Verlo v. City and County of Denver

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 5, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ERIC VERLO; JANET MATZEN;
FULLY INFORMED JURY
ASSOCIATION,
Plaintiffs - Appellees,
v. No. 17-1291
(D.C. No. 1:15-CV-01775-WJM-MJW)
THE CITY AND COUNTY OF DENVER, (D. Colo.)
COLORADO, a municipality,
Defendant - Appellant,
and
CHIEF JUDGE MICHAEL MARTINEZ,
in his official capacity as Chief Judge of
the Second Judicial District; ROBERT C.
WHITE, in his official capacity as Denver
Chief of Police,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.
_________________________________
This is the second time this matter has come before this court. Our prior
ruling, Verlo v. Martinez (“Verlo I”), 820 F.3d 1113 (10th Cir. 2016), addressed
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
whether the district court had abused its discretion in entering a preliminary
injunction against the City and County of Denver, Colorado (collectively, “Denver”)
and the Second Judicial District. The preliminary injunction prohibited the
enforcement of an administrative order against Plaintiffs-Appellees Eric Verlo, Janet
Matzen, and the Fully Informed Jury Association (“FIJA”) in a designated part of a
courthouse plaza and thereby allowing Verlo and Matzen to engage in jury
nullification pamphleteering in that area.
In this appeal, Denver challenges the district court’s order finding Denver in
contempt for violating the court’s preliminary injunction. We exercise jurisdiction
under 28 U.S.C. § 1291 and REVERSE the district court’s contempt order against
Denver.
I
A. FIJA and FIJA Literature
Plaintiffs-Appellees Verlo and Matzen are FIJA members who “passionately
believe in the concept of jury nullification.” App., at 4. FIJA members “believe[ ]
that . . . each juror has the . . . ability to disregard unjust laws if they so desire,” a
freedom which “ha[s] been wrongfully stolen from the people by corrupt courts intent
on protecting tyrannical laws.” Id. at 6. FIJA members use pamphlets and other
literature “to inform . . . the public and prospective or current jurors” about their
belief “that a jury of one’s peers is a bulwark between the law and tyrannical
government.” Id. at 3. Plaintiffs-Appellees regularly handed out literature
2
containing this content to passersby near the Lindsey-Flanigan Courthouse, where
most of the criminal proceedings in Denver’s Second Judicial District take place.
B. The Plaza Order
With the hope of avoiding potentially violent protests in connection with
several high-profile cases scheduled for trial at the Lindsey-Flanigan Courthouse, the
Chief Judge of the Second Judicial District issued an administrative order (the “Plaza
Order”), which prohibited expressive activities in the area immediately surrounding
the Courthouse. The Plaza Order stated in part:
The Court has the responsibility and authority to ensure the safe
and orderly use of the facilities of the Second Judicial District; to
minimize activities which unreasonably disrupt, interrupt, or
interfere with the orderly and peaceful conduct of court business
in a neutral forum free of actual or perceived partiality, bias,
prejudice, or favoritism; to provide for the fair and orderly
conduct of hearings and trials; to promote the free flow of
pedestrian and vehicular traffic on sidewalks and streets; and to
maintain proper judicial decorum. Those having business with
the courts must be able to enter and exit the Lindsey-Flanigan
Courthouse freely, in a safe and orderly fashion and unhindered
by threats, confrontation, interference, or harassment.
Accordingly, the Court hereby prohibits certain expressive
activities on the grounds of the Courthouse . . . without regard to
the content of any particular message, idea, or form of speech.
Prohibited Activities: The activities listed below shall be
prohibited in the following areas: anywhere inside the Lindsey-
Flanigan, including courtrooms, corridors, hallways, and lobbies;
the areas, lawns, walkways, or roadways between the Courthouse
and public sidewalks and roads; and any areas, walkways, or
roadways that connect public sidewalks and roads to Courthouse
entrances or exits. This includes the Courthouse entrance plaza
areas on the east and west sides of the Courthouse . . .
