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Cole v. Goossen

United States District Court, D. Kansas

August 30, 2019

JONATHAN T. COLE, et al., Plaintiffs,
DUANE GOOSSEN, et al., Defendants.



         Plaintiffs 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.

         Because 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.

         I. BACKGROUND

         A. Plaintiffs’ March 27, 2019 Protest

         On 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.[1] Plaintiffs hung the cloth banners from balconies on the 5th floor overlooking the Statehouse rotunda. Tr. at 25:11-12.[2] 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.

         Within 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. at 11.

         The 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.

         B. Regulations and Statehouse Policies

         After 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.

         Article 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.”[3] 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 secretary’s designee.”

         The Kansas Department of Administration has issued a “Policy for Usage of the Statehouse and Capitol Complex,” effective January 2018. Doc. 14-2.[4] 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. Id.

         The 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 3.h.xxii.)

         C. Kansas Poor People’s Campaign June 18, 2018 Incident

         The 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 9-10.

         D. Plaintiffs’ Lawsuit

         Plaintiffs 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.

         Plaintiffs 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.

         Upon filing their original complaint, Plaintiffs immediately moved for a preliminary injunction. Doc. 2.[5] 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 usage policy.

Doc. 3 at 28-29. The Court held an evidentiary hearing on the preliminary-injunction motion on June 19, 2019.[6]

         At the 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.

         II. ANALYSIS

         A. Motion to Dismiss

         1. At the pleading stage, the Court analyzes standing based on the well- pleaded allegations of the operative complaint.

         Before 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. 2006)).

         Article 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)).

         The 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))).[7] But a court need not accept “conclusory allegations, unwarranted inferences, or legal conclusions.” Brady Campaign, 110 F. Supp. 3d at 1092.

         2. Standing to seek prospective relief based on a claim of First Amendment chilling requires a credible threat of enforcement.

         At the 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 Cir. 2002))).

         As 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).

         A past 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))).

         The 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).

         The 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, 298 (1979)).[8]

         These 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.[9] “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)).

         In 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).

         The 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).

         By 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).

         These 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.

         a. ...

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