Free the Nipple-Fort Collins v. City of Fort Collins

Decision Date15 February 2019
Docket NumberNo. 17-1103,17-1103
Citation916 F.3d 792
Parties FREE THE NIPPLE-FORT COLLINS, an Unincorporated Association; Brittiany Hoagland; Samantha Six, Plaintiffs - Appellees, v. CITY OF FORT COLLINS, COLORADO, Defendant - Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Andrew D. Ringel of Hall & Evans, L.L.C, Denver, Colorado (Gillian Dale and Christina S. Gunn of Hall & Evans, L.L.C., Denver, Colorado; and Carrie Mineart Daggett and John R. Duval, Fort Collins City Attorney’s Office, Fort Collins, Colorado, with him on the briefs), for Defendant-Appellant.

Andrew McNulty (David A. Lane with him on the brief), of Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs-Appellees.

Before BRISCOE, HARTZ, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

The city of Fort Collins, Colorado, enacted a public-nudity ordinance that imposes no restrictions on male toplessness but prohibits women from baring their breasts below the areola. See Fort Collins, Colo., Mun. Code § 17-142 (2015). In response, Free the Nipple, an unincorporated association, and two individuals, Brittiany Hoagland and Samantha Six (collectively, "the Plaintiffs"), sued the City in federal district court. They alleged (among other things) that the ordinance violated the Equal Protection Clause, U.S. Const. amend. XIV, § 1, and they asked for a preliminary injunction to halt enforcement of the ordinance. The district court agreed. It enjoined the City, pending the resolution of the case’s merits, from implementing the ordinance "to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public." Free the Nipple–Fort Collins v. City of Fort Collins , 237 F.Supp.3d 1126, 1135 (D. Colo. 2017). The City then brought this interlocutory appeal to challenge the injunction.

The appeal presents a narrow question: Did the district court reversibly err in issuing the preliminary injunction? We answer no. Exercising interlocutory jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm the district court’s judgment and remand the case to that court for further proceedings consistent with this opinion.


In 2015, after substantial public debate, the Fort Collins city council enacted this public-nudity ordinance:

No female who is ten (10) years of age or older shall knowingly appear in any public place with her breast exposed below the top of the areola and nipple while located: (1) In a public right-of-way, in a natural area, recreation area or trail, or recreation center, in a public building, in a public square, or while located in any other public place; or (2) On private property if the person is in a place that can be viewed from the ground level by another who is located on public property and who does not take extraordinary steps, such as climbing a ladder or peering over a screening fence, in order to achieve a point of vantage. .... The prohibition [on female toplessness] does not extend to women breastfeeding in places they are legally entitled to be.

Fort Collins, Colo., Mun. Code § 17-142(b), (d). Any person who violates this ordinance "shall be guilty of a misdemeanor" and "shall be punished" by a fine of up to $2,650, or up to 180 days in jail, or both. Id. § 1-15(a).

The Plaintiffs immediately sued the City in federal district court, alleging that the public-nudity ordinance violates the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, as well as the Equal Rights Amendment to the Colorado Constitution. Their complaint includes a jury-trial demand and a prayer for relief asking the court (1) to declare the ordinance "unconstitutional on its face and as applied to [the] Plaintiffs" and (2) to prevent the ordinance’s enforcement. Appellant’s App. vol. 1 at 20. Separately, the Plaintiffs moved for a preliminary injunction blocking enforcement of the ordinance and "prohibit[ing] [the City] from discriminatorily arresting [the] Plaintiffs, and all others similarly situated, when they engage in the protected activity of standing topless in public places in Fort Collins, Colorado." Id. at 22.

The City countered with a motion to dismiss arguing that the Plaintiffs had failed to state any claim on which relief could be granted, see Fed. R. Civ. P. 12(b)(6), and a response to the Plaintiffspreliminary-injunction motion. In the latter, the City asserted that a preliminary injunction would unfairly burden the public "by exposure to public nudity" and urged the court to deny the motion. Appellant’s App. vol. 2 at 33.