1. Demonstrating; picketing; protesting; marching;
parading; holding vigils or religious services;
3
proselytizing or preaching; distributing literature or
other materials, or engaging in similar conduct that
involves the communication or expression of views or
grievances; soliciting sales or donations; or engaging in
any commercial activity; unless specifically authorized
in writing by administration. . . .
Id. at 133–34. Thus, the Plaza Order prohibited Plaintiffs-Appellees from
distributing their jury nullification literature near the Lindsey-Flanigan Courthouse.
C. FIJA Member’s Arrest, Plaintiffs-Appellees’ Ensuing Lawsuit, and the Injunction
Despite the Plaza Order’s ban on pamphleteering, Plaintiffs-Appellees
continued to distribute pamphlets regarding jury nullification to passersby near the
Lindsey-Flanigan Courthouse. Upon the arrest of a FIJA member, allegedly in part
for pamphleteering, Plaintiffs-Appellees filed this § 1983 action in the United States
District Court for the District of Colorado, suing: Denver; Robert C. White, in his
official capacity as Denver’s chief of police; and Chief Judge Michael Martinez, in
his official capacity as the Second Judicial District’s chief judge.
Plaintiffs-Appellees challenged a portion of paragraph one of the Plaza Order.
They sought a preliminary injunction “prohibiting the Defendants from arresting,
prosecuting and incarcerating the Plaintiffs if they are merely standing in the public
Plaza of the courthouse passing out literature and engaging in conversations with
passersby regarding jury nullification.” Id. at 7.
Denver did not oppose Plaintiffs-Appellees’ motion for a preliminary
injunction. In fact, one day before the district court held a hearing on the motion for
4
a preliminary injunction, Denver concluded the Plaza was a public forum and further
stipulated:
1. The Lindsey-Flanigan plaza (“Plaza”) . . . is a public forum
and any content-based regulations must be narrowly drawn
to effectuate a compelling state interest and reasonable
time, place and manner regulations.
2. Plaintiffs who wish to engage in peacefully passing out
jury nullification literature to passersby on the Plaza are
entitled to do so and . . . Denver, through its police or
sheriff department, will not arrest or otherwise charge
Plaintiffs for handing out literature regarding jury
nullification so long as Plaintiffs do not violate Colorado
law or Denver’s Revised Municipal Code when they are
handing out their literature. The parties stipulate that
Plaintiffs’ proposed intent of peacefully handing out jury
nullification literature to or discussing jury nullification
with passersby at the Plaza, without more, does not violate
Colorado law. Plaintiffs acknowledge that their right to
hand out literature regarding jury nullification is also
subject to compliance with any other applicable law. . . .
4. On August 14, 2014, Denver District Court Chief Judge
Michael Martinez entered an Order banning all speech
activities from the courthouse plaza and the areas
surrounding the courthouse. Denver stipulates that it does
not intend to enforce the August 14, 2015 Order as written
and will only impose content and viewpoint neutral
reasonable time, place and manner restrictions on the use
of the Plaza, and/or other exterior areas surrounding the
Plaza if Denver determines that a compelling need exists to
do so.
Id. at 117–18 (emphasis added). In summary, Denver stipulated that the restricted
area of the Plaza was a public forum and that it would not enforce the challenged
portion of paragraph one of the Plaza Order as it pertained to Plaintiffs-Appellees’
pamphleteering.
5
The Second Judicial District disagreed with Denver’s view that the restricted
area of the Plaza was a public forum and opposed Plaintiffs-Appellees’ preliminary
injunction motion. The Second Judicial District argued that the restricted area of the
Plaza was a nonpublic forum. This conflict presented a face-off between two parties
who had, and continue to have, interests in the restricted area of the Plaza. Denver
owns the land on which, by operation of state statute, the Lindsey-Flanigan
Courthouse sits, while the Second Judicial District, as the occupant of the
Courthouse, has an interest in limiting activities that may disrupt the operation of the
court.
