Van Gorden v. Utah State Fair
NATHAN HULT - 4704
100 North 100 East
Logan, Utah 84321
Telephone: (435) 753-7400
STEPHEN C. CLARK - 4551
AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC.
355 North 300 West. Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF UTAH
Judge: Tena Campbell
Case No. 2:98CV868C
KURT VAN GORDEN, CINDY VAN GORDEN, TRINITY EVANGELICAL BAPTIST FELLOWSHIP AND MINISTRIES, and CHRIS BREYER Plaintiffs,
UTAH STATE FAIR. STATE OF UTAH. SALT LAKE CITY POLICE DEPT., CITY OF SALT LAKE, DONNA DAHL, JOHN WHITTAKER, SHERI WHITTAKER, JESSE POWELL, JACKIE POWELL, FRANK WERNER. JOHN RICHARD EVANS, STEVEN SMITH, SERGENT CHUCK GILBERT, STEVE HUTTO, and JOHN & JANE DOES 1-1O, in their individual and official capacities. Defendants
1. The Plaintiffs, Kurt and Cindy Van Gorden, husband and wife. (hereinafter Mr. or Mrs. Van Gorden, respectively, or "the Van Gordens") are individual persons and residents of the State of California.
2. Trinity Evangelical Baptist Fellowship and Ministries, dba Jude 3 Missions and dba Utah Gospel Mission (hereinafter collectively "Jude 3 Missions"), is a non-profit California corporation registered in Utah as a foreign corporation.
3. Chris Breyer is the Vice President of Jude 3 Missions and is a resident of California.
4. The Utah State Fair Corporation is a governmental subdivision of the State of Utah. It was created by and was funded by the State of Utah at the time of the incidents described herein and is authorized to operate the Utah State Fair ("State Fair") pursuant to the laws of the State of Utah (UCA 9-4-1 1 01 et seq.)
5. The City of Salt Lake City, Utah authorized by and created under the laws of the State of Utah.
6. The Salt Lake City Police Department is authorized under the law of the State of Utah and the laws of the City of Salt Lake City.
7. All acts complained of herein occurred in Salt Lake City, State of Utah.
Subject Matter Jurisdiction
8. This court has jurisdiction over this matter pursuant to:
a. 28 U.S.C. 1331 in that this case arises under the United States Constitution.
b. 28 U.S.C. 1332 in that the matter in controversy exceeds $50,000.00 and this case it involves a controversy between citizens of one State and another State.
c. 42 U.S.C. 1983 and 1988.
9. This Court is the proper venue in that the Defendants all are subdivisions of the State of Utah, or employed by the State of Utah, and all of the actions at issue in this matter occurred in the State of Utah.
10. Mr. Van Gorden applied on behalf of the Jude 3 Missions for a booth at the Utah State Fair n 1986, 1987 and 1988 and was denied a booth at the State Fair allegedly because they were full.
11. In July of 1988 the Utah State Fair advertised in local newspapers that they had additional booths available. Mr. Van Gorden called the Fair, protesting that he had been rejected for three years purportedly because there was no space, vet now the Fair was advertising the availability of space. Mr. Van Gorden was told by Pam Riley, an employee of the State Fair, that the real reason his former applications had been rejected was because his literature did not cater to the people of the State of Utah. After protest to Alice Shearer of the Utah State Department for Commerce and Economic Development (which oversaw Fair Operations at the time) and to the Attorney General’s Office, Mr. Van Gorden was able to obtain a booth.
12. Three days into the 1988 Fair, the booth was shut down without written notice because the literature being distributed at the booth by the Van Gordens and other Jude 3 Missions co-workers was alleged to be "offensive" to Mormons. After the intervention of attorney Robyn Blumner of the American Civil Liberties Union (wherein it was pointed out to the State Fair Board that booths operated by members of the Church of Jesus Christ Of Latter Day Saints at the Fair criticized Baptists, Presbyterians. and Methodists by name which is offensive to Protestants), the State Fair Board permitted a reopening of the booth.
