Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 1 of 12 PageID 100

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION PAUL HELLER, LESLIE HARRIS, DEBORAH BELTRAN, GARY STUARD, DIANE BAKER, and MAVIS BELISLE, Plaintiffs, v. CITY OF DALLAS, Defendant. ORDER Now before the Court is Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction, filed on April 16, 2013. (Doc. 3.) Defendant filed a Response on April 17, 2013. (Doc. 6.) Plaintiffs filed a Reply on April 17, 2013. (Doc. 7.) The parties appeared before the Court at a hearing held on April 18, 2013. After reviewing the parties briefing, the evidence, and the applicable law, the Court GRANTS Plaintiffs Motion for Preliminary Injunction. I. Background Plaintiffs seek to stage protest activities between April 22, 2013 and April 25, 2013 which include a march, rally, and demonstration to voice their opposition to U.S. policies in a number of areas. During these dates, the George W. Bush Presidential Center (the Bush Center) located on the campus of Southern Methodist University (SMU) will conduct a number of events culminating in a dedication ceremony. The event will include the attendance of five men who have served as President of the United States. In preparing for their protest, Plaintiffs obtained permission from SMU to stage a protest on a portion of SMU-owned property

3:13-CV-1479-P

Order 3:13-CV-1479-P Page 1 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 2 of 12 PageID 101

(Expressway Tower) located at 6116 Central Expressway. 1 Although this space lies on the east side of the Central Expressway, the proposed protest area affords Plaintiffs a direct line of sight to the Bush Center. 2 This location is important to Plaintiffs because the planned

demonstrations are being held in connection with the events surrounding the dedication of the Bush Center. In planning for their protest activities at Expressway Tower, Plaintiffs contacted the Dallas Police Department in order to verify that their conduct would not subject them to citation or other sanction. Members of the Dallas Police Department informed Plaintiffs that holding any sign on the sidewalk at or near Expressway Tower would constitute a violation of Section 28158.1 of the Dallas City Code (the Ordinance). The Ordinance states: A person commits an offense if he carries or otherwise displays a sign 3 on, over, or within 75 feet of the roadway of any of the following streets or highways in a manner intended to attract the attention of vehicle occupants on those streets or highways. 4 Dallas, Tex., Code 28-158.1(b). In particular, Plaintiffs learned that they would be issued a citation if they held signs within seventy-five feet or less of the access road running northbound on the Central Expressway. Dallas police officers further noted that Plaintiffs would be able to hold signs in protest so long as they stood more than seventy-five feet from the access road, which would place them at or near the parking lot of Expressway Tower, rather than on the sidewalk adjacent to the Central Expressway access road.

Central Expressway is a locally-known alternative name for certain portions of U.S. 75. Several streets and roads on the west side of central expressway near the Bush Center will be inaccessible during its opening due to either security concerns or crowd-control. 3 The Ordinance defines a sign as any device, flag, light, figure, picture, letter, word, message, symbol, plaque, poster, or other thing that is designed, used, or intended to advertise or inform. Dallas, Tex., Code 28-158.1(a). 4 The Ordinance contains a specifically enumerated list of highways to which it applies, including Central Expressway. Dallas, Tex., Code 28-158.1(b).
2

Order 3:13-CV-1479-P Page 2 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 3 of 12 PageID 102