Despite this dispute between the restricted area’s landowner and its occupant,
the district court did not resolve whether, as a matter of law, the restricted area was a
public or nonpublic forum. Instead, the district court “assumed that if Denver
designated the Courthouse Plaza as a public forum, then the Courthouse Plaza was
designated a public forum for all purposes and from all perspectives.” Id. at 756.
Relying on that assumption, the district court concluded the preliminary injunction
factors favored Plaintiffs-Appellees and granted their motion for a preliminary
injunction. The district court narrowly enjoined enforcement of the portion of
paragraph one of the Plaza Order banning Plaintiffs-Appellees and other FIJA
members from handing out jury nullification literature in the restricted area.
The preliminary injunction stated:
The City and County of Denver, its police chief, Robert C. White,
in his official capacity, and the Second Judicial District
(including their respective officers, agents, servants, employees,
6
attorneys, and other persons who are in active concert or
participation with any of them) (collectively, “Defendants”) are
PRELIMINARILY ENJOINED as follows (all capitalized terms
bear the respective meanings assigned above):
a. Save for any Plaintiff physically located on the
Landscaping or Gravel Area, Defendants shall not enforce
Paragraph 1 of the Plaza Order against any Plaintiff
(including any FIJA member) physically located in the
Restricted Area to the extent he or she is otherwise
lawfully seeking to distribute and/or orally advocate the
message contained in the pamphlets titled “Fresh Air for
Justice” and/or “Your Jury Rights: True or False?”
b. To the extent consistent with the foregoing prohibition,
Defendants remain free to enforce Paragraphs 2–4 of the
Plaza Order.
Id. at 152–53.
Under an abuse of discretion standard on interlocutory appeal, we affirmed the
district court’s entry of the preliminary injunction. Verlo I, 820 F.3d at 1147.
However, we noted the importance of the district court first determining the forum
status of the restricted area, stating, “[b]ecause the nature of the forum dictates the
standard of scrutiny with which restrictions on speech are reviewed, courts typically
begin the analysis of a challenge to restrictions on government property by
identifying the nature of the forum involved.” Id. at 1129. We then provided the
district court guidance on the forum status question, alerting the court that this issue
“will remain central to the district court’s permanent injunction analysis.” Id. at
1137.
In Verlo I, we also highlighted the fact that Denver and the Second Judicial
District disagreed regarding the forum status of the restricted area. We stated the
7
district court will have to grapple with “questions about the intersection between a
government property owner’s power to designate its property as a public forum and
the rights of the occupant of the government property—in this case another
government entity—to use that property without interference.” Id. at 1144. We
cautioned, although Denver and Plaintiffs-Appellees’ “Stipulation provides some
evidence on the question of whether the Restricted Areas have been designated as
public fora, it is not alone determinative.” Id. at 1147.
D. The District Court Dismisses Denver and Later Holds it in Contempt
By the time this case was before the district court for a ruling on a motion for
permanent injunction, the district court had dismissed Denver from the case for lack
of jurisdiction based on Denver’s stipulation and the resulting lack of controversy
between Denver and the Plaintiffs-Appellees. This later became problematic when
Denver changed its position regarding the restricted area’s status as a public forum
and aligned itself with the Second Judicial District by “de-designating” the restricted
area as a public forum. App., at 686. While it purported to de-designate the
restricted area as a public forum, Denver simultaneously asserted that it did not
intend to alter its previous stipulation that the restricted area was a public forum,
stating “the decision to de-designate is prospective only.” Id. Although the district
court expressed understandable confusion regarding Denver’s position, the court did
not reinstate Denver as a party nor did any party request that it do so.
Meanwhile, despite the operative preliminary injunction which permitted
Plaintiffs-Appellees to pamphleteer, Denver police arrested a FIJA member,
8
allegedly based in part on his distribution of jury nullification literature. As a result,
Plaintiffs-Appellees filed a motion for an order to show cause why Denver, now a
nonparty to the case, should not be held in contempt of court.
