author: EBEL, Circuit Judge.

text:
    Jane FELIX; B.N. Coone, Plaintiffs-Appellees, v. CITY OF BLOOMFIELD, Defendant-Appellant. Liberty Counsel, Amicus Curiae.
    No. 14-2149
    United States Court of Appeals, Tenth Circuit.
    Filed November 9, 2016

      Jonathan A. Scruggs, Alliance Defending Freedom, Scottsdale, Arizona (David A. Cortman and Kevin H. Theriot, Alliance Defending Freedom, Scottsdale, Arizona, Joel Oster, Oster Law Firm, Shawnee, Kansas, and Ryan Lane, T. Ryan Lane, P.C., Aztec, New Mexico, with him on the briefs), for Defendant-Appellant.
    Andrew G. Schultz, Rodey Dickason Sloan Akin & Robb, P.A., Albuquerque, New Mexico (Matthew M. Beck, Rodey Dickason Sloan Akin & Robb, P.A., Albuquerque, New Mexico, Alexandra Freedman Smith, ACLU of New Mexico Foundation, Albuquerque, New Mexico with him on the briefs), for Plaintiffs-Appellees.
    Mathew D. Staver, Anita L. Staver, and Horatio G. Mihet, Liberty Counsel, Orlando, Florida, and Mary E. McAlister, Liberty Counsel, Lynchburg, Virginia, filed a brief for Amicus Curiae.
    Before BACHARACH, EBEL, and McHUGH, Circuit Judges.
   EBEL, Circuit Judge.

The Ten Commandments are a symbol of both religious and secular significance. McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 869, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (“[T]he original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction.”); Van Orden v. Perry, 545 U.S. 677, 701, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring in the judgment) (noting the Ten Commandments can convey “a secular moral message ... about proper standards of social conduct” or a message “about a historic relation between those standards and the law”); id. at 690, 125 S.Ct. 2854 (plurality opinion) (“Moses was a lawgiver as well as a religious leader.”). Because of this duality, there are some circumstances in which the government’s display of the Ten Commandments runs afoul of the Establishment Clause, and other times when the display passes constitutional muster. The outcome depends principally on the degree to which the government’s conduct, as perceived by an objective observer, amounts to a religious endorsement either in purpose or effect. Green v, Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 796-97 (10th Cir. 2009) (applying the “Lemon test,” as refined by Justice O’Connor’s concurrence in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)).

In this case, Plaintiffs Jane Felix and B.N. Coone challenge the City of Bloomfield’s conduct allowing the installation of a Ten Commandments monument on the City Hall Lawn. The lawsuit raises two preliminary questions before we proceed to the Establishment Clause analysis, We first consider standing and conclude Plaintiffs have suffered a legally sufficient injury to bring their claim in federal court. We next ask whether the monument is government speech subject to the limitations of the Establishment Clause, or instead is private speech in a public forum which enjoys immunity from First Amendment scrutiny. The Supreme Court tells us that permanent monuments are government speech, even when donated by a private actor—so we conclude the First Amendment applies here.

We finally confront the religious endorsement effect of the display. In light of the context and apparent motivation of the Ten Commandments’ placement on the lawn, we conclude the City’s conduct had the effect of endorsing religion in violation of the Establishment Clause. Accordingly, having jurisdiction under 28 U.S.C. § 1291, we AFFIRM;

BACKGROUND FACTS

The City of Bloomfield is a small community located in San Juan County, in the northwest corner of New Mexico, Bloomfield’s Municipal Complex includes City-Hall and City Hall Lawn, the Fire Station, a utilities department where residents pay water bills, and various other municipal departments. Plaintiffs Jane Felix and B.N. Coone are polytheistic Wiccans who reside in Bloomfield. That means they do not adhere to Christianity’s conception of one deity, or subscribe to the principles and dictates advanced by the Commandments.

At an April 2007 Bloomfield City Council Meeting, City Councilor Kevin Mauzy proposed that the council allow him to install privately-funded monuments on the City Hall Lawn, in front of City Hall (an area of about thirty feet by forty-five feet). Mau-zy’s initial presentation to the council offered ideas ranging from the Declaration of Independence to the Code of Hammurabi, but he sought the council’s immediate approval for only one: the Ten Commandments monument (“Monument”). At this point, Bloomfield did not have a policy for what kinds of monuments may be installed on the lawn. Despite objections from several people in attendance, the City Council approved placement of the Monument on the City Hall Lawn. Several people responded to Bloomfield’s approval of the Monument by presenting a petition and writing letters to Bloomfield and local newspapers opposing the Monument on city property. Mauzy then contacted a local business to begin constructing the Monument and reached out to two local churches for donations to fund its construction. Two active city council members, Lynne Raner and Lamar Morin (a pastor at one of the churches), donated to the project through their respective churches.

In July 2007, three months after the City Council initially approved the Monument, the City Council approved Resolution #2007-12 (“Forum Policy No. 1”), the first forum policy governing the placement of “permanent” monuments on the lawn. The forum policy imposed two requirements relevant here: (1) a statement on all monuments “explaining that the message communicated by the monument is that of the donor, not the City of Bloomfield,” and (2) that all monuments “relate to the history and heritage of the City’s law and government.” (Aplt. App. 288). The policy gave the City Council “absolute discretion” to reject a proposed monument based on aesthetic, safety, or practical concerns. (Id. at 289).

As donations dwindled for the Monument, Mauzy left the City Council in 2008 and abandoned efforts for the tablet’s construction. In 2010, however, Mauzy revived his endeavor and began fundraising again, although this time not through churches. In the Spring of 2011, Mauzy sought to present the final plan to the City Council. He was added to the “consent agenda” for items that are routine, procedural, or had been formerly discussed. (Id. at 284). The City Council unanimously approved the Monument over an objection from a citizen in attendance, and Mauzy erected it on the lawn on July 1, 2011. It weighs over 3,400 pounds and is embedded approximately fourteen inches into the ground.

The Monument is at the front of the lawn, and its prominence depends on where a person enters the City Hall parking lot. (See App. Fig 2). It is also visible from U.S. Highway 550, one of the main roads through town. At the bottom of the tablet, a disclaimer set in small inconspicuous font reads: “Any message hereon is of the donors and not the City of Bloomfield.” (Id. at 1088). The day he installed the Monument, Mauzy also placed an additional freestanding disclaimer sign on the City Hall Lawn, (see App. Fig. 3), that reads:

The City has intentionally opened up the lawn around City Hall as a public forum where local citizens can display monuments that reflect the City’s history of law and government. Any message contained on a monument does not necessarily reflect the opinions of the City, but are statements from private citizens. If you would like to display a monument in this forum, please contact the City Clerk, who can give you a copy of the ordinance that explains the procedures for displaying a monument.

(Id. at 287).

Mauzy held a dedication ceremony for the Ten Commandments on the City Hall Lawn on July 4, 2011. The occasion was replete with both secular and religious observances. The Star Spangled Banner was sung, the Pledge of Allegiance was recited, and members of the local Veterans of Foreign Wars chapter ceremoniously folded the American flag. But the event was inaugurated with prayer from a church deacon, the flag-folding was set to religious narration, and Mauzy delivered remarks emphasizing and celebrating Christian precepts. Among other comments laden with religious meaning, Mauzy said, “Some would believe this monument is a new thing. They have been so busy trying to remove God from every aspect of our lives.... God and his Ten Commandments continue to protect us from our evil.” (Id. at 465). He also read the disclaimer on the bottom of the Monument out loud.

Later the same month, on July 25, 2011, the City Council approved a revised forum policy proposed by Mauzy, Resolution #2011-15 (“Forum Policy No. 2”), which removed the word “permanent” from the earlier version and required donors to reapply every ten years to keep their monuments on the lawn. About four months later, in October 2011, the council approved Mauzy’s proposed Declaration of Independence monument, which he installed in November 2011. He held another dedication ceremony for that monument, but without any religious components.

