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Ball v. City of Lincoln

United States District Court, D. Nebraska

April 15, 2015

LARRY BALL, Plaintiff,
v.
CITY OF LINCOLN, NEBRASKA, CHRIS BUETLER, Mayor of the City of Lincoln; JAMES PESCHONG, Lincoln Chief of Police; and SMG, a Pennsylvania General Partnership; Defendants.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on the Motion for Preliminary Injunction, or in the alternative, Motion for Temporary Restraining Order (Filing No. 2) filed by Plaintiff Larry Ball ("Ball"). The parties, through counsel, appeared before the Court for a hearing on Ball's Motion on March 16, 2015. At the hearing, the parties agreed to consolidate their arguments on the Motion for Preliminary Injunction and the Motion for Temporary Restraining Order. After the hearing, the parties filed briefs in support of their positions. For the reasons stated below, the Motion will be denied.

BACKGROUND[1]

I. Arena Speech Policy

In September of 2013, [2] Defendant City of Lincoln (the "City") opened the Pinnacle Bank Arena (the "Arena"), a large, modern sports and entertainment venue to replace the fifty-year-old Pershing City Auditorium. The City contracted with Defendant SMG, a facilities management company, to operate the Arena. SMG is an international company that manages hundreds of stadiums and arenas and had a contract to manage Lincoln's Pershing Auditorium before the Arena opened.

Defendants assert that when the Arena opened, SMG adopted a policy (the "Policy") regarding access to the Arena's exterior areas. The purpose of the Policy was to establish consistent and neutral limitations that would allow for efficient and safe entry of crowds as large as 12, 000 to 15, 000 people attending Arena events. The Policy was also intended to preserve the plaza in front of the Arena's main entrance for use by Arena tenants and exhibitors. In October 2014, a written version of the Policy, with accompanying diagrams, was posted on the Arena's website, and paper copies were made available to members of the public. ( See Pinnacle Bank Arena/SMG Exterior Access and Use Policy, Filing No. 1-7.) The Policy stated that its purpose was to "consistently and efficiently manage the use of the exterior areas around the [Arena], to assure convenient access to Arena Patrons, and to respect the contractual rights of Arena tenants, acts, and exhibitors." (Policy, Filing No. 1-7 at ECF 1.) To further this purpose, the Policy prohibited certain types of public communication within a defined area:

Leafb02eting, signature gathering, promotional material distribution, merchandise sales, and picketing are only allowed within the Arena and the non-public forum exterior Arena areas at the request of a Tenant, the Tenant's contractual entity and/or the artists or productions they represent.

(Policy, Filing No. 1-7 at ECF 1.) The Policy defined the "non-public forum exterior Arena areas" (the "Policy zone"), as "areas that extend out to the public sidewalk perimeter and include walkways, steps, verandas, terraces, access ramps, parking lots, loading ramps, the Arena Festival Space/parking lot, and the Arena premium parking garage." (Policy, Filing No. 1-7 at ECF 1.) A diagram of the Policy zone appears below as Figure 1:

Figure 1: Policy zone perimeter around Arena property (Policy, Filing No. 1-7 at ECF 2.)

In a plaza located at the southeast corner of the Arena property, near the main entrance to the Arena, Defendants assert that the boundary of the Policy zone is marked with landmarks such as metal stanchions, cement planters, and distinctly colored concrete. There is no evidence as to how the Policy zone is marked, if at all, on other areas of the Arena property. The Court will refer to that part of the plaza within the Policy zone as the "Plaza Area."

II. Ball's Expressive Activity

Ball is a citizen of Lancaster County, Nebraska. As part of his religious devotion, Ball attempts to share Christian messages by passing out pamphlets. On March 15, 2014, Ball was handing out pamphlets to people entering and leaving the Arena. Defendants claim that Ball stood immediately outside the entrance to the Arena while leafleting. He was not aggressive or confrontational, and he described himself as friendly with the crowd. Ball was confronted several times by SMG employees, who told him to leave. Ball did leave but soon returned, and SMG employees again told him to leave. This time Ball refused and police were called. Ball was arrested and ticketed by the Lincoln Police Department for trespassing and refusing to comply under the Lincoln Municipal Code. Ball challenged the ticket and his arrest on First Amendment grounds, and the City Attorney dismissed the charges.

Ball was arrested again and ticketed for trespassing on March 5, 2015. Defendants assert that Ball was leafleting in the Plaza Area. SMG staff provided Ball with a copy of the Policy and asked Ball to move out of the Plaza Area to the nearby sidewalk. Ball refused to move, and Lincoln City Police officers cited him for trespassing. After receiving the citation, Ball left the Arena property.

On March 7, 2015, Ball was again leafletting near the Arena. Defendants contend he was in the Policy zone. He was asked to move; he refused; and he was cited for trespassing. Ball asserts that when he was ticketed, he was on a sidewalk designated as a public thoroughfare. After being cited, Ball left the Arena property.

STANDARD

A district court considers the four factors set forth in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc), when deciding whether to issue a preliminary injunction. Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citing Dataphase, 640 F.2d at 114). Those factors are: "(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." Dataphase, 640 F.2d at 114. "No single factor is determinative." WWP, Inc. v. Wounded Warriors, Inc., 566 F.Supp.2d 970, 974 (D. Neb. 2008). The movant bears the burden of establishing the propriety of the injunction. See Roudachevski, 648 F.3d at 705.

DISCUSSION

I. Likelihood of Success on ...


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