Maldonado v. City and County of Denver, Colorado et al

Filing 44

ORDER granting in part and denying in part 12 Motion for Preliminary Injunction by Judge R. Brooke Jackson on 10/5/21.(jdyne, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 1:20-cv-03098-RBJ
JOSEPH MALDONADO,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, COLORADO and
EDWARD LEGER, individually and as Police Lieutenant with City and County of Denver
Police Department,
Defendants.

ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Joseph Maldonado wants to preach the gospel at Red Rocks park. Defendant,
the City and County of Denver (“Denver”), has a policy that prevents him from doing so in his
preferred locations. Maldonado seeks an order declaring Denver’s policy unconstitutional. In
the pending motion [ECF No. 12], he requests a preliminary injunction under Fed. R. Civ. P.
65(a) against Denver and its agents enjoining them from enforcing the policy. For the following
reasons, the motion is DENIED IN PART and GRANTED IN PART.
I.

FACTUAL BACKGROUND

A. Red Rocks
Red Rocks Amphitheatre (the “Amphitheatre”) is a world-renowned open-air
amphitheater situated between giant sandstone outcroppings west of Denver. It is used as a
venue for individuals, entities, and organizations to rent for special events such as musical
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concerts, performances, weddings, graduations, and exercise classes. Denver’s Division of Arts
and Venues operates and manages the Amphitheater.
The Amphitheater sits within Red Rocks Park, a free mountain park owned by Denver
that covers 868 acres on the eastern slope of the Rocky Mountains. The Amphitheater is the
“showpiece” of the park. This lawsuit concerns three areas of Red Rocks Park: the Top Circle
Lot, the Upper North Lot, and the Staircase connecting the two lots. Those places are
highlighted on the map of Red Rocks Park below:

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Since 1998, Arts and Venues has had a policy prohibiting public forum activities at its
portfolio of assembly facilities, which include the Amphitheatre, its Visitor Center and other
Denver arts venues such as the Denver Performing Arts Complex (“DPAC”) and the Denver
Coliseum (the ”Policy”). The current version of the Policy was formalized in 2007 into a written
Policy Statement. It declares that “[t]he City's public assembly facilities, including without
limitation any associated parking lots, parking garages and outdoor assembly areas adjacent to
the facilities, are reserved for the exclusive use of tenants and their invitees, and therefore the
City's public assembly facilities are not public forums for expressive activities by members of
the general public.” ECF No. 16-2 at p.1. The Policy gives examples of “expressive activity”
which include “demonstrations, picketing, leafleting, etc.” Id. at p.2.
However, because Denver “recognizes and respects the need for areas for public
expression adjacent to its public assembly facilities,” it has designated five areas in Red Rocks
Park as public fora open to all expressive activities. Id. The below map shows these areas:

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The reason for the present case is that the five designated areas are not in areas of
pedestrian traffic. Plaintiff states that his preaching goes unheard if he can only preach to cars
driving by, typically with the windows shut and the drivers, at least, paying attention to the road
and looking for entryways and parking areas. Essentially, plaintiff argues that Denver has
acknowledged his right to preach but then has effectively retracted that acknowledgement by
restricting him to places where no one can listen.
B. The Plaintiff
Plaintiff in this case is a Colorado resident and devout Christian. He regularly
evangelizes by handing out literature with a Christian message, preaching, displaying signs, and
engaging individuals in one-on-one conversations. He wants to share his message on the
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sidewalks abutting the Top Circle Lot and the Upper North Lot before and during ticketed events
at the Amphitheater. At those times, the two lots are full of eventgoers. Plaintiff has
evangelized at these locations on a few occasions without incident.
On April 18, 2019, plaintiff and his companions were proselytizing on the sidewalk
encircling the Top Circle Lot where attendees of a Snoop Dogg concert were waiting in line for
security. Red Rocks Park staff and a Denver police officer told Maldonado and his friends to
leave, citing Denver’s Policy. After a back-and-forth, Maldonado left rather than risk a
trespassing charge. He challenged Denver’s Policy to city officials, but the City Attorney’s
office sent him a letter claiming the Policy is constitutional. Maldonado decided not to return to
Red Rocks Park while the Policy remains in force for fear of criminal sanction. He brought this
lawsuit seeking a preliminary injunction to prevent Denver from enforcing its Policy in Red
Rocks Park.
II.