On April 11, 2013, Plaintiffs filed suit against Defendant City of Dallas (the City) and sought a Temporary Restraining Order and Preliminary Injunction declaring the Ordinance unconstitutional on its face and as applied to Plaintiffs. Following the Citys removal of this action on April 16, 2013, the Court expedited the briefing on the preliminary injunction and held a hearing on April 18, 2013. II. Jurisdiction In a separately filed Motion, Plaintiffs have moved to remand this matter to state court, arguing that the City improperly removed from state court. (Doc. 5.) A defendant may remove a suit from state court to federal court only if the action could have originally been filed in federal court. 28 U.S.C. 1441(a). In this case, the City filed a Notice of Removal and claimed that federal question jurisdiction arises from Plaintiffs cause of action under 42 U.S.C. 1983. (Doc. 1 at 5-6.) The Court finds that this is an adequate showing so as to confer jurisdiction of this First Amendment case. 5 III. Preliminary Injunction Federal Rule of Civil Procedure 65 provides that the Court may issue a preliminary injunction to restrain or require certain acts. For the grant of injunctive relief, a movant must demonstrate the following equitable factors: (1) a substantial likelihood of success on the
Plaintiffs have also noted that they are defendants in an ongoing criminal trial in Dallas Municipal Court for previous violations of the Ordinance. (Doc. 5 at 2.) As part of this suit, Plaintiffs state that on January 21, 2013 they were engaged in a peaceful rally in favor of the First Amendment at the intersection of Mockingbird Lane and Central Expressway. (Doc. 1 at 17.) Plaintiffs state they were given citations under the Ordinance by members of the Dallas Police Department and were told they would be arrested if they did not lower or cover their signs. (Id.) Plaintiffs have raised a defense of the unconstitutionality of the Ordinance in the criminal proceedings. According to Plaintiffs, the City Municipal Judge is holding the criminal case in abeyance pending the outcome of this suit. As a result, Plaintiffs have asked the Court to abstain pursuant to Younger v. Harris, 401 U.S. 37 (1971). (Id. at 3.) In the instant ruling, the Court is ruling only on the Plaintiffs request for declaratory and injunctive relief regarding their planned activities in connection with the opening and dedication of the George W. Bush Library on April 2225, 2013. This Order expresses no opinion on the Ordinance regarding the citations given to Plaintiffs on January 21, 2013, as it occurred in a different location and was not a protest conducted in connection with the opening of the Bush Center. Order 3:13-CV-1479-P Page 3 of 12
5

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 4 of 12 PageID 103

merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) the grant of the injunction will not disserve the public interest. Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011) (citing Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)). A preliminary injunction is an extraordinary remedy. La Union del Pueblo Entero v. FEMA, 608 F.3d 217, 219 (5th Cir. 2010). The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Thus, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. Id. The Court may accept otherwise inadmissible evidence, including hearsay evidence, in the form of deposition transcripts and affidavits. Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993). A. Success on the Merits Government Interest Regardless of whether the Ordinance is content-based or content-neutral, the City must demonstrate that it has some meaningful interest in more stringent regulation of traffic at or near the sidewalk of Expressway Tower. Courts use varying standards in evaluating the propriety of government regulation of free speech. The most demanding standard of review is known as strict scrutiny, whereupon the government must demonstrate that the restriction [is] narrowly tailored to serve a compelling government interest. Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, --U.S.--, 130 S.Ct. 2971, 2984 n. 11 (2010) (emphasis added). Where a regulation is content-neutral and restricts the time, place, and manner of speech, courts apply intermediate scrutiny, which requires the government to
Order 3:13-CV-1479-P Page 4 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 5 of 12 PageID 104

demonstrate that the regulation (1) serves a significant governmental interest, (2) is narrowly tailored to achieve that interest, and (3) leaves open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (emphasis added) (citing Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293 (1984)); Consol. Edison Co. of N.Y. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 53536 (1980). Considering the available tests, a showing of only a minimal government interest will not withstand a challenge on First Amendment grounds. See e.g. Bd. of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569, 575 (1987); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502 (1981) (plurality opinion); Stay the Course W. Va. v. Tennant, No. 1:12-CV-01658, 2012 U.S. Dist. LEXIS 112147, at *1718 (S.D. W. Va. Aug. 9, 2012). Under the facts of this case, the interest articulated by the City would have to be either compelling or significant. Based upon the evidence submitted at the preliminary injunction hearing, there is inadequate evidence of either a significant government interest or a compelling government interest in more rigorous signage regulation at the specific area where Plaintiffs seek to protest. Upon considering the evidence presented at the preliminary injunction hearing, the Court finds that the City has failed to demonstrate any need to regulate signs and other displays at or near the proposed protest venue as strictly as outlined in the Ordinance. In its most general, abstract form, the Ordinance serves the interest of the City in ensuring traffic safety. Metromedia, Inc., 453 U.S. at 50708 (describing traffic safety as one of a municipalities substantial governmental goals). This interest would be especially important along

