Enten v. District of Columbia

• Decision Date: 22 December 2009
• Docket Number: Civil Action No. 09-1825 (PLF).
• Citation: 675 F.Supp.2d 42
• Parties: Frank ENTEN, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

675 F.Supp.2d 42

Frank ENTEN, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 09-1825 (PLF).

United States District Court, District of Columbia.

December 22, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Andrew Tauber, Lauren R. Randell, Nicholas Jabbour, Mayer Brown LLP, Washington, DC, for Plaintiff.

Sarah Ann Sulkowski, Office of the Attorney General, DC, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiff Frank Enten seeks a preliminary injunction barring defendants from enforcing the District of Columbia's vending regulations against him when he sells political buttons on the city's sidewalks. Mr. Enten argues that his activities are constitutionally protected speech and that restricting his button sales violates both the First Amendment to the U.S. Constitution and District of Columbia law. The Court heard oral argument on plaintiff's motion on November 12, 2009. After careful consideration of the parties' papers, the arguments made by counsel before the Court, and the relevant statutes, regulations and case law, the Court will deny plaintiff's motion.¹

I. BACKGROUND

Frank Enten is a retired Korean War veteran who periodically displays, discusses and sells historic and contemporary political buttons on the District of Columbia's downtown sidewalks in order to "express his commitment to the American tradition of political pluralism and to convey his adherence to certain political viewpoints." Mot., Memorandum of Law in Support of Plaintiff's Application for a Preliminary Injunction ("Mem.") at 7. The buttons' content ranges from historic statements such as "I Like Ike" to responses to current political issues such as "Proud To Be A Teabagger." See Mot., Ex. 1, Affidavit of Frank Enten ("Enten Aff."); Reply, Ex. 2, Supplemental Affidavit of Plaintiff Frank Enten ("Supp. Enten Aff."). Although Mr. Enten agrees with the message conveyed by some of these buttons, he also displays buttons with whose message he disagrees in "a tribute to America's tradition of political liberty." See Enten Aff. ¶ 5. Mr. Enten displays his buttons on a table and with a stand which he usually sets up on a sidewalk or in another public place. See Enten Aff. ¶¶ 7-8. He uses the display to attract the attention of passersby and to engage them in discussion about political issues related to the buttons. See id. ¶ 10.

Because Mr. Enten has obtained neither a vending permit to sell his buttons nor a site license to sell them at a particular location, on numerous occasions from 1994 to the present officers of the Metropolitan Police Department ("MPD") have ordered Mr. Enten to cease his activities or face arrest or citation. See Enten Aff. ¶ 13. Mr. Enten complies with the officers' orders to cease his activities because he has been arrested for his activities on one occasion in the past. See id. ¶¶ 13-14.

The Vending Regulation Act of 2009 requires that, with certain limited exceptions, "a person shall not vend from a sidewalk, roadway, or other public space" unless the person holds both a vending license and a specific site permit. See D.C.Code. § 37-131.02(a).² A person may vend only from an approved location and must possess a permit for that particular location. See D.C.Code. § 37-131.03(a); 37-131.04(a); D.C. Mun Reg. § 24-501.16. The total number of vending locations in Ward 2, which includes the downtown commercial area, is capped at 350. See D.C.Code. § 37-131.03(c). The total number of licenses for sidewalk vendors is limited to double the number of vending sites in designated vending zones. See D.C. Mun Reg. § 24-505.4. In January 2007, Mr. Enten applied to the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") for both a permit and a license and paid the required application fee. See Enten Aff. ¶¶ 16-20. He has received no response — although under the regulations the agency must respond within 45 days. See id. ¶ 24; D.C. Mun. Reg. § 24-505.1.

Mr. Enten filed this lawsuit on September 24, 2009, naming as defendants the District of Columbia, Mayor Adrian Fenty in his official capacity, Linda Argo in her official capacity as Director of the DCRA, and Cathy Lanier in her official capacity as Chief of the MPD. He alleges that the defendants are violating both District of Columbia law and the First Amendment, and he seeks both a preliminary and a permanent injunction preventing defendants from interfering with his button-selling activities, as well as certain declaratory relief.

