Faustin v. City and County

F I L E D
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS SEP 28 2001

TENTH CIRCUIT PATRICK FISHER
Clerk

WENDY FAUSTIN,

Plaintiff-Appellee,
v. No. 00-1168
CITY AND COUNTY OF DENVER,
COLORADO; CHIEF TOM
SANCHEZ, in his official capacity as
Chief of the Denver Police
Department; LT. DONALD L. FINK,
in his official capacity as an officer
of the Denver Police Department;
SGT. W.P. HONER, in his official
capacity as an officer of the Denver
Police Department,

Defendants-Appellants.

Appeal from United States District Court
for the District of Colorado
(D.C. No. 98-N-2554)

Stanley M. Sharoff, Assistant City Attorney, (J. Wallace Wortham, Jr., City
Attorney, with him on the briefs), Denver, Colorado, for the appellants.

Michael J. Deprimo, of AFA Center for Law & Policy, Tupelo, Mississippi
(Stephen M. Crampton, Brian Fahling, and Bryan J. Brown, of AFA Center for
Law & Policy, Tupelo, Mississippi, and Frank D. Mylar, Salt Lake City, Utah,
with him on the brief), for the appellee.
Before BRISCOE, McWILLIAMS, Circuit Judges, and JENKINS , District
Judge. *

BRISCOE , Circuit Judge.

Defendants appeal the district court’s decision to grant summary

judgment to plaintiff Wendy Faustin on her claim under 42 U.S.C. § 1983 that

her First Amendment rights were violated. We affirm in part, reverse in part,

and remand.

I.

On several occasions, Faustin displayed a banner at the Perry Street

overpass in Denver. The banner measures three feet by ten feet and reads

“Abortion kills children.” Faustin and a friend stand on the sidewalk of the

overpass to display the banner, each holding one end of the banner. Motorists

in cars traveling on Highway Six, the roadway running under the overpass, can

see the banner. The overpass consists of a road with a sidewalk running along

one side. The sidewalk is public property, intended for pedestrian traffic. The

sidewalk is approximately five feet wide, and a fence runs along it to prevent

pedestrians from falling onto the highway below the overpass.

*
The Honorable Bruce S. Jenkins, Senior United States District Judge,
District of Utah, sitting by designation.

2
 On December 5, 1997, Faustin was displaying the banner at the overpass

when Denver Police Officer Lindsay approached her and asked her to stop

displaying the banner. Faustin complied but asked Lindsay to cite the specific

law she was violating. Sergeant Subia of the Denver Police arrived a short

time later. The two officers reviewed a traffic manual but could find no law

proscribing the display of the banner. The officers told Faustin they were

unaware of any law she had violated by displaying the banner. On February 6,

1998, Faustin was displaying the banner at the overpass when Sergeant Reyes

of the Denver Police informed her she could not display the banner. Faustin

told Reyes she was finished for the day, and Reyes did not pursue the matter.

On March 6, 1998, Faustin was displaying the banner at the overpass

when Denver Police Officer Blea told her she was violating the Posting

Ordinance (Denver Municipal Code section 3-1). 1
Blea consulted with

Lieutenant Fink, who noted Faustin’s banner also violated the Outdoor

Advertising Act. See Colo. Rev. Stat. § 43-1-401 et seq (1999). Following

Faustin's March 6 encounter with the Denver Police, her attorney sent a letter

1
Denver Municipal Code art. I, § 3-1 provides in relevant part:
(a) It shall be unlawful to post, paint, or attach . . . in any
manner any handbill, poster, advertisement or notice of any kind
upon public property except by permission of the manager of the
public works pursuant to established rules and regulations, or on
private property except by permission of the owner or authorized
agent of the owner of such property.

3
to then-Police Chief Michaud requesting assurances that Faustin would not be

arrested for displaying the banner, but received no response.

