Occupy Sacramento et al v. City of Sacramento et al
Filing
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MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 11/4/11: Plaintiffs' Motion for a Temporary Restraining Order is DENIED 10 . (Kaminski, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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OCCUPY SACRAMENTO, et al.,
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No. 2:11-cv-02873-MCE-GGH
Plaintiffs,
v.
MEMORANDUM AND ORDER
CITY OF SACRAMENTO, et al.,
Defendants.
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Before the Court is Plaintiffs’ Amended Motion for Temporary
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Restraining Order [ECF No. 10].
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For the reasons that follow, the
Motion is DENIED.
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BACKGROUND
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Plaintiffs are participants in a local movement known as
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“Occupy Sacramento,” which is loosely affiliated with the ongoing
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“Occupy Wall Street” demonstrations.
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have been protesting, among other things, social and economic
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inequality issues for the past several months.
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The “Occupy” demonstrators
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Starting on Thursday, October 6, 2011, and continuing to the
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present, the “Occupy Sacramento” participants have congregated in
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Cesar Chavez Plaza Park (“the Park”), which is a community park,
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approximately 2.5 acres in size, in downtown Sacramento and
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located across the street from City Hall.
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Occupy Sacramento participants began to gather and set up
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structures in the Park, representatives of the Sacramento Police
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Department advised the demonstrators that the Park would close at
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11:00 p.m. pursuant to Sacramento City Code § 12.72.090.
On October 6, when the
That
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ordinance, which was enacted in its current form in 1981, states,
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in full:
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12.72.090 Remaining or loitering in parks during
certain hours prohibited.
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A.
No person shall remain or loiter in any public
park:
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1.
Between the hours of midnight Friday or
Saturday and five a.m. of the following day;
and
2.
Between the hours of eleven p.m. Sunday
through Thursday and five a.m. of the
following day.
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B.
The prohibitions contained in subsections (A)(1)
and (A)(2) of this section shall not apply:
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1.
To any person on an emergency errand;
2.
To any person attending a meeting,
entertainment event, recreation activity,
dance or similar activity in such park
provided such activity is sponsored or
co-sponsored by the department of parks and
community services or a permit therefor has
been issued by the department of parks and
community services;
3.
To any person exiting such park immediately
after the conclusion of any activity set
forth in subsection (B)(2) of this section;
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4.
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C.
The director, with the concurrence of the chief of
police, may designate extended park hours for any
park when the director determines that such
extension of hours is consistent with sound use of
park resources, will enhance recreational
activities in the city, and will not be
detrimental to the public safety or welfare. The
prohibitions contained in subsections (A)(1) and
(A)(2) of this section shall not apply to any
person present in a public park during extended
park hours designated pursuant to this subsection.
D.
The chief of police, with the concurrence of the
director of parks and community services, may
order any park closed between sunset and sunrise
when he or she determines that activities
constituting a threat to public safety or welfare
have occurred or are occurring in the park and
that such closing is necessary to protect the
public safety or welfare. At least one sign
designating the sunset to sunrise closing shall be
installed prominently in the park. When a park is
ordered closed between sunset and sunrise, it is
unlawful for any person to remain or loiter in
said park during said period. (Prior code §
27.04.070).
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To any peace officer or employee of the city
while engaged in the performance of his or
her duties.
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Later on October 6, attorney Mark E. Merin (“Merin”), the
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attorney for the Plaintiffs in the present action, sought a
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temporary restraining order (“TRO”) in Sacramento County’s
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Superior Court.
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to Defendants’ Opposition (“Witter Decl.”).
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on behalf of the specific Plaintiffs in this action, the ex parte
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Request for TRO sought to restrain and prevent Sacramento’s Chief
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of Police from enforcing § 12.72.090 and from citing or arresting
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persons remaining in the Park after hours.
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that unsuccessful attempts had been made to contact both the
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Chief of Police and the City Manager to request an extension or a
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permit granting the extension.
See Exh. B to Decl. of Brett M. Witter attached
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Although not brought
The Request averred
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At 8:30 p.m. on October 6, Sacramento County Superior Court
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Judge Lloyd Connelly heard oral argument on the Request from
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Merin and Supervising Deputy City Attorney Brett Witter.
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Exh. C to Witter Decl.
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issued an Order denying the Request for TRO.