LEGAL ANALYSIS

At oral argument Denver clarified that it did not oppose a preliminary injunction for the
majority of Red Rocks Park. It only defends Denver’s Policy as applied to three places: the Top
Circle Lot, the Upper North Lot, and the staircase connecting the two lots. I therefore grant the
preliminary injunction for the remainder of Red Rocks Park, excluding these three locations and
the Amphitheater. I next analyze the parties’ arguments concerning a preliminary injunction for
the Top Circle Lot, Upper North Lot, and staircase connecting the two lots.
To obtain a preliminary injunction, plaintiff must demonstrate: “(1) a likelihood of
success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the
injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the

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preliminary injunction is in the public interest.” Republican Party of N.M. v. King, 741 F.3d
1089, 1092 (10th Cir.2013).
C. Likelihood of Success on the Merits
This Court applies a three-step inquiry to decide whether the government violated a
plaintiff’s First Amendment rights. Verlo v. Martinez, 820 F.3d 1113, 1128 (10th Cir. 2016).
Plaintiff must first establish that his activities were protected by the First Amendment. Id. If
they were, I must “identify whether the challenged restrictions impact a public or nonpublic
forum, because that determination dictates the extent to which the government can restrict First
Amendment activities within the forum.” Id. Finally, I apply the requisite standard of review to
the government’s proffered justification for prohibiting plaintiff’s speech. Id.
Plaintiff has established that his activities were protected by the First Amendment. As
both the Supreme Court and the Tenth Circuit recently confirmed, “pamphleteering and one-onone communications are First-Amendment-protected activities.” Id. In fact, “[n]o form of
speech is entitled to greater constitutional protection.” McIntyre v. Ohio Elections Comm'n, 514
U. S. 334, 347 (1995). Maldonado seeks to hand out literature, engage individuals in one-on-one
conversations, preach, and hold signs. These activities are protected by the First Amendment.
Next, I must determine whether each of the three relevant locations is a traditional public
forum, designated public forum, or nonpublic forum and apply the appropriate level of scrutiny
to the government’s proffered justifications for restricting plaintiff’s speech. This analysis
differs for each location. See Verlo, 820 F.3d at 1129.
1. The Top Circle Lot
Because plaintiff seeks to evangelize during ticketed events at the Amphitheater, the
relevant forum to be analyzed is “the Top Circle Lot during ticketed events.” See Eagon v. City
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of Elk City, Okl., 72 F.3d 1480, 1485 (10th Cir. 1996) (affirming a district court decision that
analyzed whether “Ackley park during the ‘Christmas in the Park’ event is a public forum”);
McMahon v. City of Panama City Beach, 180 F. Supp. 3d 1076, 1094 (N.D. Fla. 2016) (“[T]he
relevant forum is the limited portion of the Frank Brown Park Festival Site at which and during
the time that Thunder Beach [an event] is held.”).
Plaintiff argues that the Top Circle Lot is presumptively a public forum because it is part
of Red Rocks Park. They cite Eagon v. City of Elk City, Okl., a Tenth Circuit case holding that
“city parks are quintessential public forums.” 72 F.3d at 1486 (internal quotations omitted); see
ECF No. 12 at p.7. Defendant responds that the title “park” is not dispositive. Instead,
defendant asks this Court to ask whether a place “ha[s] immemorially been held in trust for the
use of the public and, time out of mind, ha[s] been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307
U.S. 496, 515 (1939). They argue that the areas immediately surrounding the Amphitheater have
historically been used as a venue rented out to paying patrons. ECF No. 16 at p.6–7.
Defendant’s arguments about the history of Red Rocks Park are unpersuasive. The
relevant historical inquiry is whether the type of place at issue has historically been used as a
place of public assembly and debate, not whether there is in-fact a long history of a particular
place being used for such gatherings. A newly created lawn/park in front of a state capitol
building would not avoid being designated a traditional public forum because it has no history of