On August 7, 1998, Faustin was displaying the banner at the overpass

when she was approached by Denver Police Officer Awe. Within fifteen

minutes, four other police cars arrived. Sergeant Honer cited Faustin for

violating section 3-1. The charge was formally dismissed on October 9. The

City Prosecutor determined that the posting ordinance did not apply because

the banner was not affixed to anything. Faustin’s attorney wrote to Police

Chief Sanchez requesting assurance that Faustin would not be arrested for

displaying the banner, but received no response.

On November 18, 1998, Assistant City Attorney Thomas sent a

memorandum to Chief Sanchez advising him that Faustin’s conduct was

protected speech activity which could continue until and unless an actual public

safety hazard was presented. Thomas also advised Chief Sanchez that any

regulation of speech on the overpass required a compelling state interest and

needed to be narrowly tailored.

Faustin filed her 42 U.S.C. § 1983 complaint on November 23, 1998.

The complaint alleged that Denver’s policy of prohibiting speech on the

overpass, specifically application of section 3-1 to Faustin’s display of the

banner, was unconstitutional. As regards an alleged unlawful policy, custom or

4
practice, Faustin alleged in her complaint that “Defendant City and County of

Denver police officers have, on at least four (4) separate occasions, approached

Plaintiff and unlawfully demanded that she remove the handheld display of the

sign from the Perry Street overpass. These repeated unlawful demands

constitute a policy, custom, or practice of the Denver Police Department.”

Aplt. App. at 21. The complaint goes on to allege that “[a]s a direct and

proximate result of Defendants' actions, and the customs, practices, and

policies of the Denver Police Department, Plaintiff is chilled and deprived of

her right to free speech [and free exercise of religion and free assembly].

Plaintiff has suffered, is suffering, and will continue to suffer irreparable harm

as a direct result of Defendants' conduct.” Id. at 23. Faustin requested

declaratory and injunctive relief, as well as nominal damages, costs, and fees.

Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1), claiming the case was moot and that Faustin lacked

standing because the charge against her had been dismissed and was unlikely to

recur. The district court denied the motion.

The parties filed cross-motions for summary judgment. Defendants

argued that Faustin properly could have been charged with violating Colorado

5
Revised Statute section 42-4-606(1). 2
Faustin responded that section 42-4-

606(1) was vague and overbroad. In granting summary judgment in favor of

Faustin, the district court held that section 3-1 was unconstitutional as applied

to Faustin and that section 42-4-606 was facially unconstitutional because it

was vague and overbroad as interpreted by defendants. See Faustin v. City &

County of Denver , 104 F. Supp. 2d 1280 (D. Colo. 2000).

II.

On appeal, defendants contend (1) Faustin lacks standing to challenge

defendants' application of section 3-1 to her conduct because she seeks

prospective relief for injuries that may not occur; (2) Faustin’s constitutional

challenge of section 3-1 as regards the section's application to her conduct is

moot because the charge against Faustin was dismissed before this action was

filed; (3) Faustin lacks standing to challenge the constitutionality of section 42-

4-606 because she was never charged with violating that statute; (4) the district

2
Colo. Rev. Stat. § 42-4-606(1) provides in part:
No person shall place, maintain, or display upon or in view of
any highway any unauthorized sign, signal, marking, or device which
purports to be or is an imitation of or resembles an official traffic
control device or railroad sign or signal, or which attempts to direct
the movement of traffic, or which hides from view or interferes with
the effectiveness of any official traffic control device or any railroad
sign or signal, and no person shall place or maintain nor shall any
public authority permit upon any highway any traffic sign or signal
bearing thereon any commercial advertising.

6
court erred in declaring section 42-4-606 facially unconstitutional; (5) the

district court erred in holding the overpass walkway is a traditional public

forum; and (6) the district court erred in finding municipal liability because

there was no evidence to support a finding of a policy, practice, or custom of

charging Faustin or others with violating section 3-1 when engaging in

protected speech activities.