traditionally-defined multi-lane highways, which involve motorists traveling at a high rate of speed, in frequently changing lanes, entering, or exiting the roadway. However, the City has failed to adequately and particularly demonstrate that the traffic along the service road near the
Order 3:13-CV-1479-P Page 5 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 6 of 12 PageID 105

proposed protest venue is in any way different from any busy streets which do not fall within the Ordinances ambit. The stretch of the northbound service road between Mockingbird Lane and SMU Boulevard is approximately 1,500 feet. Google Maps, http://maps.google.com (search term 6116 North Central Expressway). This stretch of roadway contains no on-ramps or off-ramps to and from the main highway portion of the Central Expressway. Id. Traffic signals regulate traffic flow at both the southernmost intersection of this stretch and the northernmost intersection of this particular stretch of roadway. Id. Plaintiffs submitted video evidence suggesting that this particular access road is significantly elevated above the main highway thoroughfare and entirely out of its view, and this evidence was not rebutted by the City. No evidence suggests that traffic near the site is moving at a rate of speed greater than forty miles per hour. 6 Traffic along the service road is limited to two lanes, whereas Central Expressway contains three to four lanes in each direction. Furthermore, the proposed location is near an ordinary traffic intersection complete with a stop lightthat more closely functions as does any ordinary intersection located within the Dallas City limits where displaying a sign is not a citable offense under the Ordinance. Factually, the area in which Plaintiffs seek to display their signs is more analogous to a commercial setting than it is a highway setting. Noting these unrebutted facts, the Court finds that the government has failed to meet its burden to demonstrate even a minimal need to regulate First Amendment activity at or near the proposed protest site any differently than any other street where Plaintiffs would not be subject to citation under the Ordinance for bearing a sign. Finding that the government interests

Testimony received during the preliminary injunction hearing suggests that the normal speed limit in this specific stretch is thirty-five miles per hour.

Order 3:13-CV-1479-P Page 6 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 7 of 12 PageID 106

advanced by the City are not implicated at this location, the Court finds that Plaintiffs have shown a substantial likelihood of success on the merits. Vagueness The City has taken the position that the term Central Expressway in the Ordinance includes not only the main traffic lanes of the highway itself, but also all of its access and/or service roads. Claiming that the Ordinance is constitutionally void for vagueness, Plaintiffs argue that the Ordinance does not sufficiently apprise them as to where they may hold their signs during their planned protest. (Doc. 7 at 19-20.) Regulation of speech must be through laws whose prohibitions are clear. Flexibility in a statute is permissible, but the statute must provide fair notice so that its prohibitions may be avoided by those who wish to do so. Grayned v. City of Rockford, 408 U.S. 104, 110-12 (1972). Vagueness challenges usually must show that the law has a capacity to chill constitutionally protected conduct, especially conduct protected by the First Amendment. Roark & Hardee LP v. City of Austin, 522 F.3d 533, 546 (5th Cir. 2008) (quoting United States v. Gaudreau, 860 F.2d 357, 360 (10th Cir. 1988)). For criminal statutes, the Fifth Circuit uses a two-part void-for-vagueness test: (1) a penal statute must define the criminal offense with sufficient definiteness so that an ordinary person may understand what conduct is actually prohibited; and (2) a penal statute must define a criminal offense in a way that does not encourage discriminatory and arbitrary enforcement. United States v. Rudzavice, 586 F.3d 310, 31415 (5th Cir. 2009) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)); Ford Motor Co. v. Tex. Dep't of Transp., 264 F.3d 493, 507 (5th Cir. 2001). But perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity. United States v. Williams, 553 U.S. 285, 304 (2008) (quoting Ward, 491 U.S. at 794).
Order 3:13-CV-1479-P Page 7 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 8 of 12 PageID 107