Before holding an evidentiary hearing on Plaintiffs-Appellees’ contempt
motion, the district court first held a hearing to determine whether it should convert
the preliminary injunction to a permanent injunction. The district court declined to
enter a permanent injunction, independently determined the Plaza’s restricted area
was not a public forum, and “dissolved” the preliminary injunction. Id. at 807. In its
order “dissolving” the preliminary injunction, the district court heeded our comments
set forth in Verlo I:
Denver’s choice not to withdraw from the Stipulation means that
the Courthouse Plaza remains a designated public forum as it
relates to Denver’s ability to impose restrictions on the property.
But it is manifest that Denver’s Stipulation does not bind the
Second Judicial District. And if the preliminary injunction
hearing had been framed in these terms, the result may have been
different—for, as the Court noted then,[1] courthouse grounds are
routinely deemed to be nonpublic fora. See Verlo I, 124 F. Supp.
3d at 1093 n.5. However, no party (nor the Court) raised the
question of whether “separate sovereigns” could each designate
the forum status of the same piece of property for their own
purposes, likely because it is truly a novel circumstance that none
of us had considered possible. Moreover, the Second Judicial
District argued solely under the strict scrutiny test. Thus, the
Court had no occasion to consider seriously the possibility that
the Courthouse Plaza was a nonpublic forum as it relates to the
Second Judicial District’s separate enforcement authority.
1
At the preliminary injunction hearing, the district court noted, “[a]bsent the
stipulation[,] we’d be dealing with a much different situation[ ] because our research
has indicated that the areas in front of courthouses, the cases have held, are not
public forums.” App., at 464.
9
Id. at 757–59 (second emphasis added).
Later that day, the district court also held Denver in contempt of court for
violating the preliminary injunction, entered final judgment in favor of the Second
Judicial District and against Plaintiffs-Appellees, and terminated the case. As a
contempt sanction, the district court ordered Denver to pay Plaintiffs-Appellees’
reasonable attorneys’ fees and expenses incurred in connection with the contempt
proceedings. The question presented in this appeal is whether Denver can be held in
contempt for violating the preliminary injunction.
II
We first conclude that we have jurisdiction under 28 U.S.C. § 1291 to review
the district court’s contempt order against Denver. Both Denver and Plaintiffs-
Appellees argue that the district court’s contempt order is final and appealable. In
support, however, both parties mistakenly cite to cases involving postjudgment
contempt proceedings. We have long held that “in the postjudgment stage of a case,
‘[o]nce the finding of contempt has been made and a sanction imposed, the order has
acquired all the ‘elements of operativeness and consequence necessary to be
possessed by any judicial order to enable it to have the status of a final decision’
under 28 U.S.C. § 1291.” O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d
1204, 1208 (10th Cir. 1992) (quotation omitted). Thus, we have jurisdiction to
review contempt orders entered postjudgment after the district court has completed
two steps: (1) “made a finding of contempt,” and (2) “imposed specific, unavoidable
10
sanctions.” Consumers Gas & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367, 370
(10th Cir. 1996). This rule has prudently been crafted to avoid piecemeal litigation.
However, Denver does not appeal from a postjudgment order. Rather, Denver
appeals the district court’s prejudgment contempt order. And, Denver brings this
appeal after the district court’s entry of final judgment in the case.2 As it relates to
the procedural posture of the present case, we have stated, “[g]enerally, ‘a party[3] to
a pending proceeding may not appeal from an order of civil contempt except as part
of an appeal from a final judgment.’” Id. at 370 (emphasis added); Fox v. Capital
Co., 299 U.S. 105, 107 (1936) (“[E]xcept in connection with an appeal from a final
judgment or decree, a party to a suit may not review upon appeal an order fining . . .
[it] for the commission of a civil contempt.” (emphasis added)).
