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Ball v. City of Lincoln

United States District Court, D. Nebraska

June 23, 2016

LARRY BALL, Plaintiff,
v.
CITY OF LINCOLN, NEBRASKA, and SMG, a Pennsylvania General Partnership; Defendants.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE

         This 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.[1]

         BACKGROUND

         The following facts are those stated in the Parties’ briefs, supported by pinpoint citations to evidence in the record, according to NECivR 56.1[2] and Federal Rule of Civil Procedure 56.

         Ball is 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.

         Beginning 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.[3]) 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.

         Before 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.

         The 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.)

         In 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:

         (IMAGE OMITTED)

         Figure 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.

         One of 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, 35:23-36:2.)

         Ball 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.

         Nearly 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 not arrested.

         During 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.

         On July 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.

         The Lincoln Police Department has not cited any other individuals for trespassing or other criminal violations in connection with the Arena’s Policy.

         Ball 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, ...


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