After Plaintiffs filed suit on February 8, 2012, the City Council approved, and Mau-zy later installed, monuments depicting the Gettysburg Address (dedicated July 4, 2012) and the Bill of Rights (dedicated July 4, 2014). Both had dedication ceremonies devoid of religious overtures. As of the time of filing, Mauzy was the only person to apply for or install monuments on the City Hall Lawn. Bloomfield had not advertised its forum policy nor sought monuments from any other citizens.

STANDARD OF REVIEW

We ordinarily review a district court’s factual findings for clear error and its legal conclusions de novo. Green, 568 F.3d at 795. In First Amendment cases, however, the Court examines “constitutional facts” de novo. Id. When the dispute concerns an alleged Establishment Clause violation, “constitutional facts” are the “district court’s findings on each part of the Lemon test.” Id. at 795-96 (internal quotation marks omitted) (referring to the tripartite test from Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)). That test has three parts—purpose, effect, and entanglement—but the district court here grounded its decision only on the “effect” prong. Accordingly, we limit our analysis to whether there was an effect of endorsement.

DISCUSSION

I, Standing

We begin with standing. Because Article III standing is a jurisdictional issue, we must satisfy ourselves that it.exists here. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs must meet three requirements for standing: injury-in-fact, causation, and redressability. Id. at 560-61, 112 S.Ct. 2130. We are quickly satisfied the latter elements exist, so the only issue we address on appeal is injury-in-fact. “In the context of alleged Establishment Clause violations, a plaintiff may establish non-economic injury if ‘directly affected by the laws and practices against which their complaints are directed.’ ” Green, 568 F.3d at 793 (quoting O’Connor v. Washburn Univ., 416 F.3d 1216, 1222-23 (10th Cir. 2005)).

Bloomfield argues Plaintiffs lack standing because “being offended” is not an injury-in-fact, and Plaintiffs never actually read the text on the Monument. Bloomfield cites Town of Greece v. Galloway for the notion that offense is no longer enough for standing. — U.S. -, 134 S.Ct. 1811, 1826, 188 L.Ed.2d 835 (2014). But the words “standing,” “jurisdiction,” or “Article III” do not appear anywhere in the Galloway decision; that case only discussed the merits of an Establishment Clause claim. Id. at 1826-28. In the Tenth Circuit, we have decided multiple cases where direct contact with, religious monuments on public property sufficed for standing. See, e.g., Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1113-14 (10th Cir. 2010) (large white crosses on side of highway memorializing fallen state troopers); Green, 568 F.3d at 788, 793-94 (Ten Commandments monument erected on county courthouse lawn); O’Connor, 416 F.3d at 1218-19, 1222-23 (artwork on college campus that was offensive to Catholics).

Plaintiffs have had the requisite direct contact here. The Monument sits outside the main entrance to Bloomfield City Hall, which includes the utilities department where people pay water bills. It is at the front of the City Hall Lawn, and is visible from a major road through town (U.S. 550). Both Plaintiffs are polytheistic Wic-cans and testified they feel excluded by the Ten Commandments, particularly the first four commandments. And while Bloomfield argues that past exposure does not create an “imminent injury,” the facts found by the district court establish ongoing injuries and changes to Plaintiffs’ behavior resulting from the highly visible religious display. Felix- stopped going to City Hall to pay her water bills so she could avoid the Monument, but still sees it from the road five or six times a week. Coone drives past the Monument three or four times a week and sees it up-close every month when he goes to pay his water bill. That kind of exposure is more than enough for standing.

Bloomfield further argues that Plaintiffs lack standing because they have never read the text on the Monument. Merely seeing the Monument, Bloomfield says, is not contact that is sufficiently “frequent, direct, and imminent” for standing purposes. (Aplt. Br. 75). That proposition is supported only by inapposite case law from another federal circuit, and we de~ cline to bind ourselves thereby. Bloomfield offers no case from this Court that stands for the rule that a person must study an offensive monument in order to bring a claim in federal court. In fact, the injury requirement is often described as having to “view a religious object,” not examine it scrupulously. O’Connor, 416 F.3d at 1223 (emphasis added) (internal quotations omitted).- Once Plaintiffs learn the Monument is the Ten Commandments, they will know what it is whenever they view - it, even from afar. Plaintiffs have therefore established the kind of contact required for Article III standing.

II. Government speech

We next consider the nature of the speech. The Establishment Clause constrains government speech only. See Bd. of Educ. v. Mergens ex rel. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). Because of that limitation, Bloomfield argues the Monument is permissible because it is a private person’s speech existing in a public forum. But the Supreme Court has held that permanent monuments are government speech, regardless of whether a private party sponsored them. Pleasant Grove City v. Summum, 555 U.S. 460, 470-71, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (“Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land.”); see also Davenport, 637 F.3d at 1111, 1115 (“[T]he fact that [a private nonprofit organization], not Utah, owns the memorial crosses does not affect our determination of whether they are government speech.”).

The question, therefore, is whether the Monument is permanent. The Monument is over five feet tall weighing over 3,400 pounds, with a foundation of steel, concrete, and wood embedded fourteen inches in the ground. The foundation anchors the granite tablet with steel dowels to keep the Monument upright. Moreover, Forum Policy No. 1—under which the Monument was approved, built, and dedicated—specifically used the term “permanent” three times to describe the monuments it would allow. The Supreme Court did not detail what makes a monument “permanent” when it decided Summum, but we are confident the Ten Commandments here meets the standard.

It is no answer for Bloomfield to say that, under Forum Policy No. 2, the City makes donors reapply every ten years under threat of their monuments’ removal. Any monument can be removed with a big enough construction crew. But Bloomfield has no plans to remove the Monument and imposes no limit on how many ten-year periods will be permitted. The Monument here is like the crucifixes in American Atheists, Inc, v. Davenport, where even though a private organization resérved the right to remove the roadside crosses, they were “permanent enough to constitute government speech.” 637 F.3d at 1116. As a permanent monument on government property, the Monument here is government speech subject to the limitations of the First Amendment’s Establishment Clause.

III. Establishment Clause

The First Amendment reads, “Congress shall make no law respecting an establishment of religion[.]” U.S. Const. amend. 1. That rule also binds the state governments through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 14-15, 67 S.Ct. 504, 91 L.Ed. 711 (1947). In resolving a challenge to a Ten Commandments display, the Tenth Circuit applies the three-part test from Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), as refined by Justice O’Connor’s concurrence in Lynch v. Donnelly, 465 U.S. 668, 687-94, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). See Green, 568 F.3d at 796.

In Lemon, the Supreme Court set out a tripartite framework for Establishment Clause cases. To survive constitutional scrutiny, government action “(1) must have a secular legislative purpose, (2) must have a principal or primary effect that neither advances nor inhibits religion, and (3) must not foster an excessive government entanglement with religion.” Green, 568 F.3d at 796 (citing Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105).

Justice O’Connor’s modification, the so-called “endorsement test,” applies to the first and second prongs of Lemon. Under this modification, “the government impermissibly endorses religion if its conduct has either the purpose or the effect of conveying a message that religion or a particular religious belief is favored or preferred.” Green, 568 F.3d at 796 (enumeration omitted) (internal quotation marks omitted). In this case, because the district court ultimately relied on the effect prong, we confine our analysis to the effect of Bloomfield’s conduct, although, consistent with the district court’s approach, an apparent governmental purpose may inform the effect-prong analysis. Particularly in light of the circumstances surrounding the original installation of the Ten Commandments monument, we find Bloomfield im-permissibly gave the impression to reasonable observers that the City was endorsing religion.

What does it mean for conduct to have the “effect” of endorsing religion? The effect of endorsement is measured from the perspective of an “objective observer who is aware of the purpose, context, and history of the symbol.” Id. at 799 (quoting Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (10th Cir. 2008)). The “objective observer is presumed to know far more than most actual members of a given community.” Id. at 800 (internal quotation marks omitted). This imaginary person would be conscious of “the circumstances surrounding the Monument’s placement on the ... lawn, its precise location on the lawn and its spatial relationship to the other ... monuments, and also the ... community’s response to the Monument. In particular, the reasonable observer would be aware of [Bloomfield’s] religious motivation for seeking the erection of the Monument.” Id.

