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Browne v. City of Grand Junction, Colorado

United States District Court, D. Colorado

September 30, 2015

DEBRA BROWNE, MARY JANE SANCHEZ, CYNTHIA STEWART, and HUMANISTS DOING GOOD, Plaintiffs, and GREENPEACE, INC., Plaintiff-Intervenor,
v.
CITY OF GRAND JUNCTION, COLORADO, Defendant

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          For Debra Browne, Mary Jane Sanchez, Cynthia Stewart, Steve Kilcrease, Humanists Doing Good, Greenpeace Inc, Plaintiffs: Rebecca Teitelbaum Wallace, Sara R. Neel, Mark Silverstein, American Civil Liberties Union-Denver, Denver, CO.

         For City of Grand Junction, Colorado, Defendant: Josh Adam Marks, Katherine M. L. Pratt, Berg Hill Greenleaf & Ruscitti, LLP, Boulder, CO.

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         ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND SUPPLEMENTAL COMPLAINT, AND DENYING DEFENDANT'S MOTION TO STAY THE COURT'S CONSIDERATION OF THE CROSS-MOTIONS FOR SUMMARY JUDGMENT

         CHRISTINE M. ARGUELLO, United States District Judge.

         This case involves a constitutional challenge to a municipal ordinance that regulates panhandling. Currently before the Court are cross-motions for summary judgment. Defendant City of Grand Junction (" Grand Junction" or " the City" ) filed its motion for summary judgment on February 17, 2015. (Doc. # 84.) That same day, Plaintiffs Debra Browne, Mary Jane Sanchez, Humanists Doing Good, and Eric Niederkruger[1] and Plaintiff-Intervenor Greenpeace, Inc. (collectively " Plaintiffs" ) filed their motion for summary judgment. (Doc. # 85.) Also before the Court is Plaintiffs' Motion for Leave to File a Second Supplemental Complaint, which was filed on November 21, 2014 (Doc. # 66), and Grand Junction's Motion to Stay the Court's Consideration of the Pending Cross-Motions for Summary Judgment for Sixty Days, which was filed on September 22, 2015 (Doc. # 110). For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion for Summary Judgement (Doc. # 85), GRANTS IN PART AND DENIES IN PART Grand Junction's Motion for Summary Judgment (Doc. # 84), DENIES Plaintiffs' Motion for Leave to File a Second Supplemental Complaint (Doc. # 66), and DENIES Grand Junction's Motion to Stay the Court's Consideration of the Pending Cross-Motions for Summary Judgment for Sixty Days (Doc. # 110).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Ordinance No. 4618

         On February 19, 2014, Grand Junction adopted Ordinance No. 4618, entitled " An Ordinance Prohibiting Activities Relating to Panhandling." (Doc. # 1-1.) Ordinance No. 4618 amended Title 9 of the Grand Junction Municipal Code to include a new Chapter 5, entitled " Prohibited Activities." Section 9.05.020 of Ordinance No. 4618, which set forth the defined terms, stated, " Panhandle / panhandling shall mean to knowingly approach, accost or stop another person in a public place and solicit that person, whether by spoken words, bodily gestures, written signs or other means, for money, employment or other thing of value." (Doc. # 1-1 at 2-3.) Section 9.05.040 of Ordinance No. 4618, entitled " General panhandling and solicitation," stated:

         It shall be unlawful for any person to panhandle

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(a) One-half (1/2) hour after sunset to one-half (1/2) hour before sunrise;
(b) If the person panhandling knowingly engages in conduct toward the person solicited that is intimidating, threatening, coercive or obscene and that causes the person solicited to reasonably fear for his or her safety;
(c) If the person panhandling directs fighting words to the person solicited that are likely to create an imminent breach of the peace;
(d) If the person panhandling knowingly touches or grabs the person solicited;
(e) If the person panhandling knowingly continues to request the person solicited for money or other thing of value after the person solicited has refused the panhandler's request;
(f) If the person panhandling knowingly solicits an at-risk person;
(g) In such a manner that the person panhandling obstructs a sidewalk, doorway, entryway, or other passage way in a public place used by pedestrians or obstructs the passage of the person solicited or requires the person solicited to take evasive action to avoid physical contact with the person panhandling or with any other person;
(h) Within one hundred (100) feet of an automatic teller machine or of a bus stop;
(i) On a public bus;
(j) In a parking garage, parking lot or other parking facility;
(k) When the person solicited is present within the patio or sidewalk serving area of a retail business establishment that serves food and/or drink, or waiting in line to enter a building, an event, a retail business establishment, or a theater;
(l) On or within one hundred (100) feet of any school or school grounds.

(Doc. # 1-1 at 3.)

