Browne v. City of Grand Junction

85 F. Supp. 3d 1249, 2015 U.S. Dist. LEXIS 42210, 2015 WL 1509775
CourtDistrict Court, D. Colorado
DecidedMarch 30, 2015
DocketCivil Action No. 14-cv-00809-CMA-KLM
StatusPublished
Cited by2 cases

This text of 85 F. Supp. 3d 1249 (Browne v. City of Grand Junction) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Browne v. City of Grand Junction, 85 F. Supp. 3d 1249, 2015 U.S. Dist. LEXIS 42210, 2015 WL 1509775 (D. Colo. 2015).

Opinion

ORDER

CHRISTINE M. ARGUELLO, United States District Judge

Throughout the country, cities and municipalities are passing ordinances to limit panhandling and begging. In response, [1251]*1251citizens and organizations are challenging those measures as abridging their First Amendment rights to Freedom of Speech and Expression. This case involves one such challenge. For the reasons that follow, the Court grants in part and denies in part the City of Grand Junction’s motion to dismiss, and reserves ruling on whether the statute violates the First Amendment.

I. BACKGROUND

On February 19, 2014, the City of Grand Junction (“the City”) adopted Ordinance No. 4618 with the stated goal of protecting public safety by prohibiting aggressive panhandling and dangerous solicitation of motorists. In response, Plaintiffs Debra Browne, Mary Jane Sanchez, Cynthia Stewart, Steve Kilcrease, Humanists Doing Good, and Eric Niederkruger1 filed the instant suit, alleging that Ordinance No. 4618 violates their First Amendment rights to Freedom of Speech and Expression. (Doe. # 1.)

Plaintiffs moved this Court to temporarily restrain the City from enforcing challenged provisions of Ordinance No. 46182 until a court issues a final ruling on their constitutionality. (Doc. # 6.) On March 21, 2014, Judge Brimmer3 restrained the prohibition on panhandling on public highways and highway exits. (Doc. # 15.) Consequently, the City’s Chief of Police stayed enforcement of Ordinance No. 4618. (Doc. # 46 at 5.)

On April 2, 2014, the City Council voted to adopt a new panhandling ordinance, Ordinance No. 4627, which amended portions of Ordinance 4618. Ordinance 4627 defines panhandling as follows:

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,4 whether by spoken words, bodily gestures, written signs or other means, for money, employment or other thing of value.

Grand Junction, Colo., Municipal Code § 9.05.020 (2015).5 As relevant here, Ordinance 4627 makes it unlawful for any person to panhandle

(a) One-half (1/2) hour after sunset to one-half (1 /2) hour before sunrise;
[1252]*1252(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 initial request;
(g) Within twenty (20) feet of an automatic teller machine or of a bus stop;
(h) On a public bus;
(i) In a public parking garage, parking lot or other parking facility;
(j) 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.

Grand Junction, Colo., Municipal Code § 9.05.040 (2015).

Ordinance 4627, therefore, repealed the ban on soliciting “at-risk” persons, panhandling near schools, and soliciting motorists traveling on particular roadways. It also reduced the no-panhandling “bubble” around ATMs and bus stops from 100 feet to 20 feet and limited the prohibition on panhandling in parking lots to those that are “public.” Compare id. with Grand Junction, Colo., Ordinance 4618 (February 19, 2014) (repealed). It is a misdemeanor to violate Ordinance 4627. Grand Junction, Colo., Municipal Code § 9.05.060 (2015).

The City filed the instant motion to dismiss, arguing that this Court lacks subject matter jurisdiction and that Plaintiffs have failed to state a claim. (Doc. # 46.) That motion is ripe for this Court’s review. (Doc. ## 49, 52.)

II. STANDARD OF REVIEW

The City moves to dismiss Plaintiffs’ claims pursuant to both Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Thus, the Court will set forth the proper standard of review for motions under each rule.

A. FED. R. CIV. P. 12(b)(1)

Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate when the Court lacks subject matter jurisdiction over the claims asserted in the complaint. As set forth, by the Tenth Circuit in Holt v. United States, the standard of review for a Rule 12(b)(1) motion is as follows:

Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint’s allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents, and a .limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir.1995) (internal citations omitted). The burden of establishing subject matter jurisdiction rests on the party asserting jurisdiction. See Montoya v. Chao, 296 F.3d 952, 955 (10th Cir.2002).

B. FED. R, CIV. P. 12(b)(6)

A motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) tests the formal sufficiency of a complaint. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003). A complaint will sur[1253]*1253vive such a motion if it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). For a motion to dismiss, “[t]he question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir.2009).

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85 F. Supp. 3d 1249, 2015 U.S. Dist. LEXIS 42210, 2015 WL 1509775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browne-v-city-of-grand-junction-cod-2015.