Although we are analyzing here only the “effect” prong of the Lemon test (with the “endorsement” gloss offered by Justice O’Connor), we do not ignore purpose. Id. (grounding its conclusion on Lemon’s “effect” prong, in part, on the observation that “a reasonable observer would be aware of [the sponsor’s] religious motivation for seeking erection of the monument” (emphasis added)); id. at 802 (noting that the government “left the impression that a principal or primary reason for the erection and maintenance of the display was religious”). In focusing on the effect of the Monument and its history, we ask, in part, how a reasonably perceived governmental purpose impacts the effect such a monument will have on a reasonable observer. See Borden v. Sch. Dist., 523 F.3d 153, 175 (3d Cir. 2008) (The endorsement test “does not focus on the government’s subjective purpose when behaving in a particular manner, but instead focuses on the perceptions of the reasonable observer.”) (quoted by Green, 568 F.3d at 799 (10th Cir.)); cf. McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 863, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (“A secret motive stirs up no strife and does nothing to make, outsiders of nonadher-ents[.]”); id. at 900-01, 125 S.Ct. 2722 (Sca-lia, J., dissenting) (“Because in the [McCreary majority’s] view the true danger to be guarded against is that the. objective observer would feel like an ‘outsider’ or ‘not a full member of the political community,’ its inquiry focuses not on the actual purpose of the government action, but the ‘purpose apparent from government action.’” (second emphasis added) (internal quotation marks and alterations omitted)). That makes sense because the focus of the endorsement test is on the message objectively communicated by the government’s conduct, and how that message might cause some community members to feel like outsiders. See Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring) (“Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”). If an objective observer has a reasonable impression that government conduct was religiously motivated, then the official action is more likely to have the “effect” of sending a message that nonadherents are “outsiders, not full members of the political community.” Id. Accordingly, a government’s motivation—as perceived by an objective observer—is relevant to whether the action had an effect of endorsing religion.

With that understanding, we now examine Bloomfield’s conduct, as it would be perceived by an objective observer who is aware of the apparent purpose and specific context of the Ten Commandments display.

A. Circumstances Manifesting Endorsement

The apparent purpose and context of the Monument’s installation would give an objective observer the impression of official religious endorsement. In arriving at this conclusion, we examine the text of the Monument, its placement on the lawn, the circumstances of its financing and installation, and the timing of this litigation.

1. The text of the Ten Commandments is unmistakably religious

We begin with the text. The language on the granite tablet—taken from the King James Version of the Bible—unquestionably has the effect of excluding the belief systems of nonadherents. See McCreary Cty., 545 U.S. at 851, 869, 125 S.Ct. 2722 (describing the “unmistakably . religious statement” conveyed by the King James Version of the Ten Commandments). Plaintiffs are a case in point. As polytheistic Wiccans, they believe in more than one deity. The first Commandment, however, admonishes the reader that “Thou shalt have no other gods before me.” (See App. Fig. 1). It is hard to imagine a religious statement that is more likely to give Plaintiffs the impression they do not belong.

¾ The location of the Monument suggests endorsement

We also find the Monument’s location problematic. It resides directly in front of Bloomfield’s principal government building. Moreover, it is not hidden or obscured by other monuments and it is clearly visible to any onlooker standing directly in front of the lawn—or even driving by on the highway. Cf. Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 599, 601-02, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (finding an Establishment Clause violation when the County set up a nativity scene on “the Grand Staircase, the ‘main’ and ‘most beautiful part’ of the building that is the seat of county government”) (abrogated on other grounds by Galloway, 134 S.Ct. at 1821). Here the Ten Commandments monument is located immediately next to the sidewalk leading into the municipal building of the City of Bloomfield. (See App. Fig. 2). An objective observer going to pay his water bill, or merely driving by in his car, would associate the Monument with the government, and accordingly glean a message of endorsement which the Establishment Clause proscribes.

8. The circumstances of the Monument’s financing and unveiling

If the Monument’s content and position only hint at the City’s endorsement, the circumstances of the approval, fundraising, and installation dispel any remaining doubt. In analyzing this context, we see strong parallels to our decision in Green v. Haskell County, where we found an Establishment Clause violation based on the government’s conduct when a Ten Commandments monument was originally installed. 568 F.3d at 790-92, 795-808. First, like in Green, here Mauzy initially fun-draised exclusively through local churches, rather than other local civic organizations. Id. at 790 (noting the Monument was sponsored by religious groups). Second, also as in Green, the dedication ceremony here was decidedly religious. Id. at 791 (observing that local pastors prayed with the audience and gave remarks). The occasion began with an invocation by a deacon of a local church, the flag-folding was set to religious narration, and Mauzy gave a speech riddled with Christian allusions, including an exhortation that “God and his Ten Commandments continue to protect us from our evil,” and other similarly religious overtures. (Aplt. App. 465). Third, unlike in Green (which makes this an even clearer case), the Monument was originally approved and erected in isolation and began as the focus of the government’s efforts. The Supreme Court has told us that “[wjhen the government initiates an effort to place [the Ten Commandments] alone in public view, a religious object is unmistakable.” McCreary, 545 U.S. at 869, 125 S.Ct. 2722; cf. ACLU of Ky. v. Mercer Cty., 432 F.3d 624, 638 (6th Cir. 2005) (finding no impermissible endorsement effect because the county “did not attempt to erect the monument in isolation ... before posting the ... display”). If a religious motivation is “unmistakable” merely when the Ten Commandments is erected alone, then there can be no doubt about the City’s apparent motivations here when it not only installed the Monument in isolation, but also did so with the initial financial backing of religious organizations and unveiled the Monument at a religious ceremony. Any reasonable and objective observer would glean an apparent religious motivation from these circumstances.

A The 'timing of this lawsuit

The timing of this lawsuit sheds light on whether a reasonable observer perceived Bloomfield’s conduct as endorsing religion. The Supreme Court decided two separate Ten Commandments cases on the same day with different outcomes, and the “determinative” factor for the different outcomes appeared to be litigation timing. In Van Orden v. Perry, the Court upheld a Ten Commandments monument which had stood legally uncontested for forty years. 545 U.S. 677, 702, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring in the judgment). In McCreary County v. ACLU of Kentucky, on the other hand, the Court invalidated a Ten Commandments display which was challenged mere months after it was posted. 545 U.S. 844, 851-52, 881, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). Justice Breyer, whose vote was the only one that changed in those cases, explained that the years of tranquility in Van Orden showed that “few individuals, whatever their system of beliefs, [were] likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion.” Van Orden, 545 U.S. at 702, 125 S.Ct. 2854 (Breyer, J., concurring in the judgment). He said that case “differ[ed] from McCreary, where the short (and stormy) history of the courthouse Commandments’ display demonstrates the substantially religious objectives of those who mounted them,” Id.' at 703, 125 S.Ct. 2854. This difference, he said, was “determinative.” Id. at 702, 125 S.Ct. 2854.

' The Tenth Circuit also found this to be a significant factor in Green, 568 F.3d at 806-07, where the plaintiff challenged the Ten Commandments display “less than one year after the Monument was unveiled.” Id. at 807. We said the timing difference was “striking,” and that the “prompt litigation response to the Monument” there added force to the conclusion that an objective observer viewed the display as a religious endorsement. Id. In our case, Plaintiffs here filed their lawsuit only seven months after the Monument was erected, In light of these Supreme Court and Tenth Circuit authorities, we conclude the timing factor weighs in Plaintiffs’ favor.

B. Mitigating Considerations

There are some considerations, however, that Bloomfield argues cut the other way. First, it contends a reasonable observer would attribute the message to Mauzy, not to Bloomfield. Second, even if the Monument’s context suggests City endorsement, the disclaimer would dispel any connection between Bloomfield and the Monument’s religious message. Third, the forum policy acted as a secularizing filter, so an objective observer would understand the City’s motivation to. be secular because the Monument was actually erected after the adoption of the policy. Fourth, the City installed other historical nonreligious monuments after erecting the Ten Commandments, so an objective observer would have to “stare into the sun” to miss the secular message communicated by the display as a whole. (Aplt. Br. 73). We find these arguments unpersuasive.