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See
On Friday, October 7, Judge Connelly
Id.
In his Order, Judge Connelly concluded that the Petitioner
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had (1) “failed to establish that it would suffer irreparable
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harm if the temporary restraining order was not issued, as the
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demonstration could be held during normal park hours;” and (2)
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“not reasonably attempted to apply for a permit to use the park
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for camping purposes, as Petitioner made no attempt to request
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such a permit until at least 3:30 p.m. on October 6, 2011.”
Id.
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Plaintiffs contend that the City’s Police Department has not
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permitted demonstrators to remain or loiter in the Park after the
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hours set forth in § 12.72.090.
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night before closing, they must pack up their property and move
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out of the park or face arrest.
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have been arrested and taken into custody since October 6 for
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violating § 12.72.090.
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Plaintiffs assert that every
They allege that over 50 people
Plaintiffs do not allege that they attempted to obtain a
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permit or an extension of the park hours from Sacramento’s
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Director of the Department of Parks and Recreation (“Director”),
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as set forth in § 12.72.090(C), prior to filing this action.
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However, on Thursday, October 24, Merin did send a letter to the
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City Manager, the City Attorney and the City Council (hereinafter
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“Oct. 24 Merin Letter”).
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///
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See Exh. 1 to First Amended Complaint.
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In essence, Merin’s letter stated that (1) the City’s enforcement
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of § 12.72.090 violated the demonstrators’ First Amendment
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rights; (2) he was prepared to file a lawsuit to validate those
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rights; and (3) he encouraged these various officials to permit
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the demonstrators to remain in the Park.
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Id.
On Wednesday, November 1, Merin filed the instant action,
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including both the Complaint and the Motion for TRO.
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Complaint and the Motion for TRO, Plaintiffs’ generally allege
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that § 12.72.090 is unconstitutional on its face and as applied
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to them and that Defendants have violated Plaintiffs’ First and
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Fourteenth Amendment rights by enforcing § 12.72.090.1
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Complaint seeks a TRO, a preliminary injunction, and a permanent
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injunction.
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a TRO.
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Plaintiffs filed their Reply.
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In both the
The
Presently before the Court is Plaintiffs’ Motion for
On November 2, Defendants filed their Opposition, and
The Court held a hearing on Plaintiffs’ Motion for TRO on
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Thursday, November 3.
Of note, at the hearing, counsel for the
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parties advised the Court that, earlier in the day, Plaintiffs
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filed an application for an overnight use permit for the Park
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with the Department of Parks and Recreation and that the Director
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had promised to review the application on an expedited basis.
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Although the ordinary turnaround time for such an application is
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apparently ten days, the Director promised a decision by Monday,
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November 7.
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declined to dismiss or delay the Court’s decision as to the
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pending Motion for TRO.
Despite the pending application, both parties
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1
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Plaintiffs amended their complaint and Motion for TRO on
November 2.
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After hearing oral argument on the issues, the Court issued
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a verbal Order denying the Motion, but also promised a written
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Order would follow.
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briefing schedule and hearing date for Plaintiffs’ Complaint.
At the hearing, the Court also established a
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STANDARD
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The purpose of a temporary restraining order is to preserve
the status quo pending the complete briefing and thorough
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consideration contemplated by full proceedings pursuant to a
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preliminary injunction.
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Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining
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orders “should be restricted to serving their underlying purpose
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of preserving the status quo and preventing irreparable harm just
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so long as is necessary to hold a hearing, and no longer”); see
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also Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131
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(9th Cir. 2006); Dunn v. Cate, 2010 WL 1558562 at *1 (E.D. Cal.
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2010).
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See Granny Goose Foods, Inc. v.
Issuance of a temporary restraining order, as a form of
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preliminary injunctive relief, is an extraordinary remedy, and
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Plaintiffs have the burden of proving the propriety of such a
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remedy.
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general, the showing required for a temporary restraining order
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and a preliminary injunction are the same.
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Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7
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(9th Cir. 2001).
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See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
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In
Stuhlbarg Int’l Sales
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The party requesting preliminary injunctive relief must show
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that “he is likely to succeed on the merits, that he is likely to
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suffer irreparable harm in the absence of preliminary relief,
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that the balance of equities tips in his favor, and that an
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injunction is in the public interest.”