13. Thereafter, the Van Gordens maintained a booth at the Fair for the Jude 3 Missions through 1996 (9 consecutive years), publishing a newspaper and distributing it each year, although they were harassed each year by administrative personnel at the Fair.
14. In September 1996, the Van Gordens obtained two booths, one on behalf of Jude 3 Missions and a separate booth on behalf of the "Rev. Kurt Van Gorden, author/speaker" for the promotion and selling of religious books written by Mr. Van Gorden. Six days before the opening of the 1996 Fair, the Assistant to the Director of the Fair, Donna Dahl, told Mr. Van Gorden by telephone that "this is the last year that you will have those books at this Fair."
15. The Jude 3 Missions booth rental contract and the Van Gorden’s personal booth rental contract for 1996 had an additional clause, not found in any of the other contracts for booths at the Fair. They provided that "Exhibitor may not take pictures of Fair patrons without their express written permission." Despite protesting that such provision infringed on their constitutional rights as journalists, but believing that all other journalistic media representatives were likewise barred by a similar provision, the contract was signed by Kurt Van Gorden. The Fair had been aware of Mr. Van Gorden’s and the Jude 3 Missions journalistic background for eight years.
16. On September 10, 1996, the Van Gordens noted that some of their books were being stolen at their personal booth, the one rented for "Rev. Kurt Van Gorden, author/speaker." On the following morning, September 11, 1996, Mr. Van Gorden asked the Building Supervisor an agent of the Fair, if he could monitor the book table and cash box with his personal video camera from the back of the booth. The Building Supervisor gave his permission and said it would be a good idea. He also added that he would double check, and if there was a problem he would let the Van Gordens know. He never returned and informed the Van Gordens to the contrary.
17. On Friday, September 13, 1996, Mr. Van Gorden reported two incidents of harassment at his booth to Cindy Pearcy, the Commercial Exhibit secretary of the Fair, and to Donna Dahl, Assistant Director of the Fair, and informed both them that they had recorded both incidents on their security video camera at their personal booth. Cindy Pearcy said it was good for Mr. Van Gorden to watch his things, but as she was leaving she directed Mr. Van Gorden to inform Donna Dahl of the same. Donna Dahl became upset, accusing Mr. Van Gorden of taking pictures in violation of his contract. Mr. Van Gorden informed her that he had received permission 3 day earlier from the Building Supervisor to monitor for theft. Ms. Dahl said she would talk further with Mr. Van Gorden on the following day
18. On Saturday, September 14, 1996, Donna Dahl. John Whittaker (CEO of the Utah State Fairpark and Director of the Utah State Fair), Sherri Whittaker (the wife of John Whittaker), and Detective Frank Wemer of the Salt Lake City Police Department went to the [Jude 3 Missions] booth at the Coliseum and demanded the video camera. No video camera was being used at that booth as no books were for sale at that booth, nor had permission been requested or obtained for use of the video camera at that the Jude 3 Missions booth. Chris Breyer, the person in charge of the Jude 3 Missions booth, responded to Ms. Dahl, Detective Wemer, and the Whittakers that there was no video camera at this booth, but there was one at the Market Place booth rented by Mr. Van Gorden because books had been stolen.
19. Two of these individuals, John Whittaker and Sherri Whittaker, who were unknown to the Van Gordens at that time, then went to the "Kurt Van Gorden author/speaker" booth in the Market Place where the books were being offered for sale. Mr. Whittaker placed his hand over the lens of the video camera from the adjacent booth and ordered Mr. Van Gorden to shut it off, while refusing to identify himself.
20. Mr. Van Gorden asked him for his name and what he was doing but he would not initially identify himself or answer any questions.
21. As Mr. Whittaker continued his requests, Cindy Van Gorden took Mr. Whittaker’s photograph with a 35 mm camera to document his actions. He was still unidentified and was placing his hand over their equipment and interfering with their normal course of business. [As a contributor to the newspaper, Cindy Van Gorden often takes photo-journalistic pictures of stories in action].