1. Attributing the message to Bloomfield

Whatever the nature of Mau-zy’s message, says Bloomfield, a reasonable observer would not attribute that message to the City. We disagree. First, as we explained earlier, when the government accepts a donated permanent monument and displays it on public property, it is adopting the message conveyed by that monument as the government’s own speech. Pleasant Grove City v. Summum, 555 U.S. 460, 470-72, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009); id. at 471, 129 S.Ct. 1125 (“[P]ersons who observe donated monuments routinely—and reasonably— interpret them as conveying some message on the property owner’s behalf.”). Second, on these facts it was especially apparent that Mauzy’s conduct enjoyed the City’s imprimatur. As the Supreme Court reminded us, when a religious object is displayed in the “main” part of an important government building, “[n]o viewer could reasonably think that it occupies th[at] location without the support and approval of the government.” Allegheny, 492 U.S. at 599-600, 109 S.Ct. 3086. Moreover, Mauzy was a city council member when the Ten Commandments was proposed and approved in 2007, even if his later actions were taken while he was a private citizen. The City knew of his motivation yet still approved the monument even over community members’ objections at the 2007 city council meeting. The City also stood by its decision after local newspapers began publishing letters of dissent by community members, and it held firm again at the 2011 city council meeting over a present and objecting city council member. And finally, two active City Council members donated to the monument’s construction through their church. Thus, viewing all these circumstances together, an objective observer would fairly attribute Mauzy’s religious message to the City.

2. The ineffectiveness of the disclaimers

It is true there are two disclaimers that purport to remove the City’s endorsement—one etched into the tablet itself, and another on a freestanding sign near the Monument. Bloomfield says these signs prevent the impression that the City supports the Monument’s religious message. Again, we disagree. First, we have held that a government’s decision to allow placement of a religious display on public land “cannot be overshadowed by its attempts to distance itself from the message conveyed by [that] display[].” Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1115-16 (10th Cir. 2010) (referring to a State’s disclaimer that it “neither approves or disapproves the memorial marker,” id. at 1112 (internal quotation marks omitted), in an Establishment Clause case about large memorial crosses erected on public land). So we are generally skeptical of a disclaimer’s ability to negate the more powerful statement of endorsement conveyed by a decision to place the Monument on government land.

These particular disclaimers confirm our skepticism. The first disclaimer engraved into the granite tablet is small and inconspicuous; a reasonable observer might have to get on his knees and inspect closely to glean its content. (See App. Fig. 1). It is not unlike the rapid-fire warnings at the end of prescription drug commercials, where it is obvious the company has slipped them in as a barely audible afterthought just to comply with the rules. So too here. We accordingly give little effect to that disclaimer.

The second disclaimer is more prominent and contains more information, but its fate is no different. The text begins, “The City has intentionally opened up the lawn around City Hall as a public forum where local citizens can display monuments that reflect the City’s history of law and government.” (Aplt. App. 287). This sentence contains a reference both to the law-and-government theme of the lawn, and the lawn’s character as a public forum. At the outset, we acknowledge the presence of other historical monuments here dampens the effect of endorsement—the presence of the Gettysburg Address, Declaration of Independence, and Bill of Rights could “change[ ] what viewers fairly understand to be the purpose of the display.” Lynch v. Donnelly, 465 U.S. 668, 692, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring). As we explain more fully below, however, whatever offsetting effect these later-added monuments have does not negate the plainly religious message communicated by the Monument itself, its prominent location in front of a main government building, and the circumstances of its financing and unveiling. Moreover, the characterization of the lawn as a “public forum” belies the position we have taken in this opinion. Following the Supreme Court’s command in Summum, we held public property displaying an essentially permanent monument is not a “public forum” as a matter of law. For the sign to claim otherwise, therefore, can have no legal significance.

The text of the disclaimer continues, “Any message contained on a monument does not necessarily reflect the opinions of the City, but are statements from private citizens.” (Aplt. App. 287) (emphasis added). Again, Summum says otherwise, but even if an objective observer did not know that, this language is too equivocal to communicate a message of non-endorsement. A reasonable person would read this and understand the Monument’s message might reflect the City’s views, just not “necessarily” so. Finally, the disclaimer says, “If you would like to display a monument in this forum, please contact the City Clerk, who can give you a copy of the ordinance that explains the procedures for displaying a monument.” (Id.). This is an invitation in name only. There is no evidence that anyone except Mauzy has come forward to accept it, nor that nonadherents could readily muster the resources necessary to erect opposing monuments of acceptable size and grandeur to warrant placement on this property, nor even that there is remaining room on the lawn to accommodate more monuments—let alone available space to erect a monument that competes with the Ten Commandments for visibility.

Context reveals what the disclaimer’s text attempts to obscure. The sign is not attached to any specific monument, rather it is a freestanding sign staked in the grass that refers, by its own terms, to all the monuments on the lawn. How can Bloomfield say the monuments, taken together, communicate the City’s secular message about law and government, while also maintaining that the monuments do not express the City’s views? We cannot reconcile those positions, and an objective observer reading this disclaimer would be similarly confused. Thus, the disclaimers offer no refuge to Bloomfield.

3. The forum policy does not negate the endorsement effect

The forum policy required monuments to “relate to the history and heritage of the City’s law and government.” (Aplt. App. 288). Therefore, all monuments approved under this policy, says Bloomfield, have the manifest purpose of advancing the City’s history and government, not to endorse any religion. And critically, Bloomfield argues it adopted the forum policy before the Ten Commandments was finally approved and erected in 2011. But as the district court properly noted, the 2011 approval of the Monument under the forum policy “occurred in the shadow” of the City’s original 2007 approbation— which was before the adoption of the forum policy. (Aplt. App. 463). It was the Monument’s original approval, the district court found, that likely prompted the forum policy in the first place. Because “reasonable observers have reasonable memories,” McCreary, 545 U.S. at 866, 125 S.Ct. 2722, the religious purpose apparent from that 2007 approval—which occurred without the secularizing, filter of the forum policy— would not be ignored. Furthermore, even if there were a secondary secular motive, that would not be inconsistent with the primary effect of religious endorsement conveyed by this particular monument. Therefore, this argument does not help Bloomfield,

Jf, Adding secular monuments tó the laum did not cure the taint

The Ten Commandments monument was originally proposed, approved, financed, and erected in isolation. But things changed. Shortly after the erection of the Ten Commandments, Bloomfield took actions that may have lessened-the original endorsement effect conveyed by the initial apparent purpose and circumstances. After the Ten Commandments stood alone on the lawn, the City approved Mauzy’s request for subsequent monuments depicting the Declaration of Independence, the Bill of Rights, and the Gettysburg Address. These additions could potentially be seen as “curative” measures by signaling to the objective observer that no religious endorsement is intended.

We begin by acknowledging that curative actions can be considered in determining whether a permanent monument has lost its initial religious effect due to subsequent events surrounding and impacting that monument. See McCreary Cty. v. ACLU, 545 U.S. 844, 873-74, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). In McCreary, the government erected a Ten Commandments display—with no accompanying secular objects—in a manner that impermissibly endorsed religion. Id. at 850, 866, 125 S.Ct. 2722. The government then attempted to cure the taint of that endorsement by adding other secular objects to the display (including the Magna Carta, ¡Declaration of Independence, state constitution, and others), and entitled the collection “The Foundations of American Law and Government Display.” Id. at 856, 125 S.Ct., 2722. The, Supreme Court did “not decide that the Counties’ past actions forever taint any effort on their part to deal with the subject matter.” Id. at 873, 125 S.Ct. 2722. Rather, it acknowledged that “courts are fully capable of adjusting ... relief to take account of genuine changes in constitutionally significant conditions.” Id. at 874, 125 S.Ct. 2722 (citing Ashcroft v. ACLU, 542 U.S. 656, 124 S.Ct. 2788, 159 L.Ed.2d 690 (2004) (noting the district court could account for changes in the legal and technological landscape of the Internet in assessing a First Amendment challenge)). In other words, it is possible that a government may begin with an impermissible purpose, or create an unconstitutional effect, but later take affirmative actions to neutralize the endorsement message so that “adherence to a religion [is not] relevant in any way to a person’s standing in the political community.” E.g., Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Con-nor, J., concurring); seé also Books v. City of Elkhart, 235 F.3d 292, 304 (7th Cir. 2000) (asking whether “the subsequent history of the [Ten Commandments] monument can be said to have in any way transformed [its] religious purpose”).