We have consistently held that earlier interlocutory orders merge with the final
judgment. See McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir.
2002). It follows, then, that upon appeal from a final judgment, we may review the
district court’s prejudgment contempt orders which merge into the final judgment.
2
Denver’s notice of appeal following final judgment specifically named the
district court’s prejudgment contempt order, which appears in the docket entry
preceding final judgment and was entered the same day. App., at xix–xx, 41. We
thus have an appeal following entry of a final judgment seeking our review of the
contempt order which preceded it. See Bohn v. Park Cty. Grp., Inc., 94 F.3d 1457,
1460 (10th Cir. 1996) (holding we have jurisdiction to review issue on appeal where
plaintiff filed notice of appeal after district court entered final judgment and only
specified the order and issue plaintiff intended to pursue on appeal); Fed. R. App. P.
3(c)(1)(B) (requiring notice of appeal to “designate the judgment, order, or part
thereof being appealed”).
3
Denver is a nonparty to the proceedings at the district court. The effect of
this fact is discussed below.
11
See M&C Corp. v. Erwin Behr GMBH & Co., 289 F. App’x 927, 935 (6th Cir. 2008)
(unpublished) (“[A] judgment of civil contempt is not [itself] a final decree, and
therefore is not appealable in the absence of a final judgment. . . . This appeal
involves a final judgment, and . . . the policy of preventing piecemeal litigation is
served when final judgment exists because the concern that the appeal of the
contempt order represents an interlocutory order is not present. . . . [W]e have
jurisdiction in this case.”). Nevertheless, we have not detailed what specifics, if any,
must be present in a district court’s prejudgment contempt order to permit our review
of that order after appeal from final judgment, and whether they differ from the two-
step jurisdictional requirement for review of postjudgment contempt orders.
The Ninth Circuit has held, even when a final judgment has been entered, a
prejudgment civil contempt order is not appealable until the district court has
(1) made a finding of contempt and (2) imposed specific sanctions. See S.E.C. v.
Hickey, 322 F.3d 1123, 1127 (9th Cir. 2003) (“Even if the underlying action has
proceeded to a final judgment, ‘an adjudication of civil contempt is not appealable
until sanctions have been imposed.’” (quoting Donovan v. Mazzola, 761 F.2d 1411,
1417 (9th Cir. 1985)).4 Assuming, without deciding, that we apply the two-step
4
Our unpublished disposition in United States v. Gonzales, 531 F.3d 1198(10th Cir. 2008) (unpublished)—another postjudgment civil contempt case—cites to
Hickey, as well as cases from the Fifth, Seventh, and Eighth Circuits, for the
proposition that postjudgment civil contempt orders remain interlocutory until the
district court makes both a finding of contempt and imposes a sanction. See id. at
1202. However, our ruling in Gonzales does not discuss what implications, if any,
this postjudgment rule has on appeals from final judgment of prejudgment civil
contempt orders.
12
jurisdictional inquiry to prejudgment civil contempt orders appealed from final
judgment, this case satisfies both requirements.
We have a finding of contempt and the imposition of specific sanctions. The
district court found Denver in contempt for violating the preliminary injunction. The
district court also imposed a specific sanction against Denver. Denver must pay
Plaintiffs-Appellees’ “fees and expenses reasonably incurred in the course of the[ ]
contempt proceedings.” App., at 827. Moreover, that award has been reduced to a
sum certain.5 See D. Ct. Dkt. 209.6 The payment of $48,329.087 in Plaintiffs-
Appellees’ attorneys’ fees and expenses incurred in pursuit of their contempt claim
against Denver is a specific and unavoidable sanction, absent reversal of the district
court’s contempt finding. Therefore, even were we to impose the strictest
5
Postjudgment, we have not stated that we must await reduction of sanctions
to a sum certain; rather, we have only required that “specific, unavoidable sanctions”
be imposed. Farmland, 84 F.3d at 370.