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actual assembly. Defendants do not contest that Red Rocks Park is the type of park used for
public assembly, so I accept that premise. 1
However, this does not end the inquiry. The government may close a public forum by,
for example, changing its physical characteristics or principal use. Hawkins v. City & Cty. of
Denver, 170 F.3d 1281, 1287 (10th Cir. 1999); see also Int’l Soc'y for Krishna Consciousness,
Inc. v. Lee, 505 U.S. 672, 677 (1992) (Kennedy, J., concurring) (“In some sense the government
always retains authority to close a public forum, by selling the property, changing its physical
character, or changing its principal use. Otherwise, the State would be prohibited from closing a
park, or eliminating a street or sidewalk.”). I find that the Top Circle Lot during ticketed events
was closed and is not a public forum.
In Hawkins v. City and County of Denver, the Tenth Circuit held that Denver’s public
assembly facility free speech policy — the same Policy at issue in this case — did not violate
musicians’ First Amendment rights when it prevented them from distributing leaflets in the
DPAC Galleria. 170 F.3d at 1284. The Galleria was “an open air, glass-covered pedestrian
walkway” that was “formerly a public street.” Id. at 1284. The court found that that the Galleria
was not a traditional public forum because it “[did] not form part of Denver's automotive, bicycle

1

At oral argument, defendant alluded to a claim that Red Rocks Park is not a traditional public forum
because it is used for hiking and enjoying the natural environment. Defendant cited Boardley v. U.S.
Dep't of Interior, 615 F.3d 508 (D.C. Cir. 2010), a D.C. Circuit case indicating that “many national parks
include areas — even large areas, such as a vast wilderness preserve — which never have been dedicated
to free expression and public assembly, would be clearly incompatible with such use, and would therefore
be classified as nonpublic forums.” Id. at 515. Defendant suggested that Red Rocks Park may be more
akin to a wilderness area incompatible with public assembly than a municipal park like Civic Center Park
across from the Colorado State Capitol. The Boardley court, however, made clear that the nature of a
park “is a fact-intensive question which cannot be answered in the absence of evidentiary submissions.”
Id. Defendant did not put sufficient facts in the record for me to decide today whether Red Rocks Park is
more wilderness than civic center. Therefore, I accept for now the parties’ assumption that Red Rocks
Park is the type of park that could be used for public assembly and debate.