We review the grant of summary judgment de novo, applying the same

legal standard as the district court. Mesa v. White , 197 F.3d 1041, 1043 (10th

Cir. 1999). Summary judgment is proper if the evidence, viewed in the light

most favorable to the non-movant, shows there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law. Smith

v. City of Enid , 149 F.3d 1151, 1154 (10th Cir. 1998).

Standing and mootness

We review questions of standing and mootness de novo. See Colo. Farm

Bureau Fed’n v. United States Forest Serv. , 220 F.3d 1171, 1173 (10th Cir.

2000; F.E.R. v. Valdez , 58 F.3d 1530, 1532-33 (10th Cir. 1995). Those who

seek to invoke the jurisdiction of the federal courts must satisfy the Article III

requirement of having an actual case or controversy. City of Los Angeles v.

Lyons , 461 U.S. 95, 101 (1983). “Plaintiffs must demonstrate a personal stake

in the outcome in order to assure that concrete adverseness which sharpens the

7
presentation of issues necessary for the proper resolution of constitutional

questions.” Id. (internal quotations omitted). Plaintiffs must show they have

sustained or are immediately in danger of sustaining some direct injury, and the

injury or threat of injury must be real and immediate, not conjectural or

hypothetical. Id. at 101-02. To establish standing, plaintiffs must show injury

in fact, a causal relationship between the injury and the challenged action of

the defendant, and a likelihood that the injury will be redressed by a favorable

decision. Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998).

Defendants contend Faustin lacks standing to challenge the application of

section 3-1 to her conduct because the section 3-1 charge against Faustin was

dismissed before this civil case was filed, and she is not being prosecuted under

section 3-1 at this time. Defendants are partially correct. Faustin has standing

to sue for damages based on her prosecution (including nominal damages,

which she sought) and to seek declaratory relief with respect to her

prosecution. See F.E.R. , 58 F.3d at 1533 (“The Patients' claim for a

declaratory judgment is similar to their claim for damages. In each, the

Patients ask the court to determine whether a past constitutional violation

occurred. In this dispute the alleged liability-producing act has already

occurred. Because the question still exists as to whether the defendants

violated the Patients' right to privacy, a controversy on the Patients' right to

8
privacy still exists. . . . Therefore, the claim for a declaration that the

defendants improperly invaded the privacy of the Patients when they seized the

psychiatrist's files is not moot and this claim will be discussed later with the

claim for damages .”). However, she lacks standing to seek injunctive relief

with respect to section 3-1. To have standing, Faustin must show a real and

immediate threat that she will be prosecuted under this statute in the future.

O’Shea v. Littleton , 414 U.S. 488, 495-96 (1974). In light of the city

prosecutor’s determination that Faustin was not violating the posting ordinance

because she was holding the sign and it was not affixed in any way, it is not

likely she will again be charged under section 3-1.

Defendants also contend Faustin lacks standing to challenge the

constitutionality of section 42-4-606. Defendants are correct that Faustin

cannot challenge section 42-4-606 as being unconstitutional in application. See

Phelps v. Hamilton , 122 F.3d 1309, 1327 (10th Cir. 1997). The statute was not

applied to Faustin and was not mentioned in her complaint.

Faustin argues her challenge of the statute is a facial challenge under the

overbreadth doctrine. Facial challenges to statutes are sometimes permissible,

especially where speech protected by the First Amendment is at stake. N.Y.

State Club Assoc. v. City of N.Y. , 487 U.S. 1, 11 (1988). To prevail on a

facial attack, the plaintiff must demonstrate that the challenged law either could

9
never be applied in a valid manner or, “even though it may be validly applied

to the plaintiff and others, it nevertheless is so broad that it may inhibit the

constitutionally protected speech of third parties.” Id. (internal quotations

omitted). “[T]here must be a realistic danger that the statute itself will

significantly compromise recognized First Amendment protections of parties

not before the Court for it to be facially challenged on overbreadth grounds.”

Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S.

789, 801 (1984).

Faustin offers no explanation of how the statute inhibits the speech of

third parties. Rather, she argues that the statute unconstitutionally inhibits her

own speech and that if she were prosecuted under it, the statute would be

unconstitutionally applied to her. The overbreadth doctrine does not apply

where there is no significant difference between the claim that the ordinance is

invalid because of overbreadth and the claim that it is unconstitutional when

applied to the plaintiff's own activities. See id. at 802 (holding plaintiffs

lacked standing under overbreadth doctrine because they “have not attempted to

demonstrate that the ordinance applies to any conduct more likely to be

protected by the First Amendment than their own crosswires signs”). The

overbreadth doctrine is inapplicable to Faustin’s claim and does not provide

standing for her to challenge the constitutionality of section 42-4-606.

10
 Traditional Public Forum

The First Amendment does not guarantee access to property simply

because it is owned or controlled by the government. See Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n , 460 U.S. 37, 46 (1983). There are three

categories of government property: (1) traditional public fora; (2) designated

public fora; and (3) nonpublic fora. Hawkins v. City & County of Denver , 170

F.3d 1281, 1286 (10th Cir. 1999).

Faustin argues the overpass is a sidewalk, which is quintessentially a

public forum. Streets and parks “have immemorially been held in trust for the

use of the public and, time out of mind, have been used for purposes of

assembly, communicating thoughts between citizens, and discussing public

questions.” Hague v. Comm. for Indus. Org. , 307 U.S. 496, 515 (1939)

(Roberts, J., concurring). The Supreme Court has observed that “[n]o

particularized inquiry into the precise nature of a specific street is necessary;

all public streets are held in the public trust and are properly considered

traditional public fora.” Frisby v. Schultz , 487 U.S. 474, 481 (1988).

Defendants rely on three cases to draw a distinction between sidewalks and

walkways. Defendants contend these three cases are applicable here and render

the overpass a nonpublic forum.

In United States v. Kokinda , 497 U.S. 720 (1990), the issue was whether

11
the sidewalk in front of the post office was a traditional public forum. The

Court found it lacked the characteristics of a public sidewalk traditionally open

to expressive activity. Specifically, it was not a thoroughfare, but a sidewalk

constructed “solely to assist public patrons to negotiate the space between the

parking lot and the front door of the post office, not to facilitate the daily

commerce and life of the neighborhood or city.” Id. at 728. The Court

concluded that “the location and purpose of a publicly owned sidewalk is

critical to determining whether such a sidewalk constitutes a public forum.” Id.

at 728-29. Here, the overpass does not lead from a parking lot to the front door

of a building, but enables pedestrian traffic to cross over a highway. It links

the parallel sides of the street to one another, acting as a thoroughfare between

them rather than providing access to a single remote location.

In Chicago Acorn v. Metropolitan Pier and Exposition Authority , 150 F.

3d 695 (7th Cir. 1998), the issue was whether the sidewalks on Navy Pier were

traditional public fora. The court concluded that “[r]ather than being part of

the city’s automotive, pedestrian, or bicyclists’ transportation grid, the

sidewalks on the pier . . . are internal to the pier.” Id. at 702. Here, the

overpass is not in an isolated segment of town that is set apart from everything.

In Jacobsen v. Bonine , 123 F.3d 1272 (9th Cir. 1997), the court

determined that the perimeter walkways of interstate rest areas are not

12
traditional public fora. The court held that “[t]hese walkways are integral parts

of the rest stop areas, which are themselves oases from motor traffic.” Id. at

1274. Jacobsen is not similar to the present case as the overpass here is

directly connected to other sidewalks and is part of general pedestrian traffic.

