## Facts

- Operation Save America (OSA), an unincorporated anti-abortion group, planned “Summer of Mercy Renewal” protests in Wichita, Kansas, in July 2001; Donna Lippoldt and Philip Benham were associated with OSA’s local efforts.
- Lippoldt applied for multiple parade permits seeking two parades per day over several days, including a route past an abortion clinic on Bleckley Street and East Kellogg Drive, plus an additional downtown route.
- The governing parade ordinance required that a permit be issued unless one of six enumerated exceptions applied; the parties agreed none of the listed exceptions justified denial.
- Deputy Police Chief Stephen Cole reviewed the applications, believed the situation warranted denial, and sought legal assistance.
- Assistant City Attorney Elizabeth Harlenske researched applicable law, understood restrictions must be guided by clear, objective criteria, but prepared a denial letter asserting Bleckley Street was “not an acceptable location,” without proposing narrower time, place, or manner limits.
- Police closed Bleckley Street to most vehicle traffic shortly before the denial; the City later asserted the closure and anticipated interference with local businesses as reasons for denying the permits, despite evidence the ordinance did not authorize denial on business-interference grounds and that other parades had been approved despite similar interference.
- A federal temporary restraining order allowed the parades to proceed; after litigation, the district court found constitutional violations and awarded nominal damages of $1.
- The case also involved challenges related to a municipal bond order and a dispute over attorneys’ fees.

## Issues

1. Whether denying the requested parade permits violated the plaintiffs’ First Amendment rights where the ordinance mandated issuance absent specified exceptions.
2. Whether Cole and Harlenske could be liable under 42 U.S.C. § 1983 for affirmative participation in the unconstitutional denial.
3. Whether OSA, as an unincorporated association, could maintain its claims in its own name.
4. Whether the district court correctly resolved disputes concerning the municipal bond order.
5. Whether the district court erred in substantially denying plaintiffs’ requested attorneys’ fees and costs.

## Decision

- The court affirmed the district court’s decision in the plaintiffs’ appeal challenging the permit denial and related constitutional determinations.
- On defendants’ cross-appeal, the court affirmed in part and reversed in part, and remanded with instructions to dismiss OSA’s claims.
- On the attorneys’ fees appeal, the court affirmed in part and reversed in part, remanding for a new determination of fees and costs.
- The court upheld that the City’s denial lacked valid ordinance-based grounds and was supported by evidence of pretext.
- The court held Cole and Harlenske were not insulated as mere subordinates because their actions were affirmative steps that proximately caused the denial.

## Legal Principles

- When a permitting ordinance makes issuance mandatory absent enumerated exceptions, denial must be justified by those exceptions; officials may not deny permits based on criteria not authorized by the ordinance.
- Pretextual rationales and selective enforcement support a finding that restrictions on expressive activity are unconstitutional, particularly where officials deviate from objective standards.
- § 1983 liability may attach to officials who affirmatively participate in, set in motion, or proximately cause a constitutional violation, even if they are not the final decisionmaker.
- An entity’s ability to sue may fail on capacity or status grounds independent of the merits of its constitutional claims.
- Prevailing parties on significant constitutional claims may be entitled to a recalculated fee award where the district court’s fee analysis does not adequately account for the extent and significance of the success obtained.

## Conclusion

The Tenth Circuit largely sustained the ruling that Wichita unconstitutionally denied parade permits sought for anti-abortion protests under a mandatory-issuance ordinance, held that the involved police and city attorney officials could be liable for their affirmative roles in the denial, required dismissal of OSA’s claims on capacity/status grounds, and remanded for a fresh determination of attorneys’ fees and costs.


Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006)