22. At that point, Sherri Whittaker, who appeared to act at the behest, acquiescence, or approval of Mr. Whittaker, shoved the camera into Cindy Van Gorden’s face. Then John Whittaker grabbed Cindy Van Gorden’s hands and camera attempting to seize the same. After this scuffle, Mr. Van Gorden stepped between them demanding an explanation, and demanding that Mr. Whittaker identify himself, which he did.
23. Mr. Van Gorden told his wife to leave the Fair with the camera and film because Mr. Whittaker continued to harass them. Cindy Van Gorden placed the camera in her shirt and proceeded towards the exit.
24. An unidentified security guard, apparently employed by the Fair, met Cindy Van Gorden at the door about 150 feet from the booth and reached for her shirt, grabbing her breast. She pulled free and he grabbed her wrist. She broke free and attempted to come back to the booth. She was calling to her husband Kurt Van Gorden to send a man with her.
25. As she attempted to exit a second time with a male co-worker, additional Fair security guards surrounded her, grabbing at her and physically detaining her against her will.
26. Cindy Van Gorden was then assaulted by several Fair security guards including ones named John Richard Evans, Jesse Powell, and Jackie Powell. During the assault Chris Breyer came to Cindy Van Gorden’s aid, and he too was assaulted by an officer, who pushed him in the chest.
27. Their assaultive conduct involved picking Cindy Van Gorden up and slamming her back down on to the asphalt feet first, apparently trying to jar loose what they thought was a video tape. They began reaching into her shirt attempting to grab the camera,which they thought was a videotape, grabbing her breasts instead. Cindy Van Gorden was doubled over in pain on the asphalt, so they jerked her up by the hair. The slamming of Cindy Van Gorden on the pavement and then jerking her up by the hair was repeated a second time
28. A Salt Lake City Police Officer, who later identified himself as Detective Frank Wemer, approached Cindy Van Gorden from behind without identifying himself as a police officer or informing her she was under arrest. He seized her right arm and twisted it behind her back, holding it there while security officers continued to grope for the camera in her shirt, and handcuffed her without identifying himself as an officer or informing she was being arrested. When she was able to turn around and see who was restraining her, she discovered that it was a police officer.
29. Cindy Van Gorden was arrested for "interfering with an investigation" although when later questioned by Mr. Van Gorden, Detective Wemer could not specify what investigation she had interfered with.
30. Cindy Van Gorden was taken to a police trailer and kept in handcuffs for approximately 50 minutes. Cindy Van Gorden sustained two dislocated ribs and other injuries to her neck and back and has required medical care for her injuries. She continues to suffer pain as a result of her injuries. Chris Breyer, Kurt Van Gorden, and John Van Gorden (the Van Gorden’s son) accompanied officer Wemer enroute to the police trailer. Richard Evans followed behind Mr. Breyer and hit him in the back.
31. After the seizure of Cindy Van Gorden, Detective Steven Smith and Sgt. Chuck, Gilbert of the Salt Lake City Police Department insisted upon standing immediately in front of the "Rev. Kurt Van Gorden" booth, blocking it even after they admitted to Mr. Van Gorden that their police business was finished.
32. Sgt. Gilbert picked up one of Mr. Van Gorden’s books on display, and proceeded to question Mr. Van Gorden as to the purpose of his books and of the booth. He refused to leave for some period of time and when he did leave, he walked off with one of the books without paying for it. Mr. Van Gorden’s co-worker, Chris Breyer, called Sgt. Gilbert back to either return the book or pay for it.
33. Detective Smith was present and did not intervene during Sgt. Gilbert’s harassment, but contributed to the same.
34. When these officers did leave, Detective Smith took Mr. Van Gorden’s driver’s license with him, which he had requested earlier. Mr. Breyer made Mr. Van Gorden aware that his driver’s license had been kept by the officers, so they sought Detective Smith out on the fairgrounds and demanded its return.
35. Later that evening, the head of the Fairpark’s security, Mr. Steve Hutto, accosted Mr. Van Gorden. When this was reported to Lieutenant Scott Folsom of the Salt Lake City Police Department, who was on the scene, he refused to take a report on it although other eyewitnesses confirmed Mr. Van Gorden’s complaint to Lieutenant Folsom.