The district court first addressed the City’s motion to dismiss. It granted the motion on the Plaintiffs’ free-speech claim, agreeing with the City that "topless protests" aren’t protected speech, but allowed the Plaintiffs(federal) Equal Protection Clause and (state) Equal Rights Amendment claims to proceed. Free the Nipple–Fort Collins v. City of Fort Collins , 216 F.Supp.3d 1258, 1262 (D. Colo. 2016). Next, the court turned to the Plaintiffspreliminary-injunction motion. After holding a hearing on the matter, it granted the motion, ruling that the ordinance likely violated the Equal Protection Clause,1 and issued the requested injunction. Free the Nipple , 237 F.Supp.3d at 1128. Pending trial (or other resolution of the case), the preliminary injunction blocks the City from enforcing its public-nudity ordinance "to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public." Id. at 1135.

The City then brought this interlocutory appeal defending the constitutionality of its public-nudity ordinance and challenging the preliminary injunction.


In its appeal, the City asks us to vacate the district court’s preliminary injunction so that it can fully enforce its public-nudity ordinance.2 The City argues that the ordinance’s unequal treatment of male and female toplessness survives constitutional scrutiny, making it likely that the Plaintiffs will lose a merits trial and, in the meantime, precluding them from getting injunctive relief. Before we address the City’s argument, we define our standard of review and explain the rules governing the grant (or denial) of a preliminary injunction. We’ll then apply that framework to determine whether the district court reversibly erred when it issued the preliminary injunction.

I. Standard of Review

District courts have discretion over whether to grant preliminary injunctions, United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc. , 883 F.2d 886, 889 (10th Cir. 1989), and we will disturb their decisions only if they abuse that discretion, Fish v. Kobach , 840 F.3d 710, 723 (10th Cir. 2016). A district court’s decision crosses the abuse-of-discretion line if it rests on an erroneous legal conclusion or lacks a rational basis in the record. Id. (quoting Awad v. Ziriax , 670 F.3d 1111, 1125 (10th Cir. 2012) ). As we review a district court’s decision to grant or deny a preliminary injunction, we thus examine the court’s factual findings for clear error and its legal conclusions de novo. Id.

II. The Legal Standards Governing Preliminary Injunctions

"A preliminary injunction is an extraordinary remedy, the exception rather than the rule." Enter. Mgmt. Consultants, Inc. , 883 F.2d at 888. To succeed on a typical preliminary-injunction motion, the moving party needs to prove four things: (1) that she’s "substantially likely to succeed on the merits," (2) that she’ll "suffer irreparable injury" if the court denies the injunction, (3) that her "threatened injury" (without the injunction) outweighs the opposing party’s under the injunction, and (4) that the injunction isn’t "adverse to the public interest." Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC , 562 F.3d 1067, 1070 (10th Cir. 2009).

But courts "disfavor" some preliminary injunctions and so require more of the parties who request them. See Schrier v. Univ. of Colo. , 427 F.3d 1253, 1258–59 (10th Cir. 2005). Disfavored preliminary injunctions don’t merely preserve the parties’ relative positions pending trial. Id. Instead, a disfavored injunction may exhibit any of three characteristics: (1) it mandates action (rather than prohibiting it), (2) it changes the status quo, or (3) it grants all the relief that the moving party could expect from a trial win. Awad , 670 F.3d at 1125 (citing Summum v. Pleasant Grove City , 483 F.3d 1044, 1048–49 (10th Cir. 2007) ); see also Phillip v. Fairfield Univ. , 118 F.3d 131, 133 (2d Cir. 1997) (explaining that an injunction is "mandatory" if "its terms would alter, rather than preserve, the status quo by commanding some positive act"). To get a disfavored injunction, the moving party faces a heavier burden on the likelihood-of-success-on-the-merits and the balance-of-harms factors: She must make a "strong showing" that these tilt in her favor. Fish , 840 F.3d at 724 (quoting Beltronics , 562 F.3d at 1071 ).

On appeal, the City invokes an even higher standard that requires movants who, like the Plaintiffs, seek to disturb the status quo to "demonstrate not only that the four requirements for a preliminary injunction are met but also that they weigh heavily and compellingly in [the movants’] favor." Appellant’s Opening Br. at 8 (quoting Kikumura v. Hurley , 242 F.3d 950, 955 (10th Cir. 2001) ). But we "jettison[ed]" the heavily-and-compellingly requirement over a decade ago. O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft , 389 F.3d 973, 975 (10th Cir. 2004) (per curiam), aff’d sub nom Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal , 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). Today, "the requirement that a movant requesting a disfavored injunction must make a showing that the traditional four factors weigh heavily and compellingly in [the movant’s] favor is no longer the law of the circuit." Schrier , 427 F.3d at 1261.

The preliminary injunction at issue here prevents the City...

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