Having examined both the Ordinance itself and the evidence presented at the preliminary injunction hearing, the Court preliminarily finds that ample support exists to permit a preliminary finding that the Ordinance is unconstitutionally vague and therefore void. First, the plain

language of the Ordinance itself does not contain any reference to the terms access road or service road. 7 To support its position that the Ordinance includes service and access road portions of Central Expressway, the City has cited the General Provisions portion of the Dallas City Code, which defines a highway as: any street, alley, highway, avenue or public place or square, bridges, viaducts, tunnels, underpasses, overpasses and causeways in the city, dedicated or devoted to public use. Dallas, Tex., Code 1-5. Further confusing the issue is the Dallas City Codes definition of a roadway, which is identified as: that portion of a street improved, designed or ordinarily used for vehicular traffic and that portion of a street used for drainage. Id. Yet another definition contained in the Dallas City code notes that a street includes: any highway, boulevard, alley, street, avenue or public place or square, bridges, viaducts, culverts, underpasses, overpasses, tunnels and causeways in the city, dedicated to or devoted to public use. Id. These definitions flow in an entirely circular fashion, many containing identical language or portions of other definitions, as is the case with the definition of a highway and a street. Each definition uses the very term it defines in the definition section. Notably, none of these

definitions clearly or adequately suggest that a highway includes both the main thoroughfare as

Evidence in the record suggests that service roads are unique to Texas highways. Recognizing this fact, a statutorily defined term such as highway would need to account for this feature when regulating which conduct may occur in certain areas near the road.

Order 3:13-CV-1479-P Page 8 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 9 of 12 PageID 108

well as all of its access and/or service roads. Applying this understanding to Plaintiffs and other putative sign-bearers along the Central Expressway, the Court is not convinced that an ordinary person of even extraordinary intelligence would understand that the restricted seventy-five foot sign-free zone actually begins from the outside sidewalk of Central Expressways access road. The vagueness of the Ordinance also encourages its improper enforcement. As noted above, a penal statute must define a criminal offense in a way that does not encourage discriminatory and arbitrary enforcement. During the preliminary injunction hearing, the Court received evidence that even those tasked with enforcing the ordinance struggled to uniformly apply its plain terms. On cross-examination, Chief Shedd, head of the Dallas Police Department division tasked with enforcement of the Ordinance, demonstrated noticeable discomfort and confusion when presented with several hypothetical situations 8 regarding display of signage along the sidewalk of the Central Expressway service road. Many of Chief Shedds answers to these hypotheticals were either unresponsive or inconsistent. Furthermore, other evidence

suggests that the Plaintiffs specifically asked Dallas Police Department officers if they would be cited under the Ordinance if they were to stand with their backs facing the Central Expressway access road with their signs facing the parking lot, not oncoming traffic, to take a photograph. Dallas Police Department officers stated that this would be a violation and that such conduct would subject Plaintiffs to citation. 9 During her testimony, Chief Shedd stated that she did not believe that this would be a violation.

The hypothetical situations were not difficult to imagine as having actually occurred, such as football fans bearing signs while on their way to Ford Stadium on the SMU campus or signs left unattended at the proposed protest site. 9 The officers expressed this belief notwithstanding the Ordinances plain language which requires a sign-bearer to act in a manner intended to attract the attention of vehicle occupants on the highway. Order 3:13-CV-1479-P Page 9 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 10 of 12 PageID 109