36. After Mr. Breyer, the Van Gordens, and their mission workers had closed down both booths for the evening, at approximately 11:10 p.m., on Saturday, September 14, 1996, Mr. Whittaker was seen standing in front of the door with several security guards surrounding him in a semicircle. Mr. Van Gorden asked Mr. Whittaker if he had received his letter that he had delivered to the Fair office in response to Mr. Whittaker’s letter that was dropped off at the booth at approximately 4:30 p.m. Mr. Whittaker then began taunting Mr. Van Gorden.
37. At that time, and without provocation, an unknown security guard stepped up to Kurt Van Gorden and assaulted him by pushing his chest into Mr. Van Gorden’s. Chris Breyer was standing next to Mr. Van Gorden with a tape recorder in his shirt pocket. The security guard assaulted Mr. Breyer by grabbing his shirt and shutting off the tape recorder in his pocket.
38. When they stepped away, Mr. Breyer noticed a silver badge on the belt of this guard, which was partially covered by his shirt. Believing him to be a police officer, Chris Breyer and Kurt Van Gorden approached him asking him if he was a law officer and what his badge number was. He refused to tell them and his identification was not discovered for several minutes when Salt Lake City Police Lieutenant Scott Folsom identified him as Mr. Steve Hutto.
39. Mr. Whittaker demanded that Lieutenant Folsom escort the Jude 3 Mission workers from the fairground. Mr. Van Gorden and Mr. Breyer requested several times that Lieutenant Folsom take a police report on the incident as an assault, which he refused to do, even in the presence of eyewitnesses who confirmed the incident. Both booths were closed by Mr. Whittaker and Donna Dahl the following morning, but the Van Gorden’s and Jude 3 Mission were permitted to retrieve their possessions before the opening of the fair.
40. Mr. Van Gorden submitted a fee and request for an application for a booth for 1997. But it became evident, after several phone calls and letters that he would not be given assurances of being fairly treated. He also received a harassing phone call on March 3, 1997 from Mr. Whittaker. Mr. Van Gorden finally gave up his pursuit of a booth for 1997 and asked for his fee to be refunded.
First Cause of Action (Violation of U.S. Constitution’s Free Exercise Clause)
41. The defendant subdivisions of the State of Utah were all created by the State of Utah, or are authorized to act by the State of Utah on its behalf. The defendants sued in their official and individual capacities are employed by the defendant subdivisions of the State of Utah.
42. The First Amendment to the United States Constitution, as made applicable to the States by the Fourteenth Amendment to the United States Constitution, prohibits the Defendants from prohibiting the free exercise of religion.
43. The Defendants Utah State Fair, Salt Lake City Police Department, City of Salt Lake City, Donna Dahl, John Whittaker, Sheri Whittaker, Steven Smith, and Chuck Gilbert’s actions violated this prohibition in that their actions prevented the Plaintiffs from a free exercise of their religion and religious rights.
Second Cause Of Action (Violation of U.S. Constitution’s Freedom of Speech Clause)
44. The Defendant subdivisions of the state of Utah were all created by the State of Utah, or are authorized to act by the State of Utah on its behalf. The defendants sued in their official and individual capacities are employed by the defendant subdivisions of the State of Utah.
45. The First Amendment to the United States Constitution, as made applicable to the States by the Fourteenth Amendment to the United States Constitution, prohibits the Defendants from abridging the Plaintiffs freedom of speech.
46. The Defendants Utah State Fair, Salt Lake City Police Department, City of Salt Lake City, Donna Dahl, John Whittaker, Sheri Whittaker, Steven Smith, and Chuck Gilbert’s actions violated this prohibition in that their actions abraded the Plaintiff s right to freedom of speech.
Third Cause of Action (Violation of U.S. Constitution’s Freedom of the Press Clause)
47. The Defendant subdivisions of the State of Utah were all created by the State of Utah, or are authorized to act by the State of Utah on its behalf. The defendants sued in their official and individual capacities are employed by the defendant subdivisions of the State of Utah.