We used a similar line of analysis in Hawkins . We found that the walkways in

the Galleria were not public fora because they were not “part of Denver’s

automotive bicycle or pedestrian transportation grid, for [the Galleria] is closed

to vehicles, and pedestrians do not generally use it as a throughway to another

destination.” 170 F.3d at 1287. Here, the overpass is part of the transportation

grid, and pedestrians use it as a gateway to the other side of the highway.

In a case analogous to the case at bar, Lytle v. Brewer , 77 F. Supp. 2d

730 (E.D. Va. 1999), a group displayed anti-abortion signs on a pedestrian

overpass running over a highway. The court, noting that “nothing in the record

indicates that the overpass was built for anything other than for what is

expected – to aid the general public in crossing over the highway, similar to a

sidewalk which protects pedestrians from traffic,” concluded the overpass was

a traditional public forum. Id. at 736. Defendants argue the overpass is

distinct from a sidewalk because it is suspended in air. However, the fact that

the overpass (the roadway and its adjacent sidewalk) is suspended does not

disqualify it as a traditional public forum.

13
 Policy, practice, or custom

The district court treated this case as a challenge to section 3-1 and

section 42-4-606. However, closer analysis of the complaint, the motions for

summary judgment, and the briefing before us indicates that Faustin also

challenges defendants’ policy of prohibiting all expression on overpasses.

Defendants admit this policy exists. The policy is subject to First Amendment

challenge. See Hawkins , 170 F.3d at 1286 (“The First Amendment applies not

only to legislative enactments, but also to less formal governmental acts, such

as city policies.”).

Faustin has standing to challenge the policy. See Hawkins , 170 F.3d at

1286. She has been asked to remove her banner on four separate occasions.

Further, she intends to continue to display her banner at the overpass, which

means there is a real and immediate threat that defendants will continue to

enforce their policy against her. Faustin has shown injury in fact and has

shown a causal relationship between the injury and the challenged action of the

defendants. Further, she has shown a likelihood that the injury will be

redressed by a favorable decision. The district court should address this issue

on remand.

III.

We REVERSE the district court’s holding that Faustin has standing to

14
pursue injunctive relief to prevent future application of section 3-1 to her

banner activities, but AFFIRM the district court’s holding that she has standing

to pursue declaratory relief and nominal damages regarding defendants' past

enforcement of section 3-1 against Faustin. We REVERSE the district court’s

holding that Faustin’s claim was not moot with respect to injunctive relief, but

AFFIRM with respect to declaratory relief and nominal damages .

We REVERSE the district court’s holding that Faustin has standing to

challenge section 42-4-606 and its holding that 42-4-606 is unconstitutional.

We AFFIRM the district court’s holding that the overpass is a traditional public

forum. We REMAND to the district court for further proceedings to address

whether defendants' policy violates Faustin's First Amendment rights.

15
00-1168, Faustin v. City & County of Denver

JENKINS, Senior District Judge, concurring in part and dissenting in part.

I agree with much of what the lead opinion says. I depart only as to three issues.

Constitutionality of Denver Mun. Code art. I, § 3-1

The lead opinion affirms the district court’s declaration that “the Posting

Ordinance (Denver, Colo. Mun. Code art. I, § 3-1 [1950]) is unconstitutional as applied to

plaintiff’s protesting activities on the Perry Street Overpass and cannot be enforced to

prevent plaintiff from engaging in those activities.” Faustin v. City & County of Denver,

104 F. Supp. 2d 1280, 1290 (D. Colo. 2000).1

The first step in deciding whether a statute or ordinance is unconstitutional is to

determine whether a genuine conflict exists between the statute or ordinance and the

constitutional text. See, e.g., Public Citizen v. Department of Justice, 491 U.S. 440, 465

(1989) (“‘[E]ven if a serious doubt of constitutionality is raised, it is a cardinal principle

that this Court will first ascertain whether a construction of the statute is fairly possible by

which the question may be avoided.’” (quoting Crowell v. Benson, 285 U.S. 22, 62

(1932))); ANR Pipeline v. Lafaver, 150 F.3d 1178, 1186-87 n.8 (10th Cir. 1998)

(“[F]ederal courts should avoid reaching the merits of a constitutional issue when the case

may be decided on statutory grounds.”).