While recognizing the possibility of curative action, the McCreary Court dismissed the government’s curative measures there as insufficient to negate the initial endorsement of religion. 545 U.S. at 873-74, 125 S.Ct. 2722. It held that an objective observer “would probably suspect that the [government was] simply reaching for any way to keep a religious document on the walls [that are] constitutionally required to embody religious neutrality.” Id. at 873, 125 S.Ct. 2722 The later addition of nonreligious items did not create “a clear theme that might prevail over evidence of the continuing religious object,” and accordingly “[n]o reasonable observer could swallow the claim that the [government] had cast off the objective so unmistakable in the earlier display[ ];” Id. at 872, 125 S.Ct. 2722. From that case, we understand the inquiry to. be whether curative efforts are sufficient to overcome an objective observer’s impression that the display, considered in its full historical context, is a government endorsement of religion. Moreover, because the “endorsement” test asks whether government conduct has the “principal or primary” effect of endorsing religion, Green, 568 F.3d at 796-97, the standard for curative actions should be sufficient not only to persuasively present a primary nonreligious effect, but also to disassociate the monument from its previous religious effect. Accordingly, such curative measures should be sufficient to persuade an objective observer that the government’s “principal or primary” message is nonreligious.

What would be enough to meet this standard? The case law does not yield a ready answer. But from the above principles we conclude that a government cure should be (1) purposeful, (2) public, and (3) at least as persuasive as the initial endorsement of religion. It should be purposeful enough for an objective observer to know, unequivocally, that the government does not endorse religion. It should be public enough so that people need not burrow into a difficult-to-access legislative record for evidence to assure themselves that the government is not endorsing a religious view. And it should be persuasive enough to countermand the preexisting message of religious endorsement.

We cannot speculate what precise actions a government must take. But we are satisfied here that Bloomfield has not undertaken sufficiently purposeful, public, and persuasive actions to secularize the Monument’s previous “principal or primary” religious message. The City has never explicitly said this Monument was not for religious purposes, nor that it was •exhibited only for- its historical significance. It has not explained why the Ten Commandments tablet belongs with the other secular monuments. It has not signaled that it would reconsider the Monument in the face of controversy. In fact, it has taken no public, purposeful, and persuasive action to distance itself from the sponsor and his message other than two ineffective disclaimers—one small, the other vague. The only meaningful public action Bloomfield undertook was to add secular monuments around the Ten Commandments. But McCreary found that to be insufficient, and we agree.

It is true á cluster of other monuments surrounding the Ten Commandments can dampen the effect of endorsement. See Van Orden, 545 U.S. at 701-02, 125 S.Ct. 2854 (Breyer, J., concurring in the judgment) (finding significant that the Ten Commandments was surrounded by seventeen secular monuments and twenty-one historical markers, which suggests the State intended the “nonreligious aspects of the tablets’ message to predominate”). That makes sense, because when the government integrates the Ten Commandments into a unified secular display containing other nonreligious objects, it “changes what viewers may fairly understand to be the purpose of the display!.]” Lynch, 465 U.S. at 692, 104 S.Ct. 1355 (O’Connor, J., concurring) (finding the placement of a creche among other secular symbols of Christmas neutralized the religious endorsement effect). In light of this mitigating effect, as noted earlier, we credit the City’s effort to place the Ten Commandments in the company of other historical artifacts suggesting a law-and-government theme.

But that is not enough on its own. Cf. Green, 568 F.3d at 788-89 (finding impermissible religious endorsement even when the Ten Commandments resided on a lawn with other nonreligious historical monuments, e.g., war memorials); Books v. City of Elkhart, 235 F.3d 292, 294-96 (7th Cir. 2000) (finding endorsement even when the Ten Commandments stood on a lawn with two other secular historical monuments, and over a dissent that specifically argued these other monuments diluted the religious tablet’s endorsement effect, see id at 317 (Manion, J., dissenting)). And it was especially inadequate here because of the plain religious motivations apparent from the approval (approved alone), financing (sponsored entirely by churches), and unveiling (ceremony rife with Christian allusions) of the Monument. In light of those considerations, and the situational context of the Ten Commandments on the lawn, the City would have to do more than merely add a few secular monuments in order to signal to objective observers a “principal or primary” 'message of neutrality. Thus the impermissible taint of endorsement remains, and as we have said, nothing sufficiently purposeful, public, and persuasive was done to cure it.

CONCLUSION

Because we find an impermissible effect of endorsement that is insufficiently mitigated by curative efforts, we AFFIRM.

      . In finding an impermissible effect of religious endorsement in this case, the district court relied partly on observations about the apparent putpose of the monument. As we explain below, that makes sense. What a reasonable observer perceives as the purpose of a religious display is relevant to whether there is an “effect”—or impression—of government endorsement. In light of the relevance of perceived purpose to the “effect” prong of the Lemon test, our analysis appropriately accounts for the apparent motivations for erecting the display,

      . The First Commandment on the monument reads, "Thou shalt have no other gods before me”—a particularly disconcerting command for polytheists..

      . The D.C. Circuit held in Chaplaincy of Full Gospel Churches v. U.S. Navy (In re Navy Chaplaincy), 534 F.3d 756, 764-65 (D.C. Cir. 2008), that ‘‘[w]hen plaintiffs are not themselves affected by a government action except through their abstract offense at the message allegedly conveyed by that action, they have not shown injury-in-fact to bring an Establishment Clause claim_" (Emphasis omitted). This case does not apply here for two reasons. First, the harm alleged here is more concrete than merely an "abstract” objection to unconstitutional conduct. Second, In re Navy Chaplaincy expressly set itself apart from “religious display" cases. Id at 765 (qualifying that its holding applies "outside the distinct context of the religious display and prayer cases"); icL at 764 (“[W]e nonetheless find significant differences between plaintiffs’ case and the religious display and prayer cases.” (Citing as an example a Ten Commandments case)).

      . Plaintiffs’ arguments do not implicate the third prong of Lemon regarding excessive entanglement. Accordingly, we do not address it.

      . We do not assess the endorsement effect from Plaintiffs’ perspective, but rather from the view of an imaginary objective observer. Plaintiffs, however, are a good example of how public display of the Ten Commandments can risk making "outsiders” of "nonadherents.” Lynch, 465 U.S. at 687, 104 S.Ct. 1355 (1984) (O’Connor, J,, concurring).

      . While Mauzy' proposed the Monument as the "start of a series,” he did not initially seek permission to build any other monument, the City did not originally approve any other monuments, and Mauzy’s fundraising efforts centered exclusively on the Ten Commandments, We believe an objective observer would glean a religious motivation from these circumstances.

      . Mauzy proposed it would be the "start of a series,” (Aplt. App. 283), but as explained above, other context considerations suggest it was the sole focus of the City and Mauzy at the time it was installed.

