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Spears v. City of Tucson

United States District Court, D. Arizona

August 26, 2015

Roy Spears, Plaintiff,
v.
City of Tucson, Arizona; Roberto Villaseñor, in his official capacity as Chief of Police for City of Tucson; C. Burnett, individually and in his official capacity as police officer for City of Tucson Police Department, Defendants

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[Copyrighted Material Omitted]

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          For Roy Spears, Plaintiff: Bert Edward Moll, LEAD ATTORNEY, Bert E Moll PC, Chandler, AZ; Hardin Chase Pittman, LEAD ATTORNEY, Holley Elder & McWhirter PC, Germantown, TN; Nathan W Kellum, LEAD ATTORNEY, Center for Religious Expression, Memphis, TN.

         For Tucson, City of named as City of Tucson, Arizona, Roberto Villasenor, in his official capacity as Chief of Police for City of Tucson, C Burnett, individually and in his official cpacity as police officer for City of Tucson Police Department, Defendants: Michael WL McCrory, LEAD ATTORNEY, Office of the Tucson City Attorney, Civil Division, Tucson, AZ; Sivan Rebecca Korn, LEAD ATTORNEY, Tucson City Attorney - Civil Division, Tucson, AZ.

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         ORDER

         Cindy K. Jorgenson, United States District Judge.

         Pending before the Court is Plaintiff's Motion for Preliminary Injunction (Doc. 6). Plaintiff seeks declaratory relief and nominal damages. Defendants have filed a Response (Doc. 31) and Plaintiff has filed a Reply (Doc. 33). Also pending is Defendants' Motion to Dismiss Case as Moot or Motion for Summary Judgment (Doc. 29). Plaintiff has filed a Response (Doc. 35) and Defendants have filed a Reply (Doc. 37). The parties presented oral argument to the Court on May 18, 2015.

         I. Factual Background

         Roy Spears (" Spears" ) is the named Plaintiff in this case. Spears claims Defendants' policy of enforcing trespass law when a property is stated to be private without obtaining more information violated his constitutional right to free speech. (Compl. ¶ 67). Spears seeks injunctive and declaratory relief, as well as nominal damages.

         Tucson Medical Center (" TMC" ) owns the commercial subdivision commonly referred to as Tucson Medical Park, Block 2 (" Park" ). The Park houses offices of various medical providers. (Compl. ¶ 5). The City of Tucson, Arizona (" City" ), Roberto Villaseñor (" Villaseñor" ), and C. Burnett (" Burnett" ) (collectively " Defendants" ) assert the recorded 1968 Plat of the Tucson Medical Park shows the entire Park as private property, depicts no internal roadways, and makes no mention of North Wyatt Drive or East Farness Drive. In addition, Defendants suggest three other plats (Book 27, p. 48; Book 29, p. 51; Book 38, p. 68) describe Wyatt Dr. and other interior streets appearing on the plat as private streets. (Defendant's Reply to Plaintiff's Reply Statement of Undisputed Facts Regarding Plats, " Def. Reply S.O.F." , Doc. 38, p. 3; Ex. P4-P6). The original 1968 Plat is recorded at Book 18, Page 49, Pima County Recorder's Office. (Def. Reply S.O.F., pg. 3; Ex. P1) An unnamed drainage way and an easement for the use of the public along a different street (Seneca Street) was dedicated by TMC in the dedication section of the 1968 Plat. Id.

         Spears asserts the commercial subdivision is better represented by a different annotated plat, the Complaint alleges the plat is recorded at Book 19, page 43, by the Pima County Recorder. (Compl. ¶ 24; Plaintiff's Motion for Prelim. Injunction " Pl. M.P.Inj." , Doc. 6, Ex. D). This plat shows Wyatt Dr., Farness Dr. and easements. (Pl. M.P.Inj., Ex. D). The annotated plat indicates it is not the official plat, that it is furnished for reference only and does not constitute a survey. Id.

         A Roadway Use Permit, executed on October 18, 1977, and recorded at Book 5633, Page 0858, granted the non-exclusive right to use the roadways of Wyatt Dr. and Knight Dr. to TMC employees, invitees,

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and the public at large. (Compl. ¶ 30). The permit grants this right as set forth in exhibits attached to the Roadway Use Permit. Id. The permit and attached exhibits describe these areas in surveyor's terms; it does not include a map or make reference to the existing 1968 plat. (Pl. M.P.Inj., Ex. H) Defendants assert the Roadway Permit is not mentioned in any of the recorded plats. (Def. Reply S.O.F., p. 3). Plaintiff asserts that this document granted a public entitlement as public thoroughfares to Wyatt Dr. and Farness Dr. (Compl. ¶ 31).

         The building on Parcel No. 631 of the Park, commonly known as 2255 North Wyatt Dr., is leased to Planned Parenthood of Southern Arizona, Inc. (Compl. ¶ 26). The Sanger Center operates this location. Id.

         On September 16, 2013, Spears and others went to the sidewalk at the intersection of Wyatt Dr. and Farness Dr., approximately 75 feet from the Sanger Clinic. (Compl. ¶ 43-44). Spears alleges he was there to share his views on abortion with his intended audience. (Compl. ¶ 44). Spears and the other persons were approached by a security guard who characterized the sidewalk as private property, off-limits to the general public, and asked Spears and the others to leave the area and move to an alternate location. (Compl. ¶ 46). Spears asserts they were asked to leave because of their message regarding abortion. (Compl. ¶ 47).

