United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion for Summary Judgment
(Filing No. 55), filed by Defendant City of Lincoln (the
“City”); the Motion for Partial Summary Judgment
(Filing No. 57), filed by Defendant SMG; and the Motion for
Leave to File Rebuttal to Defendants’ Supplemental
Index of Evidence (Filing No. 69), filed by Plaintiff Larry
Ball (“Ball”). For the reasons set forth below,
the Motions for Summary Judgment will be granted and the
Motion for Leave will be denied as moot.
following facts are those stated in the Parties’
briefs, supported by pinpoint citations to evidence in the
record, according to NECivR 56.1 and Federal Rule of Civil
a resident and citizen of the City of Lincoln, Lancaster
County, Nebraska. The City is a political subdivision and
city of the State of Nebraska that owns the Pinnacle Bank
Arena (the “Arena”) and associated improvements
and facilities for the benefit of the citizens of the City.
SMG is a Pennsylvania general partnership that serves as the
management company of the Arena and attendant facilities on
behalf of City.
in 2010, the City and the University of Nebraska (the
“University”), through the creation of the West
Haymarket Joint Public Agency (“JPA”), began the
redevelopment of the West Haymarket in the City, which
included construction of the Arena; several parking garages
to the west and south of the Arena; a festival space/surface
parking lot to the north of the Arena; a pedestrian overpass
or bridge accessing the festival space from the Arena; and
new roads, streets, and sidewalks accessing all these
facilities. The pedestrian bridge also serves to connect the
downtown sidewalk system to the nearby baseball/softball
stadium complex as well as the City’s trail system.
(Filing No. 56-5, Ball Depo: 104:18-107:4.) The Arena was to
be used in part as the home court for games for the
University’s men’s and women’s basketball
teams, and was built to replace the City’s aging
Pershing Center that was operated by SMG for more than a
decade, until that Center’s closing in 2014.
the new roads, streets, and sidewalks were constructed
adjacent to the Arena, the area was dominated by railroad
tracks. Those were moved west to accommodate the Arena and
attendant facilities. The City managed construction and
development of the Arena and attendant facilities, roads,
streets, and sidewalks pursuant to a Facilities Agreement
with the JPA.
City entered into a Management Agreement with SMG for
management of the Arena on June 7, 2012, granting SMG the
“exclusive right to manage, market, promote and operate
the Facilities.” (Filing No. 1-6 at ECF 12.)
October 2014, SMG adopted the written Pinnacle Bank Arena/SMG
Exterior Access and Use Policy (the “Policy”),
complete with accompanying diagrams. The Policy was
consistent with an unwritten policy followed by SMG since the
Arena opened. The Policy was posted on the Arena’s
website, and copies were made available to the public. The
Policy designated certain exterior areas as “nonpublic
forum areas” (the “Policy Zone”) reserved
for the use of tenants and the artists or productions they
authorized. The Policy Zone included an exterior plaza
located at the southeast corner of the Arena property near
the southeast entrances of the Arena. (the “Plaza
Area”) (See Filing No. 1-7). The Defendants
assert that the Plaza Area delineated in the Policy can be
identified using landmarks and physical characteristics such
as cement planters, metal stanchions or bollards, and
distinctly colored concrete. (See Filing No. 13-2,
at ECF 4-15; Filing No. 56-4, Depo. Lorenz, 21:3-22:11.) A
diagram of the Policy Zone, including the Plaza Area appears
below as Figure 1:
1: Policy Zone perimeter around Arena property (Policy,
Filing No. 1-7 at ECF 2.) The Plaza Area appears at the
southeast comer of the Policy Zone.
the stated purposes of the Policy is to protect the Plaza
Area in front of main doors for use by tenants and the
artists or productions they authorize, because the Plaza Area
is considered a space included in the tenants' lease of
the facility. (Filing No. 56-3 at ECF 2, Aff. Lorenz, ¶
7.) Another stated purpose of the Policy is to ensure safety
and crowd management of the Plaza Area. (Filing No. 56-3 at
ECF 2-3, Aff. Lorenz, ¶ 9, Filing No. 56-4, Depo.
Lorenz, 22:8-13.) Defendants assert that the Plaza Area
outside the Arena entrances is used by patrons to enter and
exit the Arena before and after performances and sporting
events, and crowds of 12, 000 to 15, 000 may attend single
events. The Plaza Area sometimes is used for security
screening as well. (Id.) The Policy also provides
for public areas outside the Policy Zone. (Filing No. 56-3 at
ECF 3, Aff. Lorenz, ¶ 10; Filing No. 56-4, Depo. Lorenz,
has handed out leaflets in proximity to the Arena on at least
four occasions. On March 15, 2014, he distributed religious
tracts to people attending the boys’ state high school
basketball tournament outside the Arena. The areas where he
stood included the area immediately outside the doors of the
Arena. He was approached several times by SMG staff who asked
him to move outside the Plaza Area to the public sidewalk.
Ball told SMG staff and/or Lincoln police officers he would
leave, but would come back to continue leafleting. Ball
returned later that afternoon and began leafleting in the
Plaza Area north of the bollards. The Lincoln Police
Department was called by SMG staff when Ball refused to move.
Lincoln police officers approached Ball and asked him to move
to the sidewalk outside the Plaza Area. Ball refused to move,
asserting that he had a right to distribute pamphlets in the
Plaza Area. He was then arrested and ticketed for trespassing
and refusing to comply with the officers’ directives.
The charges against Ball were dismissed by the City
Attorney’s Office in May of 2014.
one year later, on March 5, 2015, Ball returned to the Arena
and handed pamphlets to people attending the girls’
state high school basketball tournament. He was aware of the
written Policy and had read it. He stood in the Plaza Area
north of the bollards, approximately 25 feet from an Arena
door. The Lincoln Police Department ticketed Ball for
trespassing, but did not arrest him. He returned on March 7,
2015; engaged in the same conduct; and was ticketed again but
the second weekend of March 2015, Ball distributed leaflets
outside the Arena during the boys’ state basketball
tournament. He stayed on the sidewalk outside the Plaza Area
and was not ticketed or disturbed.
23, 2015, Ball was found guilty of trespassing for the
citations issued on both March 5, 2015, and March 7, 2015,
and fined $50.00 for each citation.
Lincoln Police Department has not cited any other individuals
for trespassing or other criminal violations in connection
with the Arena’s Policy.
filed this action on March 12, 2015, seeking permanent
injunctive relief and monetary damages for alleged violations
of his First Amendment rights. (Filing No. 1).
Contemporaneous with his Complaint, he filed a Motion for
Temporary Restraining Order and Preliminary Injunction.
(Filing No. 2.) On April 15, 2015, the Court denied
Ball’s Motion for Preliminary Injunction, ...