      . There is another kind of change not implicated here, but worthy of mentioning. It is the kind of change wrought by the secularizing passage of time, which itself can be a curative palliative. Laurence H. Tribe, American Constitutional Law 1294-96 (2d ed. 1988) (citing examples where "history had removed the religious significance” of various traditions). Community attitudes evolve and people come to view a symbol differently, even if the emblem itself is unchanged. See ACLU of Ill. v. City of St. Charles, 794 F.2d 265, 271 (7th Cir 1986) (citing the holly wreath, the Christmas , tree, and the five-pointed star as examples of originally religious symbols which "have lost their Christian connotations”). Christmas wreaths are a good example—once representing the Crown of Thorns worn by Jesus Christ at his crucifixion, iA but now a common holiday decorative hanging. Acknowledging that "the interpretation of a monument can evolve” over time, the Supreme Court cited the Statue of Liberty as an example which had first been merely a symbol of international friendship, but had morphed into a global icon of freedom and opportunity. Summum, 555 U.S. at 477, 129 S.Ct. 1125. While the Ten Commandments may have evolved in some respects—having secured an important role in our Nation’s heritage—it has not lost its fundamentally religious character. See Van Orden, 545 U.S. at 688, 125 S.Ct. 2854 (2005) (plurality opinion) (acknowledging the "role played by the Ten Commandments in our Nation’s heritage"); id. at 690, 125 S.Ct. 2854 ("Of course, the Ten Commandments are religious—they were so viewed at their inception and so remain.”). Therefore, we instead address a different kind of change; the kind that occurs more rapidly, and does not involve shifting community attitudes, but rather is a change in government motivations or in the presentation of the disputed religious display itself.

      . As discussed above, the forum policy and the disclaimer referring to the lawn's historical artifacts of law and government do not accomplish this.


source: Caselaw Access Project

author: BALDOCK, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Elias Vega AMADO, Defendant-Appellant.

      Nos. 15-6162 & 16-6041
    United States Court of Appeals, Tenth Circuit.
    Filed November 14, 2016
    Susan M. Otto, Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.
    Steven W. Creager, Assistant United States Attorney (Mark A. Yancey, Acting United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
    Before GORSUCH, BALDOCK, and PHILLIPS, Circuit Judges.
   BALDOCK, Circuit Judge.

Defendant Elias Vega Amado appeals two district court decisions denying his respective motions for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Because these appeals do not require us to address the scope of the district court’s authority under § 3582(c)(2), we review its decisions only for an abuse of discretion. United States v. Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016). Wading through this imbroglio, we affirm the district court’s decision to deny Defendant’s first motion, vacate its decision to deny his second motion, and remand with instructions to dismiss the latter motion for want of subject-matter jurisdiction.

I.

Defendant, an illegal immigrant, was caught in 2013 with lots of guns, ammunition, drugs, money, and other incriminating evidence. Officials seized 525.4 grams of methamphetamine, 15.1 grams of cocaine, more than $425,000 in cash, at least 8 firearms, and loads of ammunition, including a hand grenade, all attributable to Defendant. The Government charged Defendant in a five-count indictment with (1) possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (2) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); (3) being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A); (4) possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and (5) reentering the United States illegally in violation of 8 U.S.C. § 1326(a)(1). Defendant pled guilty to Counts 1 and 5 of the indictment pursuant to a plea agreement. As part of his plea agreement, Defendant “knowingly and voluntarily waive[d] his right to ... move to modify under 18 U.S.C. 3582(c)(2) or some other ground, his sentence as imposed by the court[.]” Based on an offense level of 37 and a criminal history category of II, Defendant’s guideline range was 235 to 293 months’ imprisonment on the drug count. The district court sentenced Defendant to 240 months’ imprisonment on that count and a concurrent term of 120 months’ imprisonment (the maximum allowable) on the illegal reentry count. Consistent with the terms of his plea agreement, Defendant did not pursue a direct appeal.

Subsequently, Amendment 782 to the Sentencing Guidelines took effect on November 1, 2014. U.S.S.G. app. C suppl., amend. 782 at 64 (2015). Amendment 782 “reduced the base offense levels assigned to drug quantities in U.S.S.G. § 2D1.1, effectively lowering the Guidelines’ minimum sentences for drug offenses.” Kurtz, 819 F.3d at 1234 (internal quotations omitted). Application of Amendment 782 to Defendant’s drug conviction would reduce his offense level to 35 and his applicable guideline range -to 188 to 235 months’ imprisonment. Despite his plea waiver, Defendant filed a motion pursuant to 18 U.S.C. § 3582(e)(2) for a reduction of sentence. Section 3582(c)(2) empowers a district court to reduce a previously imposed sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission[.]” Importantly, a sentence reduction is not mandatory in the ease of a qualifying defendant. Rather, “the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” (emphasis added). The Government opposed Defendant’s motion both on the basis of his plea waiver and the seriousness of his criminal misconduct. The district court denied the motion without explanation and Defendant appealed.

Three months after filing his first appeal, Defendant moved to “hold briefing in abeyance.” According to Defendant, the Government had decided not to oppose any subsequent motion he might make for a sentence reduction pursuant to § 3582(c)(2) and Amendment 782. We tolled briefing. With his first appeal still pending, Defendant returned to district court and again moved for a reduction of sentence. And again the district court denied the motion. This time, however, the court explained in a written order not only why it denied Defendant’s second motion but also his first motion. The court opined that Defendant’s first motion did not present a close question. In his plea agreement, Defendant had waived his right to pursue a sentence reduction under § '3582(c)(2). Additionally, the seriousness of Defendant’s criminal conduct coupled with a previous conviction for illegal gun possession amply supported the Government’s original concern for public safety and á substantial sentence based on the § 3553(a) sentencing factors.

The district court then turned to Defendant’s second motion. The court initially questioned its jurisdiction over the motion, referring to the oft-cited rule that a notice of appeal generally divests the district court of jurisdiction over issues on appeal. See United States v. Battles, 745 F.3d 436, 448 (10th Cir. 2014). The court ultimately but reluctantly relied, however, on an obscure federal rule to exercise jurisdiction. Federal Rule of Criminal Procedure 37 is entitled “Ruling on a Motion for Relief That is Barred by a Pending Appeal.” Subsection (a), applicable here, provides:

. If a timely motion is made for relief that the [district] court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3)state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.

Fed. R. Crim. P. 37(a) (emphasis added).

Proceeding to the merits, the district court construed Defendant’s second motion for a sentence reduction as “in substance, a motion to reconsider the prior denial.” So construed, the court relied on our decision in United States v. Randall, 666 F.3d 1238 (10th Cir. 2011), and held the motion untimely because it was filed more than 14 days—the time period in which to pursue a criminal appeal—after denial of Defendant’s first motion. Accordingly, the district court denied Defendant’s second motion and he appealed a second time.

II.

We see no problem with the district court’s resolution of Defendant’s first § 3582(c)(2) motion for reduction of sentence on the basis of his plea waiver, so we need not address its merits ruling. Addressing his plea waiver, Defendant argues he could not have knowingly and voluntarily waived his right to seek a sentence reduction under § 3582(c)(2) based on Amendment 782 because the amendment did not exist at the time of his plea. We are unpersuaded.

In United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (per curiam) (en banc), we rejected the proposition that a defendant can never knowingly and voluntarily waive his appellate rights because he cannot possibly know in advance what errors a district court might* make in the process of arriving at an appropriate sentence. Id. at 1326. We observed that a defendant’s waiver of the legal consequences of unknown future events are commonplace and enforceable. Id. Hahn requires us to reject the indistinguishable proposition that Defendant could not have knowingly and voluntarily waived his right to file a motion for reduction of sentence pursuant to § 3582(c)(2) because he could not have known that the Sentencing Commission would enact Amendment 782. To rule otherwise would make Defendant’s promise not to seek relief under § 3582(c)(2) purely illusory. To say that Defendant’s waiver is effective only if he already qualified for a sentence reduction at the time he was sentenced is to say his waiver means nothing. See United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (“Defendants who appeal from sentences following plea agreements always point to unanticipated ... developments,” (emphasis in original)). In fact, Defendant’s waiver would have been unnecessary as presumably the district court would have sentenced him under the new, lower guideline range. Because (1) Defendant’s first § 3582(c)(2) motion fell within the scope of his § 3582(c)(2) plea waiver, (2) he knowingly and voluntarily waived his rights under the statute, and (3) a miscarriage of justice did not result from enforcement of the waiver, we affirm the district court’s decision to deny Defendant’s first motion. See Hahn, 359 F.3d at 1325 (outlining the requirements for an effective plea waiver).

