Last week, in a case we previously covered here, a federal district court in Colorado considered whether plaintiffs have standing to seek permanent injunctive relief when the defendant has stipulated that it has no intention of enforcing a restriction on expressive conduct.
In Verlo v. City and County of Denver, plaintiffs desired to distribute leaflets regarding jury nullification in the plaza outside of Denver’s Lindsey-Flanigan Courthouse. However, the Colorado Second Judicial District, which operates in the courthouse, issued an order essentially prohibiting all expressive activities in the courthouse plaza. The City and County of Denver, the entity responsible for enforcing the order, stipulated that it would not do so. Furthermore, the city stipulated that it would not interfere with plaintiffs’ peaceful distribution of leaflets in the plaza. Notwithstanding the stipulation, plaintiffs sued the city and the Colorado Second Judicial District, claiming that the order was an unconstitutional restriction on their First Amendment rights. In an earlier decision, the federal district court granted plaintiffs’ motion for preliminary injunction, barring enforcement of the order.
In this latest decision, the court considered the city’s motion to dismiss plaintiffs’ claim seeking permanent injunctive relief. The city contended that the stipulation amounted to “the precise remedy” that the plaintiffs sought. As such, the city argued that the plaintiffs lacked standing and their claims should be dismissed for lack of subject matter jurisdiction. Plaintiffs disagreed, averring that the stipulation did not protect them against future arrest pursuant to an order issued by a court mandating enforcement of the order by the city’s police officers. Plaintiffs argued they had standing to assert a claim for a permanent injunction to prohibit future enforcement of the order.
The court rejected plaintiffs’ arguments, finding that the plaintiffs’ theory of potential continuing harm was too speculative to sustain standing. In light of the stipulation, the court found that a credible threat of future prosecution of the order was lacking and dismissed plaintiffs’ claims against the city for lack of standing.