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McDonnell v. City and County of Denver

United States Court of Appeals, Tenth Circuit

January 4, 2018

NAZLI McDONNELL; ERIC VERLO, Plaintiffs - Appellees,
CITY AND COUNTY OF DENVER; ANTONIO LOPEZ, Denver Police Commander, in his official and individual capacities; VIRGINIA QUINONES, Denver Police Sergeant, in her official and individual capacities, Defendants-Appellants. AIRPORTS COUNCIL INTERNATIONAL - NORTH AMERICA, Amicus Curiae.


          Wendy J. Shea (Writer Mott and Kirsten J. Crawford with her on the briefs), Assistant City Attorneys, Denver, Colorado, for Appellants.

          Andrew McNulty (David A. Lane and Mari Newman with him on the brief), Killmer, Lane & Newman, LLP, Denver, Colorado, for Appellees.

          Timothy J. Filer, Foster Pepper PLLC, Seattle, Washington (Thomas R. Devine, General Counsel, Airports Council International-North America, Washington, DC; Adrian U. Winder and Adrienne G. McKelvey, Foster Pepper PLLC, Seattle, Washington, with him on the brief), for Amicus Curiae.

          Before MORITZ, KELLY, and MURPHY, Circuit Judges.

          MURPHY, Circuit Judge.

         I. Introduction

         Plaintiffs-Appellees, Nazli McDonnell and Eric Verlo, sought a preliminary injunction against Defendants, arguing policies and regulations governing protests and demonstrations at Denver International Airport ("DIA") violate their First and Fourteenth Amendment rights. The district court granted the injunction in part, concluding Plaintiffs made the necessary showing with respect to their claim that the challenged regulations are unreasonable because they do not contain a formal process for expediting permit applications in exigent circumstances. McDonnell v. City & Cty. of Denver, 238 F.Supp.3d 1279, 1299-1301 (D. Colo. 2017). The district court also enjoined Defendants from enforcing certain regulations governing the location of permitted protests and picketing restrictions, including the size of signage. Id. at 1301-02.

         Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse the grant of the preliminary injunction.

          II. Background

         DIA was established and is governed by the City and County of Denver Municipal Charter. (last visited Dec. 2, 2017). Relevant to the matter before this court, § 5-16(d) of the Denver Revised Municipal Code provides as follows:

The manager of aviation shall have the power and authority, and is hereby empowered and authorized, upon the basis of passenger flow or where necessitated by the peculiar character of Denver Municipal Airport System as an airport, to adopt rules and regulations pertaining to the exercise of First Amendment rights, including by way of example, but not by way of limitation, solicitation of contributions for charitable or religious purposes and the dissemination of printed material upon Denver Municipal Airport System. Such rules and regulations shall establish reasonable time, place and manner guidelines for the exercise of such First Amendment rights.

         The rules and regulations governing the management, operation, control, and use of DIA include Regulation 50, which regulates "all leafleting, display of signs, signature gathering, solicitations of funds and other speech related activity conducted at Denver International Airport for religious, charitable, or political purposes, or in connection with labor disputes." Denver Revised Mun. Code § 50.01. Regulation 50.03 prohibits any person or organization from engaging in speech-related activity at DIA for religious, charitable, or political purposes without first obtaining "a permit for such activity issued by the [Chief Executive Officer of Aviation] or his or her designee." Id. § 50.03; McDonnell, 238 F.Supp.3d at 1285-86. An application to obtain the required permit must be submitted "at least seven (7) days prior to the commencement of the activity for which the permit is sought." McDonnell, 238 F.Supp.3d at 1286 (quoting Denver Revised Mun. Code § 50.04-1).

         On January 28, 2017, an unpermitted protest was held at DIA in an interior area of Jeppesen Terminal colloquially known as the "Great Hall." Id. at 1287-88. The protest was in response to Executive Order 13769 which, inter alia, temporarily suspended entry into the United States of nationals from seven predominantly Muslim countries. Protecting the Nation From Foreign Terrorist Entry Into the United States, Exec. Order No. 13769 of January 27, 2017, 82 Fed. Reg. 8977 (Feb. 1, 2017). A second unpermitted protest, which was organized and attended by the Plaintiffs, was held in Jeppesen Terminal on January 29, 2017. McDonnell, 238 F.Supp.3d at 1289. The January 28th protest was allowed to continue without a permit but protestors were eventually moved from the Great Hall to an outdoor plaza. Id. at 1289. The January 29th protest took place near the international arrival area at the north end of the Great Hall and continued for several hours. Id. Although protestors on both days were warned they could be arrested for continuing to demonstrate without a permit, no arrests were made. Id. The district court's order contains a comprehensive description of both protests. Id. at 1287-89.

         On February 6, 2017, Plaintiffs filed a complaint in the United States District Court for the District of Colorado challenging the permitting process set out in Regulation 50. Plaintiffs alleged violations of their First and Fourteenth Amendment rights and sought, inter alia, compensatory damages, injunctive relief, and a declaration that Regulation 50 is unconstitutional on its face. On the same day, Plaintiffs filed a Motion for Preliminary Injunction, seeking "an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal." Plaintiffs asserted they were likely to succeed on the merits of their claim that Regulation 50 is a prior restraint that prohibits them from engaging in speech protected by the First Amendment. Arguing DIA is a public forum, they claimed Regulation 50 is facially unconstitutional because it is content-based and not narrowly tailored to serve a compelling government interest. Cf. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (holding "speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest"); cf. also Verlo v. Martinez, 820 F.3d 1113, 1129 (10th Cir. 2016) (discussing the three speech forums: the traditional public forum, the designated public forum, and the nonpublic forum). In the alternative, Plaintiffs argued they were likely to succeed on the merits of their claim even if DIA is determined to be a nonpublic forum because the restrictions on speech imposed by Regulation 50 are not reasonable. Cf. Cornelius, 473 U.S. at 800 ("Access to a nonpublic forum . . . can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker's view." (quotation and alteration omitted)). Plaintiffs' argument included an assertion the seven-day advance notice requirement for obtaining a permit is not a reasonable restriction on First Amendment rights. Plaintiffs' briefing did not include any argument on signage restrictions.

         The district court held a full-day hearing at which Plaintiffs and Defendants presented testimony. At the beginning of the hearing, the district court informed the parties it had determined DIA is a nonpublic forum and intended to apply a reasonableness standard to its analysis of Regulation 50. Plaintiffs and Defendants then presented the testimony of several individuals, including the Plaintiffs, a legal observer who attended the January 28th protest, the chief operating officer of DIA, the assistant director for terminal operations at DIA, and the law enforcement officer responsible for all police services at DIA. At the conclusion of the hearing, the district court asked Plaintiffs' counsel to state what Plaintiffs would include in the preliminary injunction if one was granted. In response, counsel stated:

I would enjoin defendants from . . . arresting people for engaging in behavior that the plaintiffs or people similarly situated are engaging in. I would enjoin 50.09 of Regulation 50 as being overbroad. And I ...

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