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or pedestrian transportation grid,” and because it was not used “as a throughway to another
destination.” Id. at 1287. Instead, its function was “simply to permit ingress to and egress from
the DPAC.” Id.
Hawkins contrasts with a Supreme Court case, United States v. Grace, 461 U.S. 171
(1983), in which the Court ruled that sidewalks surrounding the Supreme Court building in
Washington, D.C. were a public forum. Id. at 178–79. The Court emphasized an absence of any
differentiation from normal sidewalks. It found that while the government had the power to
make sidewalks nonpublic forums, in this case the sidewalks contained “no separation, no fence,
and no indication whatsoever to persons stepping from the street to the curb and sidewalks that
serve as the perimeter of the Court grounds that they have entered some special type of enclave.”
Id. at 180.
The Top Circle Lot during ticketed events is like the Galleria in Hawkins and unlike the
sidewalk in Grace. It is not a “thoroughfare” or central part of the transportation grid. See
Hawkins, 170 F.3d at 1287. Its sole purpose is permitting ingress and egress to the
Amphitheater’s ticketed events — it is a drop-off point for busses, a lot for valet parking, a
pedestrian gathering area for security screening lines, a parking area for individuals with
disabilities, and an access point for medical and emergency services. And unlike the sidewalks
in Grace, the Top Circle Lot during ticketed events is physically marked off. A sign at the
entrance clearly indicates that the lot is for handicapped accessible parking only.
Nor does the Top Circle Lot during ticketed events fit the description of a designated
public forum. A designated public forum is government property that, although not a traditional
public forum, is “intentionally opened up for that purpose.” Verlo, 820 F.3d at 1141 (quoting
Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009)). To create a designated public
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forum, “the government must make an affirmative choice to open up its property for use as a
public forum.” Id. (quoting United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 206 (2003)).
“[A] regulation prohibiting disruption, and a practice of allowing some speech activities on [a
government] property do not add up to the dedication of [such] property to speech activities.”
United States v. Kokinda, 497 US 720, 730 (1990).
I see no “affirmative choice” by Denver to open the Top Circle Lot as a public forum
during ticketed events. To the contrary, Denver affirmatively closes the Top Circle Lot to all but
invited guests during ticketed events. The fact that Denver may have occasionally permitted
plaintiff to leaflet does not mean that the city has dedicated the Top Circle Lot during ticketed
events for that use. See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802
(1985) (“The government does not create a public forum by inaction or by permitting limited
discourse, but only by intentionally opening a nontraditional forum for public discourse.”).
Because the Top Circle Lot during ticketed events does not constitute a public forum
either by tradition or by designation, it is a nonpublic forum. To pass muster, then, Denver’s
policy as applied to the forum need only be viewpoint-neutral and reasonable in light of the
forum’s purpose.
Plaintiff has not shown a substantial likelihood that Denver applied its policy to plaintiff
on the basis of his viewpoint. Plaintiff’s motion asserts without factual analysis that Denver’s
enforcement “appears to turn on the content of the expression.” ECF No. 12 at p.13. Plaintiff
clarified his position at oral argument: he argued that Denver confronted only Mr. Maldonado,
who was preaching a religious message, and not those chit-chatting while waiting in line or
tailgating before the concert. This argument borders on frivolous. Tailgaters and line-standers,
who presumably hold tickets to the event, are “invitees” within the meaning of Denver’s policy
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and not subject to the ban on expressive activities. See ECF No. 16-2 at p.1 (The City’s public
assemblies, including without limitation any associated parking lots, . . . are reserved for the
exclusive use of tenants and their invitees, and . . . are not public forums for expressive activities
by members of the general public.”). 2 Denver’s Policy is viewpoint-neutral.
Denver’s refusal to allow plaintiff to proselytize in the Top Circle Lot during ticketed
events is also reasonable. The record shows that, during ticketed events, the Top Circle Lot is
used as a drop-off spot, a handicapped-accessible parking lot, an area for eventgoers to wait in
line for security and ticketing, and an access point for medical and emergency services.
Defendant presented evidence about the logistical difficulties and dangers associated with
moving tens of thousands of pedestrians in and out of an alpine amphitheater. Plaintiff wishes to
preach, distribute leaflets, and engage individuals in one-on-one conversations. Although
plaintiff’s activities have not yet caused disruption, “the Government need not wait until havoc is
wreaked to restrict access to a nonpublic forum.” Hawkins, 170 F.3d at 1290 (quoting Cornelius,
473 U.S. at 810). The Tenth Circuit has found that activities like leafletting can disrupt the flow
of pedestrian traffic in a number of ways. Id. at 1291. Leafleteers standing in walkways could
disrupt traffic. Id. Patrons wishing to avoid evangelizers could change their route. Id. Patrons
might further obstruct traffic flow by stopping to engage individuals like plaintiff. Id. This last
concern is particularly acute in this case where, as plaintiff testified, his preaching not
infrequently results in combative or even violent altercations with passersby. The risk of

2

A cursory reading of the policy also undermines plaintiff’s other due process claim. The policy is not
unconstitutionally vague, as plaintiff asserts. See ECF No. 16 at p.12–13. The policy specifically
indicates that impermissible “expressive activities,” which it also calls “public forum activities,” include
“demonstrations, picketing, leafleting, etc.” ECF No. 16-2 at p.2. Ordinary people reading this policy
can understand which conduct is prohibited. See Dias v. City and Cnty. of Denver, 567 F.3d 1169, 1179
(10th Cir. 2009).

