Denton v. City of El Paso

• Decision Date: 28 July 2020
• Docket Number: EP-20-CV-85-KC
• Citation: 475 F.Supp.3d 620
• Parties: Ryan DENTON, Plaintiff, v. CITY OF EL PASO, TEXAS, Defendant.
• Court: U.S. District Court — Western District of Texas

475 F.Supp.3d 620

Ryan DENTON, Plaintiff,

v.CITY OF EL PASO, TEXAS, Defendant.

EP-20-CV-85-KC

United States District Court, W.D. Texas, El Paso Division.

Signed July 28, 2020

Nathan W. Kellum, Center for Religious Expression, Memphis, TN, Michael D. Paul, Michael D. Paul, PLLC, San Antonio, TX, for Plaintiff.

Evan Daine Reed, Maria Guadalupe Martinez, El Paso City Attorney's Office, El Paso, TX, for Defendant.

ORDER

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Plaintiff Ryan Denton's Corrected Motion for Preliminary Injunction (the "Motion"), ECF No. 6. For the reasons set forth below, the Motion is DENIED .

I. BACKGROUND

On March 27, 2020, Plaintiff filed this lawsuit against the City of El Paso, Texas (the "City"), complaining that the City's policies have wrongfully prevented him from engaging in religious proselytization at the weekly El Paso Art and Farmers Market (the "Market"), in violation of his First and Fourteenth Amendment rights. Compl. ¶¶ 1, 3, 83–92, ECF No. 1. The City has filed an Answer, ECF No. 9.

On April 3, 2020, Plaintiff filed the instant Motion, seeking a preliminary injunction to restrain the City and its agents from prohibiting religious proselytization during the Market. Mot. 1. The City filed a Response, ECF No. 11, and Plaintiff filed a Reply, ECF No. 12. On July 7, 2020, the Court held a Hearing on the Motion (the "Hearing"). See Audio Recording of Hr'g, ECF No. 23. Plaintiff did not appear or testify at the Hearing, and Plaintiff's counsel notified the Court that he would rely on the written submissions in support of the Motion. Id. The City presented two employees of the City's Museums and Cultural Affairs Department ("MCAD") as witnesses, only one of whom testified. Id.

The following facts are drawn together from the pleadings, the affidavits and other documentary evidence submitted by the parties, the testimony adduced at the Hearing, and the stipulations of fact made in two of the parties' joint filings, see Joint Report of the Parties' Meet and Confer (the "Joint Report"), ECF No. 15; Joint Report of the Parties' Planning Meeting (the "RPPM"), ECF No. 20. See Jackson Women's Health Org. v. Currier , 760 F.3d 448, 451 (5th Cir. 2014) (quoting Sierra Club v. FDIC , 992 F.2d 545, 551 (5th Cir. 1993) ) ("[T]he district court may employ informal procedures and rely on generally inadmissible evidence [to adjudicate a motion for a preliminary injunction.]").

1. The August 24, 2019, Incident at the Market

Plaintiff is an evangelical Christian who regularly preaches and proselytizes in public spaces. Compl. ¶¶ 10–16. On August 24, 2019, he went to the Market and found a spot out of the way of vendors and the flow of pedestrian traffic, at the intersection of Western Street and Anthony Street. Id. ¶¶ 35–43. Plaintiff alleges that he then began to preach in a voice only slightly louder than an ordinary conversational volume. Id. ¶ 44. Plaintiff further alleges that, in less than one minute, he was approached by Ismael Acosta, an MCAD employee, together with an unnamed law enforcement officer with the El Paso County Sheriff's Department. Id. ¶¶ 45–46.

During the Hearing, Acosta recounted the incident somewhat differently. Acosta testified that Plaintiff had just arrived and begun to set up a "pedestal" across from the MCAD informational booth when Acosta recognized Plaintiff. Audio Recording of Hr'g. Acosta testified that he knew of Plaintiff from videos that he had seen on social media of Plaintiff "disrupt[ing] other events" at the University of Texas at El Paso campus and elsewhere. Id. Acosta testified that, before Plaintiff even began to speak, he approached Plaintiff and told him that he would have to leave the Market premises if he intended to proselytize. Id. While the parties dispute whether Plaintiff had yet begun to speak, it is undisputed that Acosta approached Plaintiff shortly after he arrived at the Market and told him that he could not proselytize within the Market's premises. Id. ; Mot. Ex. A ("Denton Aff.") ¶ 37, ECF No. 4-4; Compl. ¶ 46; Ans. ¶¶ 45, 58; RPPM 3.