1
As described above, Ms. Faustin was issued a citation under the Denver Posting
Ordinance, Denver Mun. Code, art. I., § 3-1 that a prosecuting attorney later determined to have
been improvidently issued. By its own terms, § 3-1 did not apply to Ms. Faustin’s conduct
because she did not “post” her banner by affixing it to any public property. The citation was
dismissed prior to trial.
 Section 3-1 extends only to signs or banners that are “posted”—physically painted,

attached, or affixed to public property. The district court acknowledged this. 104 F.

Supp. 2d at 1288 (“the terms of the statute punish only physical attachment of notices to

other property”). Section 3-1 thus cannot be applied to Ms. Faustin’s conduct in

displaying her banner unless she “posts” the banner by affixing it to the overpass

structure. She has expressed no inclination to do that.

When read according to its plain language, § 3-1 simply does not reach Ms.

Faustin’s expressive activity, and no genuine conflict exists between the ordinance and

the Constitution’s guarantee of free expression. The district court need not have decided

whether § 3-1 is “unconstitutional as applied” because § 3-1 simply cannot be “applied”

to Ms. Faustin’s conduct. There existed no actual controversy as to the application of § 3-

1 warranting the declaratory relief granted by the district court and now affirmed by the

panel.2

The district court’s declaratory judgment as to the unconstitutionality of § 3-1

should be vacated.

Damages Liability for the § 3-1 Citation

The question whether § 3-1 is “unconstitutional as applied to plaintiff’s protesting
2

activities,” 104 F. Supp. 2d. at 1290, is distinct from whether the defendants infringed on her
First Amendment rights on August 7, 1998 by issuing her a citation under an inapplicable
ordinance. F.E.R. v. Valdez, 58 F.3d 1530, 1533 (10th Cir. 1995), involved declaratory relief on
an issue of the latter sort, “whether a past constitutional violation occurred,” not declaratory relief
on the broader question of unconstitutionality of a statute or ordinance, as was granted by the
district court in this case.

-2-
 Municipalities may be held liable for violations of civil rights under § 1983 if such

violations result from the “execution of a government’s policy or custom.” Monell v.

New York City Dept. of Soc. Serv., 436 U.S. 658, 694 (1978). Denver is correct that the

district court erred to the extent that it granted summary judgment in favor of Ms. Faustin

on the theory that Denver is liable in damages for violating her constitutional right to free

expression pursuant to a policy, practice, or custom of charging Ms. Faustin and others

with violating § 3-1.3 The uncontroverted facts set forth in the district court’s opinion do

not establish the existence of a city policy, practice, or custom to enforce § 3-1 against

Faustin and others—an ordinance that Denver readily concedes does not apply to her

conduct. Ms. Faustin received one citation issued by one officer, which was dismissed by

the city two months after it was issued. See 104 F. Supp. 2d at 1283.4

The lead opinion acknowledges that this issue was raised on this appeal, but offers

no explanation why the district court’s error should now be overlooked.

Absent a showing of a constitutional violation that occurred as a matter of

3
The district court granted summary judgment in Faustin’s favor because it found
that her constitutional rights were violated “by defendants’ application of the Posting
Ordinance,”104 F. Supp. 2d at 1288, implying that the defendant City and County of
Denver must have had a policy, custom or practice of applying § 3-1, even though none
appears in the record.
4
It appears that she has sued the issuing officer, Sgt. W.P. Honer, in “his official
capacity as an officer of the Denver Police Department.” Remembering that an action
against a government official in his official capacity is an action against the government
entity he represents, Kentucky v. Graham, 473 U.S. 159, 166 (1985), the recovery even
of nominal damages in this case seems problematic.