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congestion presents efficiency and safety concerns, especially as the Top Circle Lot is the access
point for medical and emergency services. Denver’s enforcement of its policy is reasonable.
Because the Top Circle Lot during ticketed events is a nonpublic forum and Denver’s
enforcement of its Policy there is viewpoint-neutral and reasonable, plaintiff has not shown a
substantial likelihood of success on the merits for this area. I deny plaintiff’s motion for a
preliminary injunction as it relates to the Top Circle Lot.
2. Staircase Between Upper North Lot and Top Circle Lot
I find that the staircase (meaning the stairs themselves and surrounding property where
plaintiff could preach to people climbing the stairs) during ticketed events is a nonpublic forum.
Staircases have not “immemorially been held in trust for the use of the public and . . . used for
purposes of assembly, communicating thoughts between citizens, and discussing public
questions.” Hague, 307 U.S. at 515. Moreover, the sole purpose of this staircase is to provide
access to the Top Circle Lot and the Amphitheater.
In United States v. Kokinda, the Supreme Court held that a sidewalk leading to a post
office was a nonpublic forum. 497 U.S. at 730. The Court found that the sidewalk was not a
“thoroughfare. Rather, it [led] only from the parking area to the front door of the post office . . .
[and] was constructed solely to provide for the passage of individuals engaged in postal
business.” Id. at 727.
Here, the staircase in question shares relevant characteristics with the Kokinda postal
sidewalk. It is not a thoroughfare. It leads only from a parking area to the Top Circle Lot and
the Amphitheater, two nonpublic fora. Its sole purpose during ticketed events is to provide for
the passage of individuals to these nonpublic fora. It is a nonpublic forum.

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Denver’s policy as applied to plaintiff on the staircase is viewpoint-neutral for the
reasons described above.
Denver’s policy is also reasonable for substantially similar reasons. Although Denver’s
concerns about medical and handicapped accessibility do not apply to the staircase, its concerns
about not impeding pedestrian flow are amplified on a staircase where obstruction could lead to
stumbles, and stumbles could lead to dangerous falls.
3. Upper North Lot
Patrons leaving the Upper North Lot can either walk to the staircase leading to the Top
Circle Lot and security check point or take one of two paths leading west from the Upper North
Lot to a different parking lot or entry way. When I refer to the Upper North Lot, I mean the
sidewalks and areas adjacent to the lot through which pedestrian traffic flows, including the
beginning of the westward paths.
Based on the record before me, I find that the Upper North Lot, so defined, is probably a
traditional public forum even during ticketed events. I again begin from the presumption that
Red Rocks Park is the type of park traditionally used for assembly and public debate. But see
supra p.9, n.1. Denver does not close the Upper North Lot to the general public during ticketed
events. The Upper North Lot, unlike the Top Circle Lot, does not have a sign indicating that it
may only be used for event parking. Nor is it closed to pedestrians other than event patrons — a
walking trail terminating at the lot remains open before and during ticketed events (while the
park is open). The Upper North Lot contains “no separation, no fence, and no indication
whatever to persons” entering the lot “that they have entered some special type of enclave.”
Grace, 461 U.S. at 180.

