A federal judge has dealt a setback to a group of protesters who challenged statehouse rules, contending the regulations violated their free speech rights.
A federal judge dismissed two of the four counts raised in the lawsuit brought on the group’s behalf by the American Civil Liberties Union.
In the other two counts, U.S. District Judge Holly Teeter denied the ACLU’s request for an injunction blocking permitting requirements for statehouse events and enforcement of a law allowing authorities to ban someone from the Capitol for violating the rules.
The issues related to permitting and statehouse bans will continue forward, although Teeter found there are still serious questions about whether the plaintiffs can show they have legal standing to bring the lawsuit.
Confidential settlement reports were submitted to the court before Teeter issued her ruling on Aug. 30. Both sides have a conference call set for Friday with Magistrate Judge Angel Mitchell to discuss whether the ruling changes their views on alternative dispute resolution.
An effort to reach the ACLU for comment on Monday was unsuccessful.
Throughout the 38-page opinion, Teeter seemed skeptical of the claims brought in the lawsuit, which stemmed from a demonstration at the Capitol on March 27 when protesters were kicked out of the building for unfurling mammoth banners in the rotunda criticizing Senate leadership for not expanding Medicaid.
Three protesters were initially banned from the Capitol for a year, a punishment that was lifted a day later but ultimately led to the ACLU’s lawsuit.
Teeter dismissed one count contending that protesters were banned from bringing handheld signs into the Capitol, a claim the judge suggested was disingenuous because they in fact hung two-story banners in the rotunda.
“No one has ever sanctioned plaintiffs for having handheld signs in the Statehouse,” the judge wrote. “No one has ever even threatened Plaintiffs with enforcement of the provision of the usage policy that bars personal signs.
“There is not even any allegation in the amended complaint that Plaintiffs have ever even attempted to bring a handheld sign into the Statehouse.
“And the amended complaint certainly contains no factual allegations that suggest Plaintiffs have ever faced a credible threat of enforcement of the handheld sign provision—other than a conclusory allegation that enforcement of the sign ban has been ‘threatened’ against Plaintiffs.”
She dismissed a second claim in the lawsuit, which said that plaintiffs feared retaliation for expressing their First Amendment rights.
Among other things, the protesters argued that they feared they could be detained by police, be banned from the Capitol and face harassment from authorities.
Teeter said the protesters were seeking action for something that might happen in the future based on their past experience.
She said the plaintiffs would have to show at a minimum that they plan to protest in the future and that the Capitol Police would retaliate.
“This seems highly improbable given that the entire premise of plaintiffs’ case is that they desire—but have no immediate plans—to protest in the Statehouse because they fear the consequences,” she wrote.
“They have not established a ‘real and immediate, not conjectural or hypothetical,’ … threat of future retaliation based solely on their past experience,” she wrote.
Teeter kept in place two other counts in the lawsuit, one dealing with statehouse permitting requirements and the authority of Capitol Police to ban someone from the statehouse.
However, she denied preliminary injunctions in both those counts and questioned whether they could withstand challenges of legal standing.
Teeter noted there was difficulty in resolving the permitting issue because of the “uncompelling comparison” the plaintiffs made between unfurling the large banners in the rotunda and future plans for silent, small-group protests with handheld signs.
The judge pointed to testimony from the head of the state’s facilities office who said a permit was not required for spontaneous gatherings on the Capitol’s first, second and ground floors unless they needed reserved space or a podium, chairs or an easel.
Meanwhile, the director of legislative services, which controls the upper floors of the Capitol, would likely allow small gatherings without approval.
Teeter further pointed to testimony from both officials who said they couldn’t recall that an application had been denied because of viewpoint.
She said the plaintiffs did not provide any evidence that officials stopped small groups or individuals from entering the Capitol without prior approval — or any evidence that such
conduct would be considered an “event” under the permitting policy.
The court acknowledged state law said that “no person shall conduct any meeting, demonstration or solicitation … without the prior permission” of the secretary of administration. On its face, she said it appeared the law would apply to just one person.
“The usage policy, which outlines the requirements for holding an ‘event’ in
the statehouse, seems to more clearly relate to large or space-specific conduct,” Teeter wrote.
The judge referred to testimony that permitting rules at the statehouse were intended to give some control over what was happening in the building to ensure there was not a “free-for-all.” Testimony also indicated that the permitting was required to determine appropriate security, housekeeping or technological needs, among other things.
“These concerns are not unimportant,” Teeter wrote. “Removing any event policies would certainly effectively open the Statehouse doors to any and all activities…
“And balanced against the minimal harm Plaintiffs have shown, this balancing weighs against issuing an injunction.”
She rejected the plaintiffs’ claims the Statehouse was a traditional public forum.
“Traditional public forums are those such as ‘streets and parks which have immemorially been held in trust for the use of the public and . . . have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” she wrote.
While the court agreed the Capitol was a forum for debate and the exchange of ideas , it saw no similarity between the rotunda and a sidewalk or public park.
“To hold that the statehouse rotunda — in close proximity to the offices of the governor and legislators and other state officials — is a traditional public forum would open up the very center of the statehouse to the same activities that can take place on a city street or public park,” she said.
“The statehouse rotunda simply is not appropriate for such conduct, and plaintiffs have not come forward any evidence to the contrary,” she said.
Teeter was equally skeptical of the last count in the lawsuit challenging the authority of Capitol Police to issue complete bans.
She pointed to testimony from the head of the Capitol Police, Lt. Eric Hatcher, who said he instructs the officers to only ban someone for actual violations of the law.
He said any arrest must be preceded by a trespass warning, and that the main consideration is whether the person poses a safety risk.
During the hearing on the case, Hatcher testified that a ban was imposed two other times recently: once for someone inappropriately touching himself in front of a women’s bathroom on the Capitol’s fifth floor, and for someone else breaking into a legislator’s office.
In this case, Hatcher said the one-year ban that was initially imposed on the student protesters was lifted because a Capitol police officer “did not follow the policy that I wanted to be followed.”
“It is already the stated policy of the Capitol Police to not issue bans for conduct short of criminal violations — the precise relief plaintiffs seek,” Teeter wrote.
“Accordingly, they are in no danger of being banned for simple policy violations, and thus face no threat of immediate or irreparable harm.”