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Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc.
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v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting same).
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The propriety of a TRO hinges on a significant threat of
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irreparable injury that must be imminent in nature.
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Winter v. Natural
Caribbean
Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
Alternatively, under the so-called sliding scale approach,
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as long as the Plaintiffs demonstrate the requisite likelihood of
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irreparable harm and show that an injunction is in the public
14
interest, a preliminary injunction can still issue so long as
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serious questions going to the merits are raised and the balance
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of hardships tips sharply in Plaintiffs’ favor.
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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011)
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(concluding that the “serious questions” version of the sliding
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scale test for preliminary injunctions remains viable after
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Winter).
Alliance for
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ANALYSIS
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A.
Procedural TRO Issues
1.
Undue Delay
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Before turning to the merits of Plaintiffs’ Motion for TRO,
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the Court finds that denial of their Motion is warranted here on
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procedural grounds alone.
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Plaintiffs bear the burden of showing that, among other things,
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they are likely to suffer irreparable injury and the injury must
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be imminent in nature.
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Rule 231(b) which governs the timing of motions for TROs, states,
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in full:
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Caribbean Marine, 844 F.2d at 674.
Local
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In considering a motion for a temporary restraining
order, the Court will consider whether the applicant
could have sought relief by motion for preliminary
injunction at an earlier date without the necessity for
seeking last-minute relief by motion for temporary
restraining order. Should the Court find that the
applicant unduly delayed in seeking injunctive relief,
the Court may conclude that the delay constitutes
laches or contradicts the applicant’s allegations of
irreparable injury and may deny the motion solely on
either ground.
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Plaintiffs’ contention is that a TRO is necessary because
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every night their First Amendment rights are being violated when
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the Police enforce the allegedly unconstitutional regulation, §
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12.72.090.
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for TRO filed by Merin on October 7, Merin did not file the
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instant action in this Court until November 1, some twenty-five
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days after Judge Connelly’s Order.
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allege that approximately fifty people have been arrested for
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violations of § 12.72.090.
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preliminary injunction, without resorting to the extraordinary
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form of relief that is a TRO, in the interim period between
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October 7 and November 1.
Although the Superior Court denied a similar request
In the interim, Plaintiffs
Plaintiffs could have sought a
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Furthermore, Plaintiffs have not demonstrated to this
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Court’s satisfaction that they were pursuing their rights before
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State or City officials in the interim between Judge Connelly’s
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Order and their filing the present action.
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In their brief, they do not aver that they pursued an appeal from
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Judge Connelly’s denial of their TRO and they did not file an
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application with the Director for a permit to extend the Park
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hours, despite Judge Connelly’s statement that Merin’s failure to
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do so was a basis for denying the Request for TRO.
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evidence of action by Plaintiffs to prevent the City from
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enforcing § 12.72.090 prior to filing this action is the Oct. 24
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Merin Letter, in which he requested the City officials stop
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enforcing the ordinance.
The only
That letter, however, was not directed
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to the Director and it does not appear to be seeking a permit to
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extend the Park hours.
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by counsel’s explanation of his activities during the time
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between Judge Connelly’s order and the filing of this action,
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which he provided at oral argument on November 3.
Furthermore, the Court was not persuaded
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The twenty-five day lapse between Judge Connelly's Order and
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the filing of this action, coupled with the number of arrests for
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violations of the ordinance, and Plaintiffs’ apparent failure to
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diligently
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their claim that the extraordinary remedy of a TRO is warranted.
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Stated another way, the Court is of the view that the twenty-five
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day delay between Judge Connelly’s Order and the filing of this
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action contradicts Plaintiffs’ claims of irreparable injury if
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the TRO does not issue and that under the circumstances here,
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twenty-five days constitutes undue delay.
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Caribbean Marine, 844 F.2d at 674.
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pursue other forms of relief, tends to undermine
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See L.R. 231(b);
2.
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Status Quo
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The second preliminary concern for the Court relates to the
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purpose of a TRO.
Specifically, a TRO’s purpose is to preserve
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the status quo pending complete briefing by the parties and full
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proceedings.
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quo is that § 12.72.090 has been in effect since 1981 and since
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October 6, the day that Occupy Sacramento started to congregate
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in the Park, the City, through its Police Department, has
See Dunn, 2010 WL 1558562 at *1.