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Therefore, I turn to whether the restriction prohibiting expressive activities at this
location are content-based or content-neutral. Content-based speech restrictions “must satisfy
strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government
interest.” Verlo, 820 F.3d at 1134 (quoting Pleasant Grove City, Utah v. Summum, 555 U.S.
460, 469 (2009)). Content-neutral restrictions are permissible if they “(a) serve a significant
government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample
alternative channels of communication.” Id. Both type of restrictions require a compelling
government interest. Denver’s policy is content-neutral for the same reasons it is viewpointneutral.
Finally, there is no evidence in the record of a compelling government interest in
prohibiting expressive activities in this location, the vicinity of the Upper North Lot, so long as it
does not occur near the staircase leading to the Top Circle Lot. Denver’s only articulated interest
regarding the Upper North Lot was the efficient movement of pedestrians in and out of the
Amphitheater. If Denver defends its Policy “as a means to redress past harms or prevent
anticipated harms,” it must “demonstrate that the recited harms are real, not merely conjectural,
and that the regulation will in fact alleviate these harms in a direct and material way.” Turner
Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994). It has not done so here. It did not present
testimony about the Upper North Lot’s role in ingress to and egress from the amphitheater,
unlike its testimony regarding the Top Circle Lot’s importance as a staging area for security,
entrance for disabled individuals, and access point for emergency services. Nor has Denver
shown that permitting evangelizing would impede pedestrian flow into the Amphitheater in a
way that its current policy, which permits general access to the lot for non-eventgoers, does not.
Absent a more thorough explanation of the government’s interest in the Upper North Lot, I find
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it unlikely that there is an existence of a compelling government interest in preventing
evangelizing in this lot.
I therefore find that plaintiff is likely to succeed on the merits of his First Amendment
claim as it pertains to the Upper North Lot unless evidence presented at the permanent injunction
hearing indicates that Red Rocks Park is not a traditional public form or that Denver has a
compelling governmental interest in prohibiting plaintiff’s activities at the Upper North Lot.
D. Irreparable Harm
Defendant agrees that plaintiff has shown irreparable harm if he establishes a likelihood
of success on his First Amendment claim. See ECF No. 16 at p.13–14. Because I believe
plaintiff has carried this burden as it applied to the Upper North Lot, I find that plaintiff has
established irreparable harm. See Verlo, 820 F.3d at 1127 (“The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))).
E. Balance of Equities
This factor weighs in plaintiff’s favor. Plaintiff testified that without access to the Upper
North Lot he would be unable to convey his message to a sufficiently large audience. The five
areas that Denver has designated for expressive activities are not located in places where there is
much, if any, pedestrian traffic during Amphitheatre events. Denver claims “a strong interest in
preserving the Amphitheatre and its immediate surrounding areas for their intended use as a
revenue-generating arts venue and ensuring that patrons have safe and efficient ingress and
egress to the Amphitheatre during events.” ECF No. 16 at p.14. But Denver has not shown that
plaintiff’s activity would impair Denver’s ability to use the Amphitheater as a revenuegenerating arts venue, nor has it shown any safety concerns with plaintiff’s activities in the
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Upper North Lot. Denver’s only concern supported by the record is efficiency. I find that the
equities prefer vindicating constitutional rights over maximizing efficiency.
F. Public Interest
I assume that many, perhaps most, people who buy tickets for an event at the
Amphitheatre are not particularly interested in being proselytized to by Mr. Maldonado or
anyone else as they leave their cars and walk toward the event. But that practical reality does not
trump the constitutional issue. Denver has not offered any alternative location where the
plaintiff could share his message with pedestrians. Therefore, assuming that the Upper North
Lot is a traditional public forum, there is a substantial likelihood that applying Denver’s current
policy to that location would impair plaintiff’s constitutional rights. Therefore, I find that the
public interest would be furthered by this preliminary injunction. See Pac. Frontier v. Pleasant
Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is
clearly in the public interest.”).
III.

ORDER

The Plaintiff’s motion for a preliminary injunction, ECF No. 12, is granted in part and
denied in part as follows:
1. A preliminary injunction is DENIED as to the Top Circle Lot and the staircase
connecting the Top Circle Lot to the Upper North Lot.
2. A preliminary injunction is GRANTED as to the location near the Upper North Lot
described in this order. Until the matter is finally addressed and resolved at a
permanent injunction hearing, plaintiff may engage in his expressive activities in that
location.

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3. The unopposed request for a preliminary injunction is GRANTED for the remainder
of Red Rocks Park.
Dated this 5th day of October, 2021.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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