6
Publicly-filed documents from the district court’s docket are relevant to the
resolution of this case, and we may take judicial notice of them. See Fed. R. Evid.
201; Allen v. Zavaras, 416 F. App’x 784, 785 n.2 (10th Cir. 2011) (unpublished).
7
To the extent that this appeal remained interlocutory prior to the district
court’s order reducing the contempt sanction to a sum certain, “when a district court
has adjudicated all remaining outstanding claims before this appellate court acts to
dismiss the appeal, we will consider the appeal on its merits rather than dismiss for
lack of jurisdiction.” Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir.
1988). In so holding, we have reasoned that the Supreme Court has urged a practical,
not technical, approach to finality under § 1291. See Gillespie v. United States Steel
Corp., 379 U.S. 148, 152 (1964). This approach should balance the harms of
piecemeal litigation with justice denied by delay of review. See id. In this case, we
do not expect a separate appeal of the fee award because Denver stipulated “Plaintiffs
are entitled to . . . $48,329.08 for the contempt proceeding.” D. Ct. Dkt. 208, at 2.
Thus, concerns associated with piecemeal litigation are not present here.
13
jurisdictional standards traditionally required for appeals of postjudgment civil
contempt orders, this case meets them.
Denver is also a nonparty to the proceedings at the district court, and “[t]he
right of a nonparty to appeal an adjudication of contempt cannot be questioned.”
U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76
(1988) (concluding an “order finding a nonparty witness in contempt is appealable
notwithstanding the absence of a final judgment in the underlying action”); see In re
Woosley, 855 F.2d 687, 688 (10th Cir. 1998) (“[A] nonparty may generally appeal an
order holding [it] in civil contempt. . . . [I]t is that status as a nonparty which entitles
[it] to perfect an appeal before a final judgment has been entered.” (quotation
omitted)).
Thus, we conclude we have jurisdiction to review the district court’s
prejudgment civil contempt order that Denver appealed after the entry of final
judgment. We now turn to the merits of this appeal.
III
Denver contends the district court lacked authority to hold it in civil contempt
for violating a preliminary injunction that the court had earlier “dissolved” because it
was held in contempt of an invalid order. 8 We agree with Denver and reverse the
district court’s contempt order.
8
Denver advances two additional arguments in support of its assertion that the
district court erred by holding it in contempt of court. Denver also claims the district
court erred by holding it in contempt for failing to “educate its officers” because that
was not an obligation specified in the injunction. App., at 826. And, Denver argues
14
“We review a district court’s determination of civil contempt for abuse of
discretion.” F.T.C. v. Kuykendall, 371 F.3d 745, 756 (10th Cir. 2004). “In doing so,
however, we review the district court’s conclusions of law de novo and any findings
of fact for clear error.” Reliance Ins. Co. v. Mast Constr. Co. (“Reliance I”), 84 F.3d
372, 375 (10th Cir. 1996). “Abuse of discretion is established if the district court’s
adjudication of the contempt proceedings is based upon an error of law or a clearly
erroneous finding of fact.” Id. at 375–76.
A civil contempt claim is unsupported when certain circumstances arise. “[A]
claim for civil contempt must fall if the order that was disobeyed is subsequently
reversed by the issuing court or the appellate court, or if its issuance exceeded the
power of the issuing court.” Id. at 376. That is, if “events prove [the injunction] was
erroneously issued,” United States v. United Mine Workers of America, 330 U.S.
258, 295 (1947), then any contempt order subsequently entered falls with the
injunction. Under other circumstances where an injunction terminates, a contempt
order may still stand. These circumstances include reasons unrelated to the merits of
the injunction, such as the “passage of time or mootness.” Reliance I, 84 F.3d at 376.
The logic of these rules is evident in that civil contempt sanctions are imposed
to compensate a wronged party for another’s disobedience of a court order. See
United Mine Workers, 330 U.S. at 303–04. If, however, the alleged wrongdoer
should not have been enjoined, then there is no basis for compensating the
the district court lacked clear and convincing evidence of its disobedience of the
injunction. Because we conclude Denver’s first argument prevails and warrants
reversal, we do not address Denver’s additional arguments.