Here, the status
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indicated its intention to enforce the ordinance and has actively
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enforced it by arresting demonstrators who have refused to comply
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with § 12.72.090’s terms.
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is currently a thirty-year old ordinance which is being enforced
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by the government.
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In sum, the status quo is that there
So, Plaintiffs’ Motion for TRO does not seek to maintain the
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status quo, rather it seeks to alter the status quo: if granted,
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the City would be precluded from enforcing § 12.72.090.
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to the terms of the ordinance and present practice, Plaintiffs
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would then be able to maintain an around-the-clock presence in
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the Park.
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status quo.
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Contrary
This would be a material change of position from the
The situation here is therefore significantly different from
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the one faced by “Occupation” demonstrators in some other cities
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where the demonstrators have recently sought to obtain a TRO.
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For example, in Nashville, Tennessee, officials allegedly enacted
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a policy after demonstrators began gathering in a public space
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that established a curfew and permit regulations on public land.
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There, a federal district court granted Plaintiffs a TRO.
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A similar situation appears to be unfolding in Trenton, New
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Jersey, where officials established rules prohibiting visitors to
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a memorial from bringing certain property onto the public land
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after the demonstrators began congregating.
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yet known whether the court will grant the TRO, the Nashville and
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Trenton cases are instructive because in both those cases, the
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status quo was allegedly altered by the officials’ enactment of
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new rules following the arrival of the “Occupy” protestors on
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public land.
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Although it is not
In contrast, here, § 12.72.090 predates the Occupy
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Sacramento demonstrations by thirty years, there is no allegation
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that the City was not enforcing it prior to October 6, when
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Plaintiffs began congregating in the Park, and there is evidence
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that the City has been consistently enforcing the ordinance since
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the demonstrations started.
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quo here, means continuing to enforce § 12.72.090.
Therefore, maintaining the status
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Plaintiffs, however, assert that the status quo is their
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constitutional right to free speech and free association and that
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the status quo is violated when the City enforces § 12.72.090,
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which they contend is facially unconstitutional because it
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violates their First Amendment rights.
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argument circular and unpersuasive, as it assumes the truth of
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the matter at issue.
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§ 12.72.090 is unconstitutional, therefore every time the
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ordinance is enforced, Plaintiffs’ established rights are
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violated.
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problem is that it has not been established at this time that §
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12.72.090 is unconstitutional.
The Court finds this
Specifically, this argument assumes that
Even if the Court were to accept this logic, the
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As will be discussed further below, the fact that an
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ordinance stifles speech or expression does not necessarily lead
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to the conclusion that it is unconstitutional: courts have
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frequently upheld such ordinances, so the mere fact that the
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City’s enforcement of § 12.72.090 does not necessarily lead to
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the conclusion that the ordinance is unconstitutional.
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Therefore, the Court cannot conclude that each time the City
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enforces § 12.72.090, the status quo is disturbed and a TRO is
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justified.
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In sum, the Court is also not persuaded that the purpose of
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Plaintiffs’ Motion is to maintain the status quo, which is the
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underlying purpose of a TRO.
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However, the Court is loathe to deny Plaintiffs’ Motion solely on
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procedural grounds, so the Court also considers the substance of
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Plaintiffs’ Motion.
See Dunn, 2010 WL 1558562 at *1.
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B.
Substantive TRO Issues
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Although Plaintiffs contend in their Complaint that
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§ 12.72.090 is unconstitutional both on its face and as applied,
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at oral argument they conceded that, at this stage of the
22
litigation, they are relying solely on their facial challenge.2
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Again, to succeed on their Motion for a TRO, Plaintiffs must
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establish that: (1) they are likely to succeed on the merits;
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Plaintiffs concede that they do not have evidence to
support an as-applied challenge at the present time, but suggest
that discovery may uncover evidence to support this claim.
Because Plaintiffs do not pursue this claim at the present time,
the Court does not address it here.
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(2) they are likely to suffer irreparable harm absent preliminary
2
relief; (3) the balance of equities tips in their favor; and
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(4) an injunction is in the public interest.
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20.
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standard set forth in Cottrell.
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Winter, 555 U.S. at
Or, in the alternative, they must satisfy the sliding scale
632 F.3d at 1131-36.
Here, the Court concludes that Plaintiffs have failed to
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meet their burden under either the Winter or Cottrell standard.
