their
justifiable fear of future consequences for failing to comply
with Statehouse rules”); see also Winsness,
433 F.3d at 735 (“We have noted that ‘a
declaratory judgment is generally prospective relief,’
and that we treat declaratory relief as retrospective only
‘to the extent that it is intertwined with a claim for
monetary damages that requires us to declare whether a past
constitutional violation occurred.’” (quoting
PeTA v. Rasmussen, 298 F.3d 1198, 1202-03 n.2 (10th
noted above, to demonstrate that he has an actual stake in
the controversy, a plaintiff must first demonstrate that he
has suffered an injury in fact. See Ward, 321 F.3d
at 1266. An injury-in-fact is “an invasion of a legally
protected interest which is (a) concrete and particularized
and (b) actual or imminent, not conjectural or
hypothetical.” Initiative & Referendum,
450 F.3d at 1087 (quoting Lujan, 504 U.S. at 560).
wrong in and of itself does not confer standing for
prospective relief, absent some “credible threat of
future injury.” Mink, 482 F.3d at 1253 (citing
Los Angeles v. Lyons, 461 U.S. 95, 108 (1983)).
“Absent a sufficient likelihood that he will again be
wronged in a similar way,” a past wrong against a
plaintiff does not entitle him to assert a claim for
prospective relief any more so than any other citizen.
Lyons, 461 U.S. at 111. A suit for prospective
relief in a First Amendment case requires a plaintiff to show
“a credible threat of prosecution or other consequences
flowing from the statute’s enforcement.”
Initiative & Referendum, 450 F.3d at 1088
(quoting D.L.S. v. Utah, 374 F.3d 971, 975 (10th
Cir. 2004)); Brady Campaign, 110 F. Supp. 3d at 1092
(“To establish standing for prospective injunctive
relief, ‘a plaintiff must be suffering a continuing
injury or be under a real and immediate threat of being
injured in the future.’” (quoting Tandy v.
City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004))).
chilling effect of a law can create a judicially cognizable
injury. Initiative & Referendum, 450
F.3d at 1088. But to qualify, the chilling must arise from an
objectively justified fear of consequences;
a subjective chill is not enough. Id. The Tenth
Circuit has explained how a plaintiff seeking prospective
relief based on a chilling effect can assert an injury that
is sufficiently concrete and particularized for Article III
purposes. Specifically, a plaintiff must show:
(1) evidence that in the past they have engaged in the type
of speech affected by the challenged government action; (2)
affidavits or testimony stating a present desire, though no
specific plans, to engage in such speech; and (3) a plausible
claim that they presently have no intention to do so
because of a credible threat that the statute will
be enforced. Though evidence of past activities obviously
cannot be an indispensable element-people have a right to
speak for the first time-such evidence lends concreteness and
specificity to the plaintiffs’ claims, and avoids the
danger that Article III requirements be reduced to the
formality of mouthing the right words.
Id. at 1089 (emphasis in original).
Supreme Court has also recently held that “the
threatened enforcement of a law creates an Article III
injury” where a plaintiff alleges “an intention
to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution
thereunder.” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt
v. United Farm Workers Nat’l Union, 442 U.S. 289,
cases establish that a plaintiff’s First Amendment
standing to seek prospective relief turns on a credible
threat of enforcement or objectively justified fear of future
consequences or prosecution. “When plaintiffs ‘do
not claim that they have ever been threatened with
prosecution, that a prosecution is likely, or even that a
prosecution is remotely possible,’ they do not allege a
dispute susceptible to resolution by a federal court.”
Babbitt, 442 U.S. at 299-300 (quoting Younger v.
Harris, 401 U.S. 37, 42 (1971)).
Driehaus, the Supreme Court outlined some
circumstances that amount to a credible threat of
enforcement. Driehaus, 573 U.S. at 159-61. Many
involved plaintiffs who had engaged in the precise conduct
targeted by the law in the past, stated an intent or desire
to continue doing so, and the circumstances suggested that
the threat of future prosecution was credible. See,
e.g., Steffel v. Thompson, 415 U.S. 452, 459
(1974) (finding that plaintiff’s concern for arrest was
not “chimerical” where he had been twice warned
to stop handbilling, warned he would be arrested, and his
companion had been arrested for the same conduct); Holder
v. Humanitarian Law Project, 561 U.S. 1, 15-16 (2010)
(finding justiciable case or controversy because plaintiffs
faced a credible threat of prosecution where they engaged in
the targeted action before, would undertake similar action,
and the government had prosecuted about 150 individuals for
similar conduct and would not disavow prosecution of
plaintiffs). The Supreme Court specifically noted that
“past enforcement against the same conduct is good
evidence that the threat of enforcement is not
‘chimerical.’” Driehaus, 573 U.S.
at 164 (quoting Steffel, 415 U.S. at 459).
Tenth Circuit has likewise stated that “evidence of
past activities . . . lends concreteness and specificity to
the plaintiffs’ claims.” Initiative &
Referendum, 450 F.3d at 1089; see also Wilson,
819 F.2d at 945-47 (finding appreciable threat of injury
flowing directly from statute prohibiting anonymous campaign
literature where the plaintiff had been arrested (but not yet
charged) for violating the challenged statute and wished to
continue his conduct); Ward, 321 F.3d at 1266-70
(finding that a plaintiff challenging hate-crimes statute
faced a credible threat of prosecution sufficient to confer
standing where he had previously been charged under the same
statute he was challenging).
contrast, courts generally find no standing where a plaintiff
has never been threatened with enforcement of a statute in
the past, or future prosecution has been disavowed in some
way. See D.L.S., 374 F.3d at 974 (finding no
objectively justifiable “chilling” based on
anti-sodomy statute where statute had never been applied to
the plaintiff or anyone else similarly situated, where
prosecutor said that he would not file charges for the
conduct the plaintiff sought to engage in, and similar
statutes had been declared unconstitutional by the Supreme
Court); PeTA, 298 F.3d at 1202-03 (finding no
chilling where the challenged statute was initially
misinterpreted as applying to the plaintiff’s conduct,
and thus there was no credible threat of future prosecution);
Faustin v. City & Cty. of Denver, 268 F.3d 942,
947-49 (10th Cir. 2001) (finding the plaintiff lacked
standing to seek prospective injunctive relief because there
was no real and immediate threat that she would be prosecuted
under the challenged statute in light of prosecutor’s
determination that her conduct did not violate the statute);
Phelps, 122 F.3d at 1327 (finding the plaintiffs
lacked standing to challenge a statute that had not been
applied against them, despite threats by prosecutor to
prosecute the plaintiffs generally and past prosecutions of
the plaintiffs under other statutes).
cases counsel that standing based on a claim of chilling
turns on whether there is a credible or objectively justified
fear of future enforcement, and that question is largely
dependent on whether there has been a past
enforcement of the same statue or provision for the
same conduct. With this guidance, the Court turns to
each of Plaintiffs’ claims to evaluate whether they
have adequately pleaded sufficient factual allegations to
establish standing at this stage of the case. See
Lujan, 504 U.S. at 561.