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Lippoldt v. Cole

468 F.3d 1204 (2006)

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Lippoldt v. Cole

United States Court of Appeals for the Tenth Circuit

468 F.3d 1204 (2006)

Facts

Operation Save America (OSA), a group of volunteers who opposed abortion, along with OSA director Philip Benham and OSA-Wichita volunteer Donna Lippoldt (the protestors) (plaintiffs) sued alleging the City of Wichita, deputy police chief Stephen Cole, and assistant city attorney Elizabeth Harlenske (defendants) violated the First Amendment by denying OSA parade permits. As part of planned annual protests, Lippoldt applied for permits for two parades daily for five days along a route including Bleckley Street, where a targeted abortion clinic was located, plus one parade downtown. Cole thought the situation warranted a denial and asked the city law department for an opinion and assistance. Harlenske researched relevant law and learned the government must have clear guidelines to restrict parades to avoid violating the Constitution. However, Harlenske drafted a letter denying the Bleckley Street permits for Cole to sign without suggesting alternatives, such as parades for a shorter period of time, stating that Bleckley Street “was not an acceptable location.” The day before the city issued its decision, the police closed Bleckley Street to vehicles except local traffic. The city claimed it denied permits because Bleckley Street was closed, making it no longer within the parade ordinance, and because the parades would interfere with local businesses in violation of a local city ordinance. Cole had approved other parades knowing they interfered with local businesses, and Harlenske acknowledged that the parade ordinance did not allow the city to deny permits solely on that basis. The court granted a temporary restraining order allowing OSA to hold the parades past the targeted clinic. After two years of discovery and motions practice, the court concluded Cole and Harlenske violated the protestors’ constitutional rights and awarded the protestors nominal damages of $1. Cole and Harlenske appealed, arguing they did not cause the deprivation of the protestors’ rights because they were subordinates to those who actually decided to deny the permits.

Rule of Law

Issue

Holding and Reasoning (Briscoe, J.)

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