Turning to Defendant’s second § 3582(c)(2) motion, the only problem we discern with the district court’s decision is that, after having ruled the motion was untimely, the court denied the motion rather than dismissed it. Before a district court may exercise jurisdiction under Fed. R. Crim. P. 37—and effectively sidestep the rule that a notice of appeal divests it of jurisdiction as to matters pending on appeal—the motion for relief must be timely. Id. R. 37(a). In Randall, we held “a motion for reconsideration, of the denial of a § 3582(c)(2) motion must be brought within the time for appeal.” Randall, 666 F.3d at 1242. According to Fed. R. App. P. 4(b), that time limit, albeit non-jurisdictional, is 14 days. Here, Defendant filed his second motion for reduction of sentence five months after the denial of his first motion. Because Defendant’s second motion was untimely, Rule 37 does not apply. Rather, Defendant’s notice of appeal from the denial of his first motion deprived the district court of jurisdiction to rule on his second motion.

To all this, Defendant asserts the district court erred in construing his second § 3582(c)(2) motion as a motion to reconsider. Without reference to any easelaw or other authority, Defendant tells us the motion was an entirely new one because the Government withdrew its objections to the relief he sought in his first motion. We think not. The district court acted well within its discretion in construing the motion as one for reconsideration. The substance of the motion, not its form or label, controls its disposition. Andersen v. United States, 298 F.3d 804, 807 (9th Cir. 2002). A proper motion to reconsider does not simply state facts previously available or make arguments previously made. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “Absent extraordinary circumstances, ... the basis for the second motion must not have been available at the time the first motion was filed.” Id. This is precisely the situation here. Defendant, in effect, moved the district court to reconsider its prior denial of a reduction of sentence on the ground that the Government no longer objected to such relief. Cf. id. (noting a motion for reconsideration is proper where the court has misapprehended a party’s position). Defendant’s second motion falls within the very definition of a motion to reconsider.

As to Appeal No. 15-6162, the decision denying Defendant’s first § 3582(c)(2) motion is AFFIRMED. As to Appeal No. 16-6041, the decision denying Defendant’s second § 3582(c)(2) motion is VACATED. That cause is remanded to the district court with instructions to DISMISS the motion for lack of subject-matter jurisdiction.

      . Section 3553(a) sets forth various factors a district court must consider in imposing sentence on a defendant. These include, among other factors, the nature of the offense and . characteristics of the defendant, as well as the need for the sentence to reflect the seriousness of the crime, provide adequate deterrence, protect the public, and provide the defendant with needed training or treatment.

      . In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court appears to have endorsed the approach outlined in Rule 37. There the district court denied defendant's timely motion for a new trial based on a lack of jurisdiction because the case was pending on direct appeal. The Supreme Court commented: "[Tjhat ruling was erroneous. The District Court had jurisdiction to entertain the motion and either deny the motion on its merits, or certify its intention to grant the motion to the Court of Appeals, which could then entertain a motion to remand the case.” Cronic, 466 U.S. at 667 n.42, 104 S.Ct. 2039.

      . In the alternative, the district court held § 3582(c)(2) did not possess it with "some sort of free-floating, continuing authority" to consider successive motions for a sentence reduction. We resolve Defendant's second appeal without addressing the court's alternative holding, one that undoubtedly goes to the scope of § 3582(c)(2).


text:
    James DURKEE, Plaintiff-Appellee, v. Sheriff John MINOR, in his individual capacity; Sergeant Ron Hochmuth, in his individual capacity, Defendants-Appellants.
    No. 16-1003
    United States Court of Appeals, Tenth Circuit.
    Filed November 14, 2016

      Melanie B. Lewis (Josh A. Marks with her on the brief), Berg, Hill, Greenleaf, Ruscitti LLP, Boulder, Colorado, for Defendants-Appellants.
    Andrew McNulty (David A. Lane with him on the brief), Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiff-Appellee.
    Before LUCERO, BALDOCK, and BACHRACH, Circuit Judges.
   BALDOCK, Circuit Judge.

Defendant John Minor is the Sheriff of Summit County, Colorado. Defendant Ron Hochmuth is a sergeant with the Summit County Sheriffs Department. Plaintiff James Durkee sued them both in their individual capacities under 42 U.S.C. § 1983. Plaintiff asserts Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when he was attacked by Ricky Michael Ray Ramos, a fellow inmate, at the Summit County Detention Center. In a written order, the district court denied Defendants qualified immunity in the context of then-motion for summary judgment and they appealed. Durkee v. Minor, 2015 WL 8145257 (D. Colo. 2015) (unpublished). To the extent we may exercise jurisdiction over the district court’s decision, we do so under 28 U.S.C. § 1291. See Lynch v. Barrett, 703 F.3d 1153, 1158-60 (10th Cir. 2013).

Both the Supreme Court and this Court have spoken repeatedly on the defense of qualified immunity and our jurisdiction to review the denial of the same prior to final judgment. See, e.g., Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Lewis v. Tripp, 604 F.3d 1221 (10th Cir. 2010). We will not reinvent the wheel here. For now, suffice to say Defendants’ claim to qualified immunity imposes the burden on Plaintiff to show Defendants violated a constitutional right that was clearly established under the facts of this case at the time of the violation. Lynch, 703 F.3d at 1159. In deciding whether Plaintiff has met his burden, we generally are not empowered to consider which facts the parties might be able to prove at trial. Id. at 1160 & n.2. Rather, we may ask only whether the facts the district court found support Plaintiffs claim that Defendants violated clearly established law. Id. at 1159. In other words, if the district court concluded a reasonable jury could find “certain specified facts” in favor of Plaintiff, we “usually must take them as true—and do so even if our own de novo review of the record might suggest otherwise as a matter of law.” Id. (quoting Lewis, 604 F.3d at 1225). Applying the appropriate legal standards, we affirm as to Defendant Hochmuth and reverse as to Defendant Minor.

I.

The facts the district court recited are sufficient to justify the denial of qualified immunity to Defendant Hochmuth. The district court’s factual statement, by which we are bound in the current context, reads as follows:

Inmate Ricky Michael Ray Ramos (“Ramos”) had a history of aggressive behavior at the jail, and .had been charged with several violations of jail rules on several occasions for threatening behavior towards jail staff, including a threat to stab a deputy in the neck, and toward other inmates, including the Plaintiff. Ramos had threatened Plaintiff shortly after Plaintiffs arrival at the jail, and Plaintiff requested that he be reassigned to another housing pod away from Ramos. After an argument between Ramos and Plaintiff, Plaintiff again expressed concern about Ramos’ aggression toward him, A deputy issued an incident report stating that “[flor future reference [Plaintiff] and Ramos cannot attend any programs together or ever be in the hallways or [booking] passing.” Jail staff, including Defendant Hochmuth, acknowledged and initialed receipt of the notice.
On December 28, 2012, Ramos was being escorted back from a court proceeding by Defendant Hochmuth, and was unshackled in the booking area of the jail, which is adjacent to the professional visitation room. At that time, Plaintiff was in the visitation room, meeting with a mental health counselor. There are windows in the visitation room and those meeting inside are visible to those in the booking area. Plaintiff states that he saw both Ramos and Defendant Hochmuth in the booking area through the visitation room window. Defendant Hochmuth contends he did not see the Plaintiff in the visitation room, Defendant Hoch-muth- proceeded to unshackle Ramos in the booking area, and instructed him to return to his housing pod. After taking one or two steps toward the housing pod door, Ramos suddenly turned around and ran into the visitation room through its unlocked door and assaulted Plaintiff. Although the altercation was brief, Plaintiff suffered a facial fracture from the assault.

Durkee, 2015 WL 8145257, at *1 (brackets in original).

In Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the Supreme Court held a prison official’s deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment. To establish deliberate indifference on the part of Defendant Hochmuth, Plaintiff must prove that Hochmuth knew of and disregarded a substantial risk to Plaintiff. See id. at 837-38, 114 S.Ct. 1970. In other words, Hoch-muth must have been aware of facts from which he could draw the inference that a substantial risk of serious harm to Plaintiff existed, and he must also have drawn the inference. Id. at 837, 114 S.Ct. 1970. Defendant Hochmuth does not dispute that he knew Ramos posed a substantial risk of serious harm to Plaintiff “generally.” Instead, Hochmuth tells us he never appreciated the risk to Plaintiff that Ramos posed while in the booking area because he did not see Plaintiff in the visitation room before he unshackled Ramos. Defendant Hochmuth insists that without specific knowledge of facts from which he could infer Plaintiff was at imminent risk of attack while in the visitation room, he could not have been deliberately indifferent to Plaintiffs safety.