         Ordinance No. 4618 also contained section 9.05.050, entitled " Panhandling and soliciting on or near public streets and highways," which stated:

It shall be unlawful for any person to panhandle or to solicit employment, business contributions or sales of any kind, or to collect money for the same, directly from the occupant of any vehicle traveling upon any public street or highway when:
(a) Such panhandling, solicitation or collection involves the person performing the activity to enter onto the traveled portion of a public street or highway to complete the transaction, including, without limitation, entering onto bike lanes, street gutters or vehicle parking areas; or
(b) The person performing the activity is located such that vehicles cannot move into a legal parking area to safely complete the transaction.
Notwithstanding the foregoing in this Section 9.05.050, it shall be unlawful for any person to panhandle or to solicit or attempt to solicit employment, business, or contributions of any kind directly from the occupant of any vehicle on any highway included in the interstate or state highway system, including any entrance to or exit from such highway.

(Doc. # 1-1 at 4.)

         Section 9.05.060, entitled " Enforcement and penalties," stated that " [v]iolation of any provision of this Chapter shall constitute a misdemeanor." (Doc. # 1-1 at 4.) Section 9.05.030 stated that Ordinance No. 4618 was to go into effect " thirty (30) days following publication." (Doc. # 1-1 at 3.) Ordinance No. 4618 was published on February 21, 2014,

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and, therefore, was to go into effect on March 23, 2014.

         B. Plaintiffs' Complaint and Plaintiff Stewart's Supplemental Complaint

         Before Ordinance No. 4618 went into effect, Plaintiffs Debra Browne, Mary Jane Sanchez, Cynthia Stewart, Steve Kilcrease[2] Humanists Doing Good, and Eric Niederkruger filed suit on March 18, 2014. (Doc. # 1.) The complaint states that Plaintiff Debra Browne, a resident of Palisade, Colorado, and Plaintiffs Mary Jane Sanchez and Cynthia Stewart, residents of Grand Junction, are " needy and engage[ ] in peaceful, nonthreatening solicitation in Grand Junction in a manner and in situations that violate the Ordinance." (Doc. # 1 at 3.) The complaint also states that Plaintiff Humanists Doing Good " is a non-profit corporation that carries out peaceful, nonthreatening fundraising activities in Grand Junction in a manner and in situations that violate the Ordinance." (Doc. # 1 at 3.) Plaintiffs explicitly state in their complaint that they challenge subsections (a), (e), (f), and (h) through (l) of section 9.05.030, and that they do not challenge subsections (b), (c), (d), and (g). (Doc. # 1 at 6.) Plaintiffs also challenge the final sentence of section 9.05.050, but they do not challenge subsections (a) and (b) of section 9.05.050. (Doc. # 1 at 6.)

         In their first claim for relief, Plaintiffs assert a facial challenge to the disputed subsections of section 9.05.050 of Ordinance No. 4618 on constitutional grounds, alleging that " [t]he challenged Ordinance unconstitutionally infringes or imminently threatens to infringe the freedom of Plaintiffs to fully exercise their First Amendment rights, including their rights of freedom of speech and freedom of expression, in violation of the First Amendment." (Doc. # 1 at 14.) In their fifth claim for relief[3] Plaintiffs allege that " [t]he Ordinance unconstitutionally infringes or imminently threatens to infringe the freedom of Plaintiffs to fully exercise their rights of freedom of speech and freedom of expression, in violation of Article II, Section 10 of the Colorado Constitution." (Doc. # 1 at 17.)

         In their second and sixth claims for relief, Plaintiffs allege that " [t]he Ordinance establishes classifications that discriminate against Plaintiffs Browne, Stewart, Sanchez, Kilcrease, and Humanists Doing Good solely on the basis of the content of the communications that they wish to direct to the public" and that " [t]he discrimination against Plaintiffs unconstitutionally burdens the exercise of fundamental rights," including " the rights of freedom of speech and expression as well as the fundamental right to liberty." (Doc. # 1 at 15, 18.) According to Plaintiffs, the classifications established by Ordinance No. 4618 deny them the equal protection of the laws, in violation of both the Fourteenth Amendment to the United States Constitution (second claim for relief) (Doc. # 1 at 15) and the equal protection component of Article II, Section 25 of the Colorado Constitution (sixth claim for relief) (Doc. # 1 at 18).

         In their third and seventh claims for relief, Plaintiffs allege that Ordinance No. 4618: (1) " fails to provide adequate notice that would enable the ordinary person to understand what conduct it prohibits" ; (2) " fails to establish adequate guidelines to govern law enforcement" ; and (3) " authorizes

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and encourages arbitrary and discriminatory enforcement." (Doc. # 1 at 16, 19) Thus, Plaintiffs assert, Ordinance No. 4618 is unconstitutionally vague, in violation of both the Fourteenth Amendment to the United States Constitution (third claim for relief) (Doc. # 1 at 16, 19) and the Due Process Clause of Article II, Section 25 of the Colorado Constitution (seventh claim for relief) (Doc. # 1 at 19).

         Plaintiffs seek a declaratory judgment holding that the challenged provisions of Ordinance No. 4618 violate both the United States Constitution and the Colorado Constitution. (Doc. # 1 at 20.) Plaintiffs also request injunctive relief prohibiting Grand Junction from enforcing the challenged provisions of Ordinance No. 4618. (Doc. # 1 at 20.)