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Plaintiffs have not met their burden of showing a likelihood that
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they will succeed on the merits because § 12.72.090: appears to:
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(1) be content neutral, (2) be narrowly-tailored, (3) support a
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substantial government purpose; (4) provide the Director with
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constitutionally sufficient discretion; and (5) be
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constitutionally sufficient even though the City may be able to
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exempt itself from the permitting regulations.
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Plaintiffs have not met their burden of showing irreparable har
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or showing that the balance of equities or public interest
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necessitate the extraordinary remedy of a TRO.
Furthermore,
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1.
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Success on the Merits
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As a general matter, a facial challenge is a challenge to an
22
entire legislative enactment or provision.
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Park, 146 F.3d 629, 635 (9th Cir. 1998)(explaining that a statute
24
is facially unconstitutional if “it is unconstitutional in every
25
conceivable application, or it seeks to prohibit such a broad
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range of protected conduct that it is unconstitutionally
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overbroad”).
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Foti v. City of Menlo
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“[T]he Supreme Court has entertained facial freedom-of-expression
2
challenges only against statutes that, ‘by their terms,’ sought
3
to regulate ‘spoken words,’ or patently ‘expressive or
4
communicative conduct’ such as picketing or handbilling.”
5
Roulette v. City of Seattle, 97 F.3d 300, 303 (9th Cir. 1996)
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(upholding an ordinance passed by Seattle that prohibited people
7
from sitting or lying on public sidewalks in certain commercial
8
areas between 7:00 a.m. and 9:00 p.m., finding that neither
9
activity “is integral to, or commonly associated with,
10
expression”).
11
Id. at 303-304 (citation omitted).
The government may impose content-neutral time place and
12
manner restrictions on speech, provided that they are narrowly
13
tailored to advance a significant governmental interest, and
14
leave open ample, alternative avenues of communication.
15
v. Chicago Park Dist., 534 U.S. 316, 323 n.3 (2002); Clark v.
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Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
17
The level of scrutiny depends on whether the challenged ordinance
18
is “related to the suppression of free expression.”
19
Johnson, 491 U.S. 397, 403 (1989) (internal quotation marks and
20
citation omitted).
21
then courts apply strict scrutiny; but if it hits speech without
22
having aimed at it, then courts apply the O’Brien intermediate
23
scrutiny standard.”
24
2011) (citing United States v. O’Brien, 391 U.S. 367, 377 (1968).
25
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Thomas
Texas v.
“If a law hits speech because it aimed at it,
Nordyke v. King, 644 F.3d 776, 792 (9th Cir.
14
1
Plaintiffs do not concede that § 12.72.090 is content-
2
neutral, but even if it is, they contend that § 12.72.090 cannot
3
survive intermediate scrutiny because it is not narrowly
4
tailored; is over-broad and under-inclusive; does not advance a
5
significant governmental interest; it provides no meaningful
6
limits on the Director’s discretion; and because it exempts the
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City from the permitting requirements, which could lead to
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viewpoint discrimination.
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Plaintiffs have not persuaded the Court that they are likely
10
to succeed in their facial challenge.
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to be a narrowly-tailored and content-neutral time, place and
12
manner restriction that applies to anyone who wishes to use the
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park during certain hours.
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Section 12.72.090 appears
First, Plaintiffs have not met their burden of demonstrating
15
that § 12.72.090 is not content-neutral.
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§ 12.72.090 appears to be content neutral: it does not make any
17
reference to speech and it merely regulates the hours that anyone
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can remain or loiter in City parks.
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the direct effect of limiting speech and expressive activities in
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City parks during those hours during which people are not
21
permitted to remain or loiter in the parks, “reasonable time,
22
place, or manner regulations normally have the purpose and direct
23
effect of limiting expression but are nevertheless valid.”
24
Clark, 468 U.S. at 294 (citation omitted).
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alleged any content-based purpose behind § 12.72.090 and it is
26
unlikely that they will be able to do so.
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On its face,
While § 12.72.090 does have
Plaintiffs have not
1
Second, Plaintiffs have not presented any compelling
2
evidence that § 12.72.090 is not narrowly-tailored.