Acosta and Plaintiff debated whether the property—which consists of public roadways and a park—was technically public or private during the time that it was reserved for use by the Market. Compl. ¶¶ 47–55. During the course of their discussion, Acosta and the law enforcement officer told Plaintiff that he would be arrested "if he did not refrain from proselytizing in any part of Union Plaza Area." Id. ¶¶ 56, 59; Denton Aff. ¶¶ 47, 50. Acosta further told Plaintiff "that [he] could speak as long as [he] did it outside of the Union Plaza Area." Denton Aff. ¶ 51; see also Ans. ¶ 58 ("Plaintiff was informed he could move to virtually any area directly outside of the events footprint to continue his activity."); RPPM 3 ("The City did not prohibit the Plaintiff from utilizing alternative avenues immediately outside of the event space for him to freely engage in his protected speech."). Acosta offered to retrieve a copy of an ordinance supporting his position that the property was private during the Market, if Plaintiff would wait for an hour and a half. Compl. ¶¶ 46, 49. Plaintiff declined and left the area. Id. ¶ 53.

The City provided a map as demonstrative evidence of where Acosta encountered Plaintiff and where Acosta told Plaintiff he could move in order to freely proselytize. Resp. Ex. 2 ("Map"), ECF No. 11. Among the locations marked "demonstrators allowed to set up" is the intersection of Anthony Street and West San Antonio Avenue, which forms the southwest corner of the Market footprint and is one block to the south of where Plaintiff intended to proselytize when he was confronted by Acosta. See id.

2. Correspondence with the City

Approximately three months later, Plaintiff sent a letter, through his attorney, to the Mayor of El Paso, the El Paso City Attorney, and the El Paso County Sheriff's Department. Compl. ¶ 56. The letter recounted the August 24 incident, alleged that the City unconstitutionally expelled Plaintiff from the Market, and sought assurances that the City would not prevent him from proselytizing at the Market in the future. Mot. Ex. E ("November 15, 2019, Letter"), ECF No. 4-4. After a series of delays and follow-ups, the City responded with a letter, signed by Assistant City Attorney Evan Reed, on February 17, 2020. Denton Aff. ¶¶ 57–64. The City's letter asserted that Acosta had properly applied municipal policy and that Plaintiff would again be excluded from the Market if he returned to preach. Mot. Ex. H ("February 17, 2020, Letter"), ECF No. 4-4.¹ The City provided the following characterization of its policy:

These Farmers Markets are pre-planned, permit required, ordinance authorized events that take place on certain public streets during certain specified times. Permit based events, such as the Farmers Market have boundaries and footprints that are controlled by the organizer during the event. While the event remains open to the public, the organizer may control access and activity within that footprint during the event, in order to ensure the event is not disrupted. Accordingly, the City does not allow activities such as protesting, campaigning, lobbying, proselytizing, or any other activity that could cause a disruption of performances, vending, and/or operations, or pose a potential safety issue. This policy is not targeted towards the content of the speech, it is targeted toward preventing disruptive conduct.

Id.

3. The policy

The policy that Plaintiff refers to throughout his Complaint, and that Assistant City Attorney Reed refers to in the February 17, 2020, Letter, has not been formally enacted as a City ordinance.² The parties dispute what the policy entails, and each party has submitted evidence that is probative of its content.

In addition to the February 17, 2020, Letter, Plaintiff also provided an MCAD-produced document entitled "About the Downtown Artist and Farmers Market." Mot. Ex. D ("About the Market"), ECF No. 4-4. Under the sub-heading of "Organizations," the document states: "We encourage organizations to participate in the [Market] to promote local events and share information with the community. Non-profit organizations can apply to participate, free of cost. The [Market] is NOT a venue for fundraising, political campaigning, or religious proselytizing." Id. at 8. The document further states that "[o]rganizations may not approach or shout to customers passing by and information be only be [sic] distributed at the designated booth space." Id.

Elsewhere, the "About the Market" document notes that the City permits street musicians—"buskers"—who successfully audition to perform during the Market. Id. at 8–9. Buskers must "[p]erform without any amplification," are "required to move locations throughout the market every 30 minutes," and "[c]an be moved at the discretion of the Market Coordinator." Id. at 9.

During the Hearing, the City called the Court's attention to one additional provision in the "About the Market" document. Audio Recording of Hr'g. Under the sub-heading of "Market Operations," the document states that "[v]endors will conduct themselves courteously to all visitors, customers, fellow vendors and Market staff. Vendors may not verbally call attention to their space by calling out beyond the borders of their space. Violations of Market Vendor Guidelines may result in suspension or revocation of [permission to participate in the Market]." About the Market 10–11.

The City also submits the Affidavit of Benjamin E. Fyffe, the Assistant Director of MCAD. Resp. Ex. 1 ("Fyffe Aff."). Fyffe describes the relevant policy:

In order to manage pedestrian traffic flow and also to make sure that permitted vendors are able to engage with customers easily (without their vending areas being blocked, or having to have to shout over someone), any group/individual who has not prearranged to have space at the Market is asked to move outside of Market

...