         On August 11, 2014, Plaintiff Stewart filed an unopposed motion for leave to file a supplemental complaint (Doc. # 60), which the Court granted on August 19, 2014. (Doc. # 61.) In her supplemental complaint, Plaintiff Stewart " sets forth events that have transpired since the filing of the original Complaint in this action on March 18, 2014." (Doc. # 62 at 1.) According to Plaintiff Stewart, " [t]hese events support a claim for nominal damages," which she seeks in addition to all Plaintiffs' requests for declaratory and injunctive relief. (Doc. # 62 at 1.)

         C. Plaintiffs' Motion for Preliminary Injunctive Relief

         On March 19, 2014, Plaintiffs moved for a temporary restraining order and preliminary injunction. (Doc. # 6.) During a March 21, 2014 hearing on Plaintiffs' motion (Doc. # 16), United States District Judge Philip A. Brimmer[4] found that Plaintiffs lacked standing to challenge the provisions of section 9.05.040 because Plaintiffs, who did not allege in their complaint that they approach, accost, or stop anyone before soliciting them, do not engage in " panhandling" as defined in section 9.05.020 and, therefore, Plaintiffs did not have a credible fear of prosecution. (Doc. # 16 at 42.) However, Judge Brimmer did find that Plaintiffs had standing to challenge section 9.05.050 and that they were entitled to an injunction prohibiting Grand Junction from enforcing the last sentence of that section, which dealt with soliciting on public highways and highway exits. (Doc. # 16 at 53.) Judge Brimmer issued a written order that provided further analysis and support for his ruling from the bench. (Doc. # 15.)

         Immediately following the hearing, Plaintiffs filed an emergency motion for reconsideration of Judge Brimmer's order (Doc. # 10), which included a supplemental declaration from Plaintiff Stewart stating that " when [she] ask[s] people for money at the bus stop[, she] sometimes walk[s] up to and approach[es] the person in a non-aggressive way and ask[s] for the change that [she] need[s] to cover [her] bus fare." (Doc. # 10-1.) In a written order, Judge Brimmer denied Plaintiffs' emergency motion stating that the submission of Plaintiff Stewart's supplemental declaration " d[id] not provide a legitimate basis for reconsideration" because those facts were available for presentation at the time of the original argument. (Doc. # 14 at 4.)

         On March 27, 2014, the parties filed a joint motion to withdraw Plaintiffs' preliminary injunction motion because " [t]he parties . . . reached an agreement which obviates the need to hold a hearing or prepare briefing on the Plaintiffs' PI Motion." (Doc. # 21 at 2.) The Chief of Police of Grand Junction, John Camper (" Chief

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Camper" ), issued an order to the police officers under his command to " not enforce Ordinance No. 4618 pending resolution of the claims subject to litigation in this civil action." (Doc. # 21 at 2.) That same day, this Court granted the joint motion to withdraw Plaintiffs' motion for a preliminary injunction. (Doc. # 22.)

         On March 31, 2014, Greenpeace, Inc., moved for leave to intervene as a plaintiff in this action. (Doc. # 23.) Greenpeace is an " independent, fully member-driven non-profit organization" that uses canvass operations to provide financial support to the organization and educate the public about its work. (Doc. # 23 at 2.) Greenpeace's complaint in intervention echoes the same claims and requests for relief set forth in Plaintiffs' complaint. (Doc. # 23-2.)[5]

         D. Ordinance No. 4627

         On April 2, 2014, the Grand Junction City Council passed Ordinance No. 4627, entitled " An Emergency Ordinance to Amend Ordinance No. 4618 Regulating Panhandling Activities in Public Places." (Doc. # 25-4.) Ordinance No. 4627 amended the definition of " panhandle / panhandling" to include the phrase " without that person's consent" after " solicit that person," so that the amended definition reads:

Panhandle / panhandling shall mean to knowingly approach, accost or stop another person in a public place and solicit that person without that person's consent, whether by spoken words, bodily gestures, written signs or other means, for money, employment or other thing of value.

(Doc. # 25-4 at 4 (emphasis added to highlight the added language).) Ordinance No. 4627 also amended section 9.05.040, which sets forth the specific restrictions on panhandling. Ordinance No. 4627 differs from Ordinance No. 4618 in that it: (1) removed entirely the restriction on panhandling an " at-risk person" ; (2) reduced from 100 feet to 20 feet the area around an ATM or bus stop within which panhandling is prohibited; (3) narrowed the prohibition on panhandling to " public parking garages" specifically, as opposed to " parking garages" generally; and (4) removed entirely the prohibition on panhandling on or within 100 feet of any school or school grounds. (Doc. # 25-4 at 5.) Ordinance No. 4627 also removed the last sentence in section 9.05.050. (Doc. # 25-4 at 6.) Pursuant to section 9.05.030, Ordinance No. 4627 took effect " immediately upon passage" by the City Council. (Doc. # 25-4 at 5.) Grand Junction planned to begin enforcement of Ordinance No. 4627 on April 14, 2014.[6] (Doc. # 25-5 at 5.)

         E. Grand Junction's ...


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