United States District Court, D. Arizona
[Copyrighted Material Omitted]
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.
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.
K. Jorgenson, United States District Judge.
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.
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.
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.
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.
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
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).
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.
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).
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.
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).
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
Medical Park as anything other than public thoroughfares.
(Compl. ¶ 35).
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.
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.
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.
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.
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).
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