48. The First Amendment to the United States Constitution, as made applicable to the States by the Fourteenth Amendment to the United States Constitution, prohibits the Defendants from abridging the Plaintiffs rights to the freedom of the press.
49. The Defendants Utah State Fair, Salt Lake City Police Department, City of Salt Lake City, Donna Dahl, John Whittaker, Sheri Whittaker, Steven Smith, and Chuck Gilbert’s actions violated this prohibition in that their actions abridged the Plaintiff s right to freedom of the press.
Fourth Cause of Action (Violation U.S. Constitution’s Unreasonable Search and Seizure Clause)
50. The Defendant subdivisions of the State of Utah were all created by the State of Utah, or are authorized to act by the State of Utah on its behalf. The defendants sued in their official and individual capacities are employed by the defendant subdivisions of the State of Utah.
51. The Fourth Amendment to the United States Constitution, as made applicable to the States by the Fourteenth Amendment to the United States Constitution, prohibits the Defendants from engaging in unreasonable searches and seizures.
52. The Defendants Utah State Fair, John Richard Evans, Jesse Powell, Jackie Powell, Salt Lake City Police Department, City of Salt Lake City, and Frank Wemer’s actions violated this prohibition in that their actions constituted an unreasonable search and seizure.
Fifth Cause of Action (Violation of 42 USC Sections 1983 and 1988)
53. All Defendants acted under color of the statutes, ordinances, regulations, customs, or usage of the State of Utah or of the City of Salt Lake City in that that is where they purportedly drew their authority to act as described in this complaint.
54. All Defendants subjected to the Plaintiffs, or caused the Plaintiffs to be subjected to the deprivation of rights, privileges, or immunities secured to them under Constitution and law of the United States.
55. Said deprivations caused injury to the Plaintiffs.
56. The Plaintiffs are citizens of the United States.
57. Consequently, pursuant to 42 U.S.C. 1983, all Defendants are liable to Plaintiffs for injuries caused, and are liable for attorneys fees pursuant to 42 U.S.C. 1988.
Sixth Cause of Action (Assault)
58. Defendants Utah State Fair, John Richard Evans, Jesse Powell, Jackie Powell, Sheri Whittaker, John Whittaker, Salt Lake City Police Department, City of Salt Lake City, Frank Wemer and John Does 1-10 acted intending to cause harmful or offensive contact with respect to Plaintiff Cindy Van Gorden. John Evans and Steve Hutto and defendants John Does 1-10 acted intending to cause harmful or offensive contact with respect to Plaintiff Chris Breyer. Steve Hutto acted intending to cause harmful or offensive contact with respect to Plaintiff Kurt Van Gorden.
59. As a result, the Plaintiffs Cindy Van Gorden, Kurt Van Gorden, and Chris Breyer were put in imminent apprehension of contact and/or harm.
60. The Plaintiffs, Cindy Van Gorden, Kurt Van Gorden, and Chris Breyer suffered injuries proximately caused by the named Defendants’ actions.
Seventh Cause of Action (False Imprisonment)
61. Defendants Utah State Fair, John Richard Evans, Jesse Powell, Jackie Powell, Salt Lake City Police Department, City of Salt Lake City, and Frank- Wemer acted intending to confine or restrain Plaintiff Cindy Van Gorden.
62. These Defendants’ actions resulted in the confinement or restrain of the Plaintiff.
63. The Plaintiff was conscious of the confinement or restrain or was harmed by it.
64. These Defendants acted without having reasonable grounds to believe that the Plaintiff committed a criminal offense.
65. The conduct of all Defendants was willful and malicious, or done in knowing and reckless indifference toward, and a disregard of, the rights of others.
WHEREFORE, Plaintiffs pray for relief as follows:
1. For an injunction requiring granting of the two booths at the Utah State Fair.
2. Compensatory damages.
3. Punitive damages.
4. Attorney’s fees