3
of speech or speech-related conduct is overbroad–and therefore
4
facially invalid–if it punishes a substantial amount of protected
5
speech, judged in relation to the regulation’s plainly legitimate
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sweep.
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must be narrowly tailored to advance a government’s legitimate,
8
content-neutral interest, but need not be the least restrictive
9
or least intrusive means of doing so.
Virginia v. Hicks, 539 U.S. 113 (2003).
A regulation
The regulation
Ward v. Rock Against
10
Racism, 491 U.S. 781, 798 (1989).
11
§ 12.72.090 is either over-broad or under-inclusive is not
12
compelling.
13
Plaintiffs argument that
The ordinance is limited to City parks and limited to five
14
or six hours a day between the hours of 11:00 p.m. and 5:00 a.m.
15
Section 12.72.090 does not prevent Plaintiffs from conducting
16
their expressive activities twenty-four hours a day on adjoining
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sidewalks or in other public spaces if they so choose.
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prevents them from doing so by remaining or loitering in City
19
parks after the hours established by the ordinance if they do not
20
have a permit to do so.
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is it under-inclusive.
22
parks and not to sidewalks or other public places does not lead
23
inevitably to the conclusion that the hours restrictions are
24
intended to stifle free expression in City parks, as Plaintiffs
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suggest.
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It is therefore not over-broad.
It just
Neither
The fact that § 12.72.090 applies to
16
1
Third, § 12.72.090 appears to support a substantial
2
government interest.
3
the following government interests for this ordinance: (1) the
4
general public’s enjoyment of park facilities; (2) the viability
5
and maintenance of those facilities; (3) the public’s health,
6
safety and welfare; and (4) the protection of the City’s parks
7
and public property from overuse and unsanitary conditions.
8
These interests appear to be narrowly-tailored and substantial
9
and similar to the interests the Supreme Court found
10
In his declaration, the Director asserted
constitutionally sufficient in Clark.
11
See 468 U.S. at 296.
The Court finds the Supreme Court’s reasoning in Clark to be
12
particularly informative.
13
that stated that camping in National Parks is permitted only in
14
campgrounds designated for that purpose.
15
plaintiffs wanted to camp in Lafayette Park (which is located in
16
Washington, D.C., across the street from the White House) and on
17
the National Mall to demonstrate in support of the plight of the
18
homeless, however neither of these public parks were designated
19
campgrounds under the regulations at issue.
20
Plaintiffs argued, among other things, that the regulations
21
violated the First Amendment.
22
In Clark, at issue were regulations
Id. at 289-92.
The
Id. at 291-92.
Id. at 293.
The Supreme Court, however, found that the regulations were
23
content-neutral time, place or manner restrictions.
24
The Court agreed that the tents and the act of sleeping out could
25
all be expressive activity and that the regulation at issue
26
prohibited those activities in Lafayette Park or on the Mall,
27
nonetheless, the Court noted that:
28
///
17
Id. at 295.
1
It is also apparent to us that the regulation narrowly
focuses on the Government’s substantial interest in
maintaining the parks in the heart of our Capital in an
attractive and intact condition, readily available to
the millions of people who wish to see and enjoy them
by their presence. To permit camping—using these areas
as living accommodations—would be totally inimical to
these purposes, as would be readily understood by those
who have frequented the National Parks across the
country and observed the unfortunate consequences of
the activities of those who refuse to confine their
camping to designated areas.
2
3
4
5
6
7
8
Id. at 296.
The Court also noted that if it were to find the
9
regulation was invalid on First Amendment grounds, “there would
10
be other groups who would demand permission to deliver an
11
asserted message by camping in Lafayette Park” and that this
12
“would present difficult problems for the Park Service.”
Id.
13
Although camping is not directly at issue in this case, the
14
Court finds the City’s interests at issue here are substantially
15
similar to the government interests that were found to be
16
constitutionally sufficient in Clark.3
17
///
18
///
19
20
21
22
23
24
25
26
27
28
3
A similar result was obtained in Vietnam Veterans Against
The War/Winter Soldier Organization v. Morton, 506 F.2d 53 (D.C.