Defendant Hochmuth is quite correct in suggesting that “an official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot ... be condemned as the infliction of punishment.” Id. at 838, 114 S.Ct. 1970. The Supreme Court has pointed out, however, that if the risk is obvious such that a reasonable man would realize it, a jury might infer that a defendant did in fact realize it. “[B]ut the inference cannot be conclusive, for we know that people are not always conscious of what reasonable people would be conscious of.” Id. at 842, 114 S.Ct. 1970 (internal quotations omitted). This means that where the facts as found by the district court show—as they do here—that a substantial risk of an inmate attack against Plaintiff was well-documented and expressly noted by prison officials prior to the attack in question, and those facts further show—as they do here—that Defendant Hochmuth was informed of and acknowledged the risk and was accompanying Ramos in an area where Ramos and Plaintiff were visible to each other, such facts are sufficient to permit a jury to find Hochmuth had actual knowledge of the risk and disregarded it. Id. at 842-43, 114 S.Ct. 1970.

As the district court recited the facts, the success of Defendant Hoch-muth’s defense of this suit may very well turn on whether a jury finds credible his testimony that he never saw Plaintiff in the visitation room. Of course, no one other than Hochmuth may testify to what he actually saw while preparing to unshackle Ramos in the booking area. But others may testify to the surrounding circumstances and what they witnessed. Obviously, Ramos saw Plaintiff through the large rectangular window providing visual access from the booking area into the visitation room. Plaintiff says he saw Ramos in the booking area through the same window. Based both on the district court’s factual findings and what Farmer teaches us, a jury could reject Defendant Hochmuth’s testimony and infer that he too saw Plaintiff in the visitation room before unshackling Ramos. “[W]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Id. at 842, 114 S.Ct. 1970. The question whether Defendant Hochmuth was aware of facts from which he drew the inference that a risk of harm to Plaintiff existed while in the visitation room is for the factfinder.

II.

While the district court’s factual findings are sufficient at this stage to overcome Defendant Hochmuth’s qualified immunity defense, we cannot say the same for its findings as they bear upon Defendant Minor’s defense. Those findings are as follows: (1) Defendant Minor was responsible for managing the staff at the detention center and for implementing the policies and procedures under which the center operated; (2) the policy of the detention center was to unshackle inmates in the booking area adjacent to the unlocked professional visitation room once they returned from court; and (3) Defendant Minor undertook a post-assault review and determined further inquiry into the conduct of Defendant Hochmuth was unwarranted. Based on these facts, the court concluded: “A fact finder could impose liability against Defendant Minor in his individual capacity by virtue of his control or direction of the jail staff, or by his failure to properly supervise staff members, including Defendant Hochmuth. Accordingly, summary judgment on this issue is precluded.” Durkee, 2015 WL 8145257, at *4.

The district court was wrong to conclude—based on its limited findings— that a jury could hold Defendant Minor liable to Plaintiff in his individual capacity. Plaintiffs claim against Defendant Minor in his individual capacity amounts to a claim of direct supervisory liability. To establish such liability, Plaintiff must show Defendant Minor’s “direct personal responsibility” for the claimed deprivation of his. Eighth Amendment right. Porro v. Barnes, 624 F.3d 1322, 1327 (10th Cir. 2010) (emphasis in original) (quoting Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)). “Simply put, there’s no special rule of [individual capacity] liability for supervisors. The test for them is the same as the test for everyone else.” Id. at 1328. Accordingly, Plaintiff must prove Defendant Minor caused his injury with a state of mind amounting to deliberate indifference for Plaintiffs safety. See Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) (recognizing the elements of individual supervisory liability as (1) personal involvement, (2) causation, and (3) a culpable state of mind equal to that required to establish the underlying constitutional violation).

In Dodds, we decided a sheriff could be held individually liable for his deliberately indifferent maintenance of a policy that prevented arrestees from posting preset bail for no legitimate reason, in violation of the Fourteenth Amendment’s liberty guarantee. Id. at 1206. Plaintiff tells us the parallels of his case to Dodds are clear. To us those parallels are clear as mud. Dodds involved a policy or procedure that was constitutionally infirm in the overwhelming majority of its applications, if not on its face. See also Wilson v. Montano, 715 F.3d 847, 857-58 (10th Cir. 2013) (relying on Dodds to hold a warden and sheriff could be held individually liable for maintaining a policy permitting prolonged warrantless detentions in violation of the Fourth Amendment). The policy Plaintiff challenges here presents us with no such dilemma. The detention center’s policy of unshackling inmates in the booking area next to the visitation room does not appear problematic on its face; nor has it proven problematic in its application—at least on the record before us—save the present isolated incident. See Lynch, 703 F.3d at 1160 n.2 (where a district court’s findings are insufficient to withstand a qualified immunity defense, the court of appeals may look behind the district court’s order to ascertain whether the record supports plaintiffs claim).

Apart from a supervisor’s promulgation of the sort of policy at issue in Dodds, some of our sister circuits have held, a supervisor may cause a constitutional violation when he has actual knowledge of subordinates’ past constitutional violations but does nothing to stop future occurrences. Dodds, 614 F.3d at 1212 (Tymkovich, J., concurring) (citing cases). Nothing in the present record suggests, however, that the policy in question here led to any constitutional violations prior to Ramos’s assault on Plaintiff. That Defendant Minor undertook a post-assault review and determined further inquiry into the conduct of Defendant Hochmuth was unwarranted does not assist Plaintiff. As we explained in Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir. 2009), “basic principals of linear time prevent us from seeing how conduct that occurs after the alleged violation could have somehow caused that violation.” (emphasis in original).

We suppose cases of supervisory liability under § 1983 are not necessarily limited to those two factual scenarios we have just outlined. But whether Plaintiffs theory of causation is based on an improper or inadequate policy or something else such as failure to train or supervise, the fact remains that - he must still present record evidence sufficient to permit a jury to find that Defendant Minor caused his injury while deliberately indifferent to his safety. This Plaintiff has not done, which perhaps accounts for the district court’s inadequate findings. That Plaintiff misunderstands his burden is well illustrated by his argument to. both the district court and us that Defendant Minor’s “inadequate training and supervision of Hochmuth and others at the jail led to Hochmuth’s deliberate indifference to [Plaintiffs] safety.” Apellee’s Br. at 35 (emphasis added); see also Durkee, 2015 WL 8145257, at *3. Plaintiffs argument in support of his individual liability claim against Defendant Minor amounts to little more than Minor should be held liable because he was in charge of the detention center. This simply is not enough to hold Defendant Minor liable in his individual capacity.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Plaintiff's repeated reference in his brief to an erroneous legal standard that would hold Defendant Hochmuth liable for an Eighth Amendment violation if he should have known Plaintiff was in the visitation room is unacceptable, To establish deliberate indifference, the law requires actual knowledge. Farmer plainly tells us so: "We ... hold that a prison official cannot be found Hablé under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970 (emphasis added).

      . To complete our qualified immunity analysis as to Defendant Hochmuth, we easily conclude, based on the district court’s findings and the state of the law during the relevant time period, that a reasonable officer cognizant of Plaintiffs presence in the unsecured visitation room would have understood that unshackling Ramos in the booking area posed a substantial risk of harm to Plaintiff in violation of the Eighth Amendment. See Lynch, 703 F.3d at 1160-61. Therefore, the law on which Plaintiff bases his claim against Hoch-muth was clearly established at the time of the subject incident.

      . While Plaintiff also sues Defendant Minor in his official capacity, we have no jurisdiction over the district court’s decision to deny him summary judgment in such capacity. See Cox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015).

      . Defendants’ outstanding motion to file their Appendix Vol. II under seal is GRANTED.