         Spears asserts he declined to leave because he was standing on what appeared to be a public sidewalk. (Compl. ¶ 48). Tucson Police Department (" TPD" ) Officer Burnett was dispatched to Wyatt Dr. at the request of a TMC security supervisor, Kevin Loeffler, who sought to have Spears and other protesters on Wyatt Dr. removed from the sidewalk. Defendant's Statement of Undisputed Facts in Support of Defendant's Motion for Summary Judgment " Def. S.O.F." , Doc. 30-1, p. 4-5). Loeffler stated to Burnett the sidewalks and streets were private property and were not publicly maintained. Id. at 5. Burnett requested TMC produce documentation to establish that the sidewalk along Wyatt Dr. was indeed private property. Id. TMC's Director of Security, Bill Fleming, provided records from the Pima County Assessor's Office depicting all streets within the TMC Medical Park as privately owned by TMC. Id.

         Burnett also contacted his supervisor, TPD Lieutenant Reese. Id. Defendants assert Reese confirmed with the City's Streets and Transportation Department that the streets and sidewalks within the Medical Park, including Wyatt Dr., were private property. Id. at 4. Spears asserts, however, that it was only confirmed that the streets were owned by TMC. Burnett then advised Spears and those gathered with him on Wyatt Dr. that they were trespassing on private property. (Compl. ¶ 51-52). Spears contends he explained to Burnett that the sidewalk was public domain and that he had a right to speak on that sidewalk. (Compl. ¶ 51). Spears further states that Burnett advised the group they would be arrested for criminal trespass if they did not leave and that they could not return to that sidewalk to conduct expressive activities again. (Compl. ¶ 51, 52). Spears and the other persons with him agreed to leave and Spears did not return to the sidewalk near the Sanger Center for fear of arrest. (Compl. ¶ 62).

         Spears proposes that not only does the City retain easements on the TMC property, but that the roads were designed as thoroughfares connecting seamlessly to the transportation grid. (Compl. ¶ 42). Spears alleges there are no signs, gates, or any other markers identifying Wyatt Dr., Farness Dr. or the public sidewalks within the

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Medical Park as anything other than public thoroughfares. (Compl. ¶ 35).

         In an October 10, 2013 letter to Villaseñor and the Tucson City Attorney's Office, Spears, through counsel, demanded that the City allow Spears the freedom to speak and display signs about abortion on Wyatt Dr.. (Pl. M.Pl.Inj., Ex. Q). The letter alleged TPD's actions, requiring Spears vacate his post on Wyatt Dr., on September 13, 2013 violated his First Amendment rights. Id. Spears indicated in the October 2013 letter that the Wyatt Dr. sidewalk is a public forum and contested the City's purported policy of banning his speech there. Id.

         Defendants declare TPD's actions were based on the only information available to them at the time. This information included supported evidence that Wyatt Dr. was privately owned, which resulted in TPD acting on the City's longstanding policy of enforcing state trespass laws where a trespass claim is reasonably substantiated. (Declaration of Roberto Villaseñor, Doc. 30-2, ¶ 6). Villaseñor clarified the City's trespass policy, " [W]hen activity is occurring on private property, TPD officers are expected to make a reasonable, independent determination based upon reasonably available information. However, an officer responding to a property owner's trespass claim cannot and should not be expected to conduct a title search or other legal or record research to explore and resolve any possible conflicting property rights claims." Id. at ¶ 7. " The City and TPD have no specific policy or custom specific to private property rights in North Wyatt Dr. and East Farness Dr." Id.

         On October 15, 2013, the City responded to Spears' October 2013 letter reasserting the private nature of the property on Wyatt. (Compl. ¶ ¶ 56-57). The letter explains that since 1968, the sidewalk within the medical complex was been preserved as private. (Pl. M.Pl.Inj, Ex. R). The letter states Wyatt Dr. is used for internal circulation only and was never intended nor used as a public thoroughfare. Id.

         One year later, on September 12, 2014, Spears filed a Complaint against Defendants: the City; Villaseñor, in his official capacity as Chief of Police for the City of Tucson; and Burnett, individually and in his official capacity as a TPD police officer. Spears seeks injunctive and declaratory relief and nominal damages.

         After the initiation of Spears' action, TMC commissioned a survey to determine the scope of the easement described in the Roadway Use Permit. In a letter dated December 5, 2014, TMC advised the City that TMC had dedicated Wyatt Dr., Farness Dr., and Knight Dr. for public use in its 1977 Roadway Use Permit, and that the survey showed the geographic scope of this easement encompassed the Wyatt Dr. sidewalk, including the portion of the sidewalk in front of Planned Parenthood. (Plaintiff's Notice of Filing Exhibit " Pl. Notice" , Doc. 24, Ex. S; Def. S.O.F., Ex. 9). TMC further stated that it now considers the sidewalk to have the same status of any public sidewalk, it has withdrawn any objection to Spears' protected speech within the public right of way, and it will not seek Spears' removal from the sidewalk at issue to the extent he is engaged in protected speech activities. (Def. S.O.F., Ex. 9).

         Defendants claim the City has now concluded that TPD must treat Wyatt Dr. and Farness Dr. as any other public street and the sidewalk running along these roadways as any other public sidewalk. (Declaration of Roberto Villaseñor, Doc. 30-2, ¶ 8). As a public street, members of the public, including Spears, may exercise their First Amendment rights ...


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