II. PRELIMINARY INJUNCTION STANDARD

In deciding whether to grant emergency injunctive relief, the Court must consider (1) whether there is a substantial likelihood that plaintiff will succeed on the merits of his claim, (2) whether plaintiff will suffer irreparable injury in the absence of an injunction, (3) the harm to defendants or other interested parties should an injunction issue, and (4) whether an injunction would be in the public interest or at least not be adverse to the public interest. See Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C.Cir. 2009) (citing CFGC v. England, 454 F.3d 290, 297 (D.C.Cir.2006)). Plaintiff is not required to prevail on each of these factors. Rather, these factors must be viewed as a continuum, with a stronger showing of one factor compensating for a weaker showing of another. Davis v. Pension Benefit Guar. Corp., 571 F.3d at 1291-92. "If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995).

III. DISCUSSION

Mr. Enten argues that the District of Columbia violates the First Amendment by imposing what he considers an impermissible prior restraint on his button-selling activities. He also argues that the District is violating its own statute — the First Amendment Assemblies Act of 2004, D.C.Code § 5-331.01 et seq., which, according to Mr. Enten, exempts him from the permitting regulations. The defendants maintain that Mr. Enten lacks standing to bring this lawsuit, and they dispute both his statutory and constitutional claims. The Court will consider first the defendants' challenge to Mr. Enten's standing, then his argument under the First Amendment Assemblies Act, and finally Mr. Enten's constitutional arguments.

A. Standing

In order to establish standing under Article III of the United States Constitution, a plaintiff must show, at an "irreducible constitutional minimum," that (1) he has suffered an injury in fact — the invasion of a legally protected interest; (2) the injury is fairly traceable to the defendants' conduct (a causal connection); and (3) a favorable decision on the merits likely will redress the injury. Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., ___ U.S. ___, 128 S.Ct. 2531, 2535, 171 L.Ed.2d 424 (2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also North Carolina v. EPA, 587 F.3d 422, 425-26 (D.C.Cir.2009); Nuclear Info. & Resource Serv. v. Nuclear Regulatory Comm'n, 509 F.3d 562, 567 (D.C.Cir.2007) (quoting Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996)); Northern Mariana Islands v. United States, 670 F.Supp.2d 65, 75 (D.D.C.2009). The alleged injury in fact must be concrete and particularized and actual or imminent, not conjectural, hypothetical or speculative. See Friends of the Earth v. Laidlaw, 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Lujan v. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130; Worth v. Jackson, 451 F.3d 854, 858 (D.C.Cir.2006); Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002). If a plaintiff cannot meet all three prongs of this test, the Court must dismiss the suit for lack of standing.

Defendants argue that Mr. Enten does not have standing because he has not shown that a threatened injury is imminent. When expressive activity is at issue, the court of appeals has said: "A party has standing to challenge, pre-enforcement, even the constitutionality of a statute if First Amendment rights are arguably chilled, so long as there is a credible threat of prosecution." Chamber of Commerce v. Federal Election Comm'n, 69 F.3d 600, 603-04 (D.C.Cir.1995) (emphasis added). See also A.N.S.W.E.R. v. District of Columbia, 589 F.3d 433, 435 (D.C.Cir. 2009) ("While `subjective `chill' alone will not suffice to confer standing on a litigant bringing a pre-enforcement facial challenge to a statute allegedly infringing on the freedom of speech' . . . imminent threats commonly suffice.") (quotations omitted). "A credible threat of prosecution exists where a plaintiff's desired course of action is covered by a statute that is generally enforced." Unity08 v. FEC, 583 F.Supp.2d 50, 59 (D.D.C.2008). See also Seegars v. Gonzales, 396 F.3d 1248, 1252 (D.C.Cir.2005). Mr. Enten states in his affidavit that on numerous occasions, MPD officers have approached him and inquired whether he has a license. See Enten. Aff. ¶ 13. When he responds that he does not, the officers typically inform him that he is violating District of Columbia law by selling his buttons without a license and that if he continues to do so he will be arrested or issued a citation. See id. On one occasion Mr. Enten was arrested, handcuffed and taken into custody; on others he has complied with the orders of the police to cease his activities and to pack up and move on. See id. ¶¶ 14-15. The Court concludes that Mr. Enten's asserted fear of arrest and citation is not an "imagined or wholly speculative" injury. Seegars v. Gonzales, 396 F.3d at 1252-1253 ("a credible statement by the plaintiff of intent to commit violative acts" and "actual threats of arrest made against a specific plaintiff are generally enough to support standing as long as circumstances haven't dramatically changed.").

Defendants also argue that because they have...