The Court finds that this inconsistent enforcement and the confusion surrounding what constitutes a violation of the Ordinance is a result of its vagueness. Accordingly, the Court finds that the Ordinance does not adequately outline the criminal offense with sufficient definiteness so that an ordinary person may understand what conduct is actually prohibited, nor does the Ordinance define a criminal offense in a way that does not encourage discriminatory and arbitrary enforcement. These shortcomings suggest that Plaintiffs have demonstrated a

substantial likelihood of success on the merits. B. Irreparable Harm To satisfy the second element of the preliminary injunction standard, a plaintiff must show that if the district court denied the grant of a preliminary injunction, irreparable harm would result. Janvey, 647 F.3d at 600 (citing Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)). Injuries are irreparable only when they cannot be undone through monetary remedies. Paulsson Geophysical Servs., Inc. v. Sigmar, 529 F.3d 303, 312 (5th Cir. 2008) (citation omitted). Loss of First Amendment freedoms, even for a minimal period of time, constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). The evidence before the Court is sufficient to demonstrate that Plaintiffs would suffer irreparable harm. Notably, the parties do not dispute that the Bush Center dedication ceremonies will host five men who have served as President of the United States, as well as plentiful other dignitaries. The parties also do not dispute that the Bush Center ceremonies will receive a substantial amount of media attention over the course of the week. For Plaintiffs, this presents a unique opportunity to express themselves to an audience whom they may not be able to otherwise reach. Common sense dictates that an event of this magnitude will not occur again whereupon Plaintiffs will be able to convey their message under similar circumstances. Finally,
Order 3:13-CV-1479-P Page 10 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 11 of 12 PageID 110

Plaintiffs have provided evidence confirming their personal belief that displaying a sign will be a very effective and powerful medium of expression. Curtailing this powerful means of expression at this important time would constitute irreparable harm as to Plaintiffs. In light of the foregoing evidence, Plaintiffs have met their burden on this element. C. Balancing The third element requires a preliminary injunction applicant to show that the threatened injury outweighs any harm the injunction might cause. See Winter v. Natural Res. Def. Council, Inc,, 555 U.S. 7, 23 (2008). The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. Snyder v. Phelps, --U.S.--, 131 S. Ct. 1207, 1215 (2011) (quoting N. Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Indeed, speech on matters of public concern . . . is at the heart of the First Amendments protection. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 75859 (1985) (quoting First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765, 776 (1978)). That is because speech concerning public affairs is more than self-expression; it is the essence of selfgovernment. Snyder, 131 S. Ct. at 1215 (quoting Garrison v. Louisiana, 379 U.S. 64, 7475 (1964)). The Court finds that Plaintiffs have met their burden as to the balancing of the harms for purposes of a preliminary injunction. Plaintiffs have presented evidence supporting the serious injury that would occur to Plaintiffs if they were denied their fundamental right to free speech. When weighing this serious injury against the minimal harm incurred in enjoining enforcement of the Ordinance for a period of four days, the result favors Plaintiffs. This is especially true in light of the Citys failure to provide sufficient evidence of its interest in regulating the use or display of signs at the proposed protest site more strictly than at other traffic locations.
Order 3:13-CV-1479-P Page 11 of 12

Case 3:13-cv-01479-P Document 12 Filed 04/19/13

Page 12 of 12 PageID 111

Accordingly, the Court finds that the threatened injury outweighs any harm caused by enjoining the Ordinances enforcement for the dates of April 22, 2013 through April 25, 2013. D. The Public Interest Finally, the fourth element requires a preliminary injunction applicant to show that the injunction is in the public interest. Winter, 555 U.S. at 20. As noted above, there is a strong public interest in the freedom of expression, especially as it relates to protest speech. Bearing this in mind, the Court finds that the public interest will be served by allowing Plaintiffs to fully exercise their right to engage in speech, including the bearing of signs, along the sidewalk at the proposed protest venue. IV. Conclusion Defendant City of Dallas and its police officers are hereby temporarily enjoined from issuing citations under Dallas City Code Section 28-158.1 to any and all protestors bearing signs on the sidewalks within the area donated by SMU, including Expressway Tower, for the purpose of staged protest activities between April 22, 2013 and April 25, 2013. IT IS SO ORDERED. Signed this 19th day of April, 2013.

Order 3:13-CV-1479-P Page 12 of 12