Cir. 1974). In that case, the appellees sought to enjoin the
“Superintendent of the National Capital Parks and his superiors
from withholding from them a permit to establish a ‘symbolic
campsite’ on the Mall” on freedom of expression grounds Id. at
54. The D.C. Circuit, however, rejected this argument, noting
that the demonstrators were given a permit on the Mall that
allowed them to “propound their views by assembling, speaking,
pamphleteering, parading, carrying banners, and erecting whatever
structures they deem necessary to effective communication of
their message.” The only restriction was a ban on camping,
which, the court noted meant that the protestors “are only
prohibited from cooking and camping overnight, activities whose
unfettered exercise is not crucial to the survival of democracy
and which are thus beyond the pale of First Amendment
protection.” Id. at 57-58.
18
1
Therefore, the Court is not persuaded that Plaintiffs are likely
2
to be able to succeed on the merits of their argument that there
3
is no substantial government interest behind § 12.72.090.
4
Fourth, the Court is not persuaded that Plaintiffs are
5
likely to succeed on the merits of their argument that
6
§ 12.72.090 is unconstitutional because it fails to provide
7
“meaningful limits” on the discretion of the Director to
8
determine when to extend Park hours.
9
official enjoys unduly broad discretion in determining whether to
“Where the licensing
10
grant or deny a permit, there is a risk that he will favor or
11
disfavor speech based on its content.”
12
(citing Forsyth County v. Nationalist Movement, 505 U.S. 123, 131
13
(1992)).
14
place, and manner regulation contain adequate standards to guide
15
the official’s decision and render it subject to effective
16
judicial review.”
17
Thomas, 534 U.S. at 323
The Supreme Court has therefore “required that a time,
Id.
In Thomas, the Supreme Court addressed the issue of whether
18
Chicago Park District officials had unduly broad discretion in
19
determining whether to grant or deny a permit to use a municipal
20
park.
21
the Park District was given discretionary authority to deny a
22
permit on any of thirteen specified grounds.
23
example, the Park District could deny a permit if the use or
24
activity “would present an unreasonable danger to the health or
25
safety of the applicant, or other users of the park, of Park
26
District Employees or of the public.”
27
///
28
///
534 U.S. at 317-18.
Under the challenged city ordinance,
19
Id. at 318-20.
Id. at 319 n.1.
For
1
The petitioners contended that the criteria set forth in the
2
ordinance were insufficiently precise because they gave the Park
3
District discretionary authority to deny applications rather than
4
specific grounds on which the application must be denied.
5
324.
6
District’s discretion was not over-broad and upheld the
7
ordinance, noting that:
8
The Supreme Court, however, concluded that the
Id. at
Park
Granting waivers to favored speakers (or, more
precisely, denying them to disfavored speakers) would
of course be unconstitutional, but we think that this
abuse must be dealt with if and when a pattern of
unlawful favoritism appears, rather than by insisting
upon a degree of rigidity that is found in few legal
arrangements. On petitioners’ theory, every obscenity
law, or every law placing limits upon political
expenditures, contains a constitutional flaw, since it
merely permits, but does not require, prosecution. The
prophylaxis achieved by insisting upon a rigid,
no-waiver application of the ordinance requirements
would be far outweighed, we think, by the accompanying
senseless prohibition of speech (and of other activity
in the park) by organizations that fail to meet the
technical requirements of the ordinance but for one
reason or another pose no risk of the evils that those
requirements are designed to avoid. On balance, we
think the permissive nature of the ordinance furthers,
rather than constricts, free speech.
9
10
11
12
13
14
15
16
17
18
19
Id. at 325.
20
Here, § 12.72.090(C) grants the Director discretionary
21
authority, with the concurrence of the Chief of Police, to extend
22
park hours, subject to three conditions.
23
permits the Director to extend park hours when the Director
24
determines that (1) such extension of hours is consistent with
25
sound use of park resources, (2) the extension will enhance
26
recreational activities in the city, and (3) the extension will
27
not be detrimental to the public safety or welfare.
28
///
20
Specifically, it
1
Neither the Director’s discretionary authority, nor the three
2
criteria at issue in § 12.72.090(C), appear to be materially
3
different from the type of criteria that the Supreme Court upheld
4
in Thomas.
5
Furthermore, Plaintiffs have not demonstrated that there is
6
no meaningful opportunity for judicial review of licensing
7
decisions.
8
judicial review is unavailable and Defendants have provided the
9
Court with the park use permitting process outlined in
Plaintiffs have not presented any evidence that
10
§§ 12.72.160-180 (attached to the Witter Decl.), which establish
11
a process for review of the denial a park use application to the
12
City Manager.