15
injunction’s beneficiary. See Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 511
(10th Cir. 1968).
In this case, the district court stated it was “dissolving” the preliminary
injunction, App., at 809, which implies changed conditions rendered the injunction
no longer necessary. Such a ruling does not indicate legal or factual error in the
entry of the injunction in the first instance. Were this the case, the district court
would have had the power to hold Denver in contempt for violating an injunction that
was legally proper at a time when it was in full force, even if the injunction were
later “dissolved.” See United Mine Workers, 330 U.S. at 293–94 (“An injunction
duly issuing out of a court of general jurisdiction with equity powers, upon pleadings
properly invoking its action, and served upon persons made parties therein and within
the jurisdiction, must be obeyed by them. . . . [U]ntil its decision is reversed for error
by orderly review, either by itself or by a higher court, its orders based on its decision
are to be respected, and disobedience of them is contempt of its lawful authority, to
be punished.” (quoting Howat v. Kansas, 258 U.S. 181, 189–90 (1922))).
However, looking beyond the district court’s label for its action, the record
reveals that, at the permanent injunction stage of litigation, the district court
effectively reversed itself after concluding the preliminary injunction was issued in
error. See Brotherhood of Maint. of Way Emp. Div./IBT v. Union Pac. R. Co., 460
F.3d 1277, 1282 (10th Cir. 2006) (stating an injunction premised on an error of law
must be reversed). Once the legal merits of the status of the Plaza were more closely
16
examined, the district court determined that the preliminary injunction was based on
incorrect assumptions regarding the legal questions presented.
In ruling on the preliminary injunction, the district court did not decide
“whether Denver or the Second Judicial District sp[oke] for the First Amendment
status of the Courthouse Plaza.” App., at 750. Instead, the district court “assumed
that if Denver designated the Courthouse Plaza as a public forum, then the
Courthouse Plaza was designated a public forum for all purposes and from all
perspectives,” id. at 756, despite the fact that the Second Judicial District asserted the
restricted area was not a public forum. Based on the district court’s assumption, the
court concluded at the preliminary injunction stage that Plaintiffs-Appellees were
likely to succeed in proving that Denver controlled the First Amendment status of the
restricted area, and likely to succeed in proving the restricted area was a designated
public forum subject to strict scrutiny review. Then, the district court determined the
challenged portion of the first paragraph of the Plaza Order failed strict scrutiny
review and that the remaining preliminary injunction factors favored Plaintiffs-
Appellees. Thus, the district court enjoined the portion of the first paragraph of the
Plaza Order as it pertained to Plaintiffs-Appellees’ jury nullification advocacy.
By the time the district court was asked to address whether a permanent
injunction should issue, nothing of factual significance had changed since the
preliminary injunction hearing. This is true despite Denver’s now siding with the
Second Judicial District and its de-designation of the restricted area of the Plaza.
Although Denver purported to change its position and to de-designate the restricted
17
area as a public forum, Denver also asserted that it did not intend to alter its previous
stipulation presented at the preliminary injunction hearing, stating “the decision to
de-designate is prospective only.” Id. at 686. Thus, as regard the preliminary
injunction, Denver’s position had not changed. See id. at 757–58 (“Denver’s choice
not to withdraw from the Stipulation means that the Courthouse Plaza remains a
designated public forum as it relates to Denver’s ability to impose restrictions on the
property.” (emphasis omitted)).
Indeed, we agree with the district court’s determination that “all of the parties
remain[ed] in functionally the same position as they were during the preliminary
injunction proceedings.” Id. at 754. At the preliminary injunction stage of litigation,
Denver stipulated the restricted area of the Plaza was a public forum. Denver’s
stipulation did not bind the Second Judicial District, and the Second Judicial District
claimed the restricted area was a nonpublic forum. At the permanent injunction
stage, Denver continued to be bound by its stipulation, this stipulation still did not
bind the Second Judicial District, and the Second Judicial District again argued the
restricted area was a nonpublic forum.