-3-
municipal policy, practice or custom, it remains doubtful whether Ms. Faustin is entitled

to judgment as a matter of law on the § 1983 claim against Denver for damages—even

nominal damages—involving § 3-1 and the issuance of the August 7, 1998 citation. Yet

that is what the lead opinion appears to affirm.

Denver’s “Policy, Practice, or Custom” re: Overpasses

The district court ruled that Denver’s “blanket prohibition on all expressive

activities on any overpass makes the Unauthorized Display Statute impermissibly

overbroad,” rendering the statute unconstitutional. Id. at 1289 (emphasis in original).

The lead opinion reverses the district court’s grant of summary judgment as to the

Colorado Unauthorized Display Statute, Colo. Rev. Stat. § 42-4-606, on the grounds that

Ms. Faustin lacks standing to challenge the statute. I concur in this court’s reversal of

that judgment.

However, we remand the case for further proceedings concerning Denver’s

“longstanding policy of prohibiting all speech and expressive activity on highway

overpasses,” a policy that was recognized but not separately addressed by the district

court. 104 F. Supp. 2d at 1288, 1289 (emphasis in original). Defendants admit this

policy exists, and assert that the policy “mirrors” state and federal laws regarding signs on

highways, pointing specifically to Colo. Rev. Stat. § 42-4-606. (Appellants’ Brief at 8.)

The lead opinion treats the city policy as a policy, not merely as an official

construction of the statute, and likely is correct in doing so. City policies may be subject

-4-
to First Amendment challenge, as Hawkins instructs. Hawkins v. City and County of

Denver, 170 F.3d 1281, 1287 (10th Cir. 1999).

However, the lead opinion affords Ms. Faustin standing to challenge the city

policy for overbreadth at the same time that it denies her standing to challenge the

underlying statute on the same grounds, mirror image or not. In her brief, Ms. Faustin

makes substantially the same overbreadth argument as to the policy that she makes as to §

42-4-606. (Compare Appellee’s Brief at 26-28, with id. at 35-36, 40-41.)

Moreover, it does not appear from the record now before us that Ms. Faustin

actually pleaded any First Amendment challenge to the policy as a policy before the

district court. Perhaps such a claim could be amended into her existing pleadings, but to

date, this has not been done. Amendment of pleadings falls within the purview of the

district court under Fed. R. Civ. P. 15. No comparable Federal Rule of Appellate

Procedure empowers this court to allow such amendment, or to rule in the first instance

on standing to assert claims not pleaded below. See Hicks v. Gates Rubber Co., 928 F.2d

966, 970 (10th Cir. 1991).

It seems to me that this court should remand the question of Ms. Faustin’s standing

to challenge the policy based on her asserted ground of overbreadth5 to be determined in

5
(See Appellee’s Brief at 28 (Denver’s “policy is not narrowly tailored, and thus is
unconstitutionally overbroad”).) The portion of the complaint quoted by the lead opinion
alleges that the four incidents of contact with individual officers ending with the issuance
of the § 3-1 citation “constitute a policy, custom, or practice of the Denver Police
(continued...)

-5-
the first instance by the district court, based upon proper pleadings and an adequate

record. See Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997) (“‘[i]t is a long

settled principle that standing alone cannot be “inferred argumentatively from averments

in the pleadings,” but rather “must affirmatively appear in the record.”’” (quoting

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (citations omitted)). The

district court was not presented with a challenge to the city policy, separate and apart

from the Posting Ordinance or the statute, at the time that it ruled on the parties’ summary

judgment motions, and should have the first opportunity to address the question of

standing as raised in that context.

5
(...continued)
Department”—an obvious attempt to plead § 1983 municipal liability for the actions of
the individual officers rather than a facial challenge to a content-neutral city policy
affecting all expressive activities on overpasses. Plaintiff’s claim seems to be evolving
as this appeal progresses.

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