13
appealing the denial of an application for permit to extend time
14
in the City parks and there is no evidence that judicial review
15
is unavailable.
16
Therefore, it appears there is a process for
In addition, as of the date Plaintiffs filed this action,
17
they had not actually applied for a park use permit, so their
18
claims that the Director has unfettered discretion to deny
19
applications for permits remains untested.
20
decision will be on the application that Plaintiffs submitted on
21
November 3 is unknowable.
22
Plaintiffs’ have not met their burden to establish a likelihood
23
of success on the merits.
24
What the Director’s
Therefore, the Court again finds that
Fifth, Plaintiffs’ have failed to demonstrate that they are
25
likely to be able to show that § 12.72.090 is unconstitutional
26
because the City exempts itself from its own permitting
27
requirements and could potentially engage in viewpoint
28
discrimination by favoring one form of speech over another.
21
1
However, Plaintiffs provide no evidence to support the conclusion
2
that the City has or is likely to engage in such viewpoint
3
discrimination and, in any event, the Supreme Court has upheld
4
instances where the government has favored one viewpoint over
5
another.
6
v. Sullivan, 500 U.S. 173 (1991).
7
demonstrated that any hypothetical action by the City favoring
8
one viewpoint over another would necessarily be unconstitutional.
9
See Pleasant Grove v. Summum, 555 U.S. 460 (2009); Rust
Plaintiffs have not
In sum, Plaintiffs have failed to demonstrate that they are
10
likely to succeed on the merits on their claims.
11
555 U.S. at 20.
12
appears substantially likely that § 12.72.090 is a
13
constitutionally sound, narrowly-tailored time, place or manner
14
restriction.
15
cannot show success on the merits, and must show each of the
16
requisite elements to obtain a TRO under the Winter standard,
17
their Motion fails.
18
Winter,
Under an intermediate level of review, it
See Nordyke, 644 F.3d 792-93.
Because Plaintiffs
Winter, 555 U.S. at 20.
The Court will briefly discuss each of the remaining
19
elements for obtaining a TRO but concludes that under the sliding
20
scale standard, Plaintiffs have failed to establish entitlement
21
to a TRO because they have not demonstrated a likelihood of
22
irreparable harm or shown that an injunction is in the public
23
interest.
24
///
25
///
26
///
27
///
28
///
Cottrell, 632 F.3d at 1131-36.
22
2.
1
Irreparable Harm
2
3
Because Plaintiffs have failed to establish that they are
4
likely to succeed on the merits of demonstrating that § 12.72.090
5
is unconstitutional, they cannot show they will suffer
6
irreparable injury from the continued application and enforcement
7
of the ordinance.
8
twenty-five day delay in bringing this action, after their TRO
9
was denied by Judge Connelly, significantly undermines their
10
assertion that they will suffer irreparable injury from the
11
continued enforcement of § 12.72.090 absent a TRO.
12
have sought an injunction, but failed to do so.
In addition, as discussed earlier, Plaintiffs’
They could
13
3.
14
Balance of the Equities and Public Interest
15
16
Because Plaintiffs have not met their burden to demonstrate
17
that they are likely to succeed on their argument that
18
§ 12.72.090 is unconstitutional, they cannot show that the
19
balance of equities or public interest favor the granting of a
20
TRO to suspend the enforcement of a presumptively constitutional
21
statute.
22
burden of showing that whatever expressive benefit Plaintiffs may
23
derive from instituting around-the-clock activities in the Park
24
is outweighed by the public interest in the various benefits
25
derived from the hours restrictions established by § 12.72.090.
26
///
27
///
28
///
Furthermore, on balance Plaintiffs have not met their
23
CONCLUSION
1
2
3
For the reasons set forth in this Order, the Court concludes
4
that Plaintiffs have not met their burden of showing that they
5
are entitled to the extraordinary remedy of a TRO under the
6
standards articulated in Winter and Cottrell.
7
for a Temporary Restraining Order is therefore DENIED.
8
9
Plaintiffs’ Motion
IT IS SO ORDERED.
Dated: November 4, 2011
10
11
12
_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
13
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15
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17
18
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21
22
23
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25
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27
28
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