Thus, what led to the district court’s “dissolution” of the preliminary
injunction was not a variation in the factual context of the case, but rather the district
court’s changed view of the role of Denver’s stipulation. When determining whether
a permanent injunction should issue, the district court did not assume that Denver’s
stipulation affected the Second Judicial District’s designation of the restricted area
and accept it as controlling. Instead, the district court concluded “that Denver’s
18
Stipulation does not bind the Second Judicial District.” Id. at 758. Rather, “[t]he
Courthouse Plaza is . . . governed by what may be deemed ‘separate sovereigns,”
where “Denver is the landowner, but the Second Judicial District is a tenant with
inherent authority to issue orders for preservation of security and decorum.” Id. at
757. Thus, at the permanent injunction stage, the district court ruled that both parties
had interests in the Plaza as well as the ability to designate its status.
The Second Judicial District and Plaintiffs-Appellees’ designation of the Plaza
continued to be diametrically opposed, with the Second Judicial District arguing the
restricted area was not a public forum and Plaintiffs-Appellees arguing that it was.
Traditionally, courthouse grounds have not been considered public fora, as this
category is typically reserved for public: (1) parks, (2) streets, and (3) sidewalks,
which we noted in Verlo I. See 820 F.3d at 1138; see also Frisby v. Schultz, 487
U.S. 474, 480–81 (1988). Relying on this and on its own analysis of precedent, the
district court held—independent of Denver’s stipulation—that the restricted area of
the Plaza was not a public forum. See App., at 804 (“[A]pparently every court to
address the issue has held that the grounds of a courthouse (apart from surrounding
public sidewalks) are not a traditional public forum.”). Based on this conclusion, the
court “dissolved” the preliminary injunction.
Also relevant is the fact that the district court itself has now twice all but
admitted that it erred in entering the preliminary injunction. In its order “dissolving”
the preliminary injunction, the district court noted, “if the preliminary injunction
hearing had been framed in these terms”—that Denver’s stipulation with Plaintiffs-
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Appellees did not bind the Second Judicial District—“the result might have been
different” because “courthouse grounds are routinely deemed to be nonpublic fora.”
Id. at 758. In its recent order granting in part and denying in part Plaintiffs-
Appellees’ fee motion, too, the district court noted that “it was probably incorrect at
the preliminary injunction phase to find that Plaintiffs were likely to succeed on the
merits in proving that Denver had the final say about the Courthouse Plaza, because
neither Denver nor the Second Judicial District has the final say. Each is a ‘separate
sovereign’ over the same territory.” D. Ct. Dkt. 203, at 9.
When ruling upon the motion for the preliminary injunction, the district court
did not determine the correct course of action after considering the views of two
different defendants with interests in the restricted area. Instead, the district court
entered the preliminary injunction based on an incorrect assumption. This scenario
fits United Mine Workers’ and Reliance I’s directive that “the right to . . . remedial
relief for violation of an injunction or temporary restraining order falls with an
injunction or temporary restraining order ‘which events prove was erroneously
issued.’” Reliance I, 84 F.3d at 376 (quoting United Mine Workers, 330 U.S. at 295)
(emphasis added). Therefore, Plaintiffs-Appellees’ right to remedial relief for
Denver’s alleged violation of the preliminary injunction evaporated with the
“dissolution”—or, more properly labeled, “reversal”—of the injunction. See Ager v.
Jane C. Stormont Hosp. and Training Sch. for Nurses, 622 F.2d 496, 500 (10th Cir.
1980) (“[T]he viability of the contempt citation depends upon the validity of the
underlying order.”).
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IV
We thus REVERSE the district court’s order finding Denver in contempt of its
previously issued preliminary injunction.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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