Fresno v. Cnty. of Fresno

Decision Date13 December 2011
Docket NumberNo. C 11–01894 CRB.,C 11–01894 CRB.
Citation835 F.Supp.2d 849
PartiesOCCUPY FRESNO, et al., Plaintiffs, v. COUNTY OF FRESNO, et al., Defendants.
CourtU.S. District Court — Eastern District of California

OPINION TEXT STARTS HERE

Carolyn D. Phillips, Attorney at Law, Robert Navarro, Attorney At Law, Fresno, CA, Elizabeth E. Martinez, Law Offices of Elizabeth E. Martinez, Clovis, CA, for Plaintiffs.

Bruce Bradford Johnson, Jr., Fresno County Counsel, Fresno, CA, Oliver W. Wanger, Wanger Jones Helsley P.C., Fresno, CA, for Defendants.

MEMORANDUM AND ORDER GRANTING IN PART MOTION FOR PRELIMINARY INJUNCTION

CHARLES R. BREYER, District Judge.

Plaintiffs Occupy Fresno, et al., have filed a Motion for Preliminary Injunction against Defendants County of Fresno, et al. Based on the pleadings of record, the evidence submitted, and the arguments of counsel, the Court holds that Plaintiffs have established a likelihood of success on the merits on two of their claims. Accordingly, the Court GRANTS the Motion, in part.

I. FACTS AND PROCEDURAL BACKGROUND

On November 13, 2011, Plaintiffs Occupy Fresno, an unincorporated association, Vanessa Aranda, Dallas John Blanchard, Jr., Noah Canton, William Delara, Carlos Diaz, Michael Dominquez, Matthew Stephen Duris, Chad Austin Hopper, Joseph Hunter and Ruben Verdugo (collectively, Plaintiffs) filed their Complaint for declaratory relief, injunctive relief and damages pursuant to 42 U.S.C. § 1983 against defendants County of Fresno, Fresno County Board of Supervisors, Margaret Mims in her official capacity as Fresno County Sheriff, John Navarette in his official capacity as Fresno County Administrative Officer, Jorge Granados in his official capacity as Assistant Director of Public Works and Planning, John Thompson in his official capacity as Resources Manager of Public Works and Planning, and Does 1 through 50 (collectively, Defendants), alleging that a number of Fresno County ordinances, on their face and as applied, unconstitutionally bar or unreasonably interfere with Plaintiffs' ability to assemble and exercise free speech at Courthouse Park in downtown Fresno. See dkt. 1. On the same day, Plaintiffs filed an ex parte Motion for a Temporary Restraining Order and Preliminary Injunction prohibiting Defendants from further enforcing the ordinances, arresting persons engaged in protected speech, assembly or expressive conduct at Courthouse Park and directing such persons to desist or disperse. See dkt. 13.

In an Order issued November 15, 2011, the Court denied Plaintiffs' Motion for a Temporary Restraining Order without prejudice, finding that Plaintiffs had failed to provide a valid reason for proceeding ex parte as required under Federal Rule of Civil Procedure 65(b). See dkt. 26. The Court set a briefing schedule to address Plaintiffs' request for a preliminary injunction. Id.

On November 17, 2011, Plaintiffs filed a “Renewed Motion for Temporary Restraining Order, Declaratory Relief and Preliminary Injunction.” See dkt. 29.

On November 21, 2011, Plaintiffs filed an amended Complaint against Defendants, asserting three causes of action for (1) “Interference with the Right to Peaceably Assemble, the Right of Speech; and, the Right to Petition the Government for a Redress of Grievances; for Declaratory Relief (First and Fourteenth Amendments; California Constitution, Art. 1, §§ 1–3 [ ] ),” (2) “Interference with the Right to Peaceably Assemble, the Right of Speech; and, the Right to Petition the Government for a Redress of Grievances; for Injunctive Relief (First and Fourteenth Amendments; 42 U.S.C. § 1983; California Constitution, Art. 1, §§ 1–3) and (3) “violation of the Due Process Clause of the Fourteenth Amendment Procedural Due Process.” See dkt. 31.

On November 22, 2011, Plaintiffs filed a Motion for Temporary Restraining Order During Pendency of the Motion for Preliminary Injunction,” in which they requested “a TRO, although a much more limited TRO, in the nature of a ‘truce agreement.’ See dkt. 33.

In an Order issued November 23, 2011, the Court denied Plaintiffs' November 17, 2011 Motion as having been directed at the original Complaint, which was rendered inoperative by the filing of the amended Complaint. See dkt. 36. The Court further denied Plaintiffs' November 22, 2011 Motion, but deemed that Motion to be the operative motion for preliminary injunction and directed the parties to abide by the briefing schedule set forth in the Court's November 15, 2011 Order. Id.

On November 24, 2011, Plaintiffs filed a Motion for Reconsideration of the Court's November 23, 2011. See dkt. 33. On December 16, 2011, 2011 WL 6066500 (E.D.Cal. Dec. 02, 2011), the Court denied Plaintiffs' Motion for Reconsideration but modified the previous briefing schedule to expedite the reply deadline and hearing date on Plaintiffs' Motion for Preliminary Injunction. See dkt. 41.

On December 2, 2011, Defendants filed a lengthy (53–page) Opposition to Plaintiffs' Motion for Preliminary Injunction. See dkt. 42. On December 5, 2011, Plaintiffs filed their Reply to Defendants' Opposition. See dkt. 75. 1 Then, on December 7, 2011, the Court entered an Order finding it necessary to recuse all of the judges in the Eastern District of California from hearing this case. See dkt. 86. Accordingly, all then-pending dates were vacated. Id. The case was subsequently reassigned to this Court, see dkt. 89, and, following consultation with the parties, the hearing on the Motion for Preliminary Injunction was set for, and held, Monday, December 12, 2011.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 65(a) governs the issuance of preliminary injunctions. To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). “A preliminary injunction is an extraordinary remedy never awarded as a matter of right. In each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.’ ‘In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.’ Id. at 24 (internal citations omitted). The Ninth Circuit has adopted a sliding scale approach to preliminary injunctions in which “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (2011).2

There are two types of facial constitutional challenges. “First, a plaintiff seeking to vindicate his own constitutional rights may argue that an ordinance ‘is unconstitutionally vague or ... impermissibly restricts a protected activity.’ See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033 (9th Cir.2006) (quoting Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998)). “Second, ‘an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court.’ Santa Monica Food Not Bombs, 450 F.3d at 1033 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)). The Court understands Plaintiffs to be raising the first type of facial challenge.

“An as-applied challenge contends that the law is unconstitutional as applied to the litigant's particular speech activity, even though the law may be capable of valid application to others.” See Foti, 146 F.3d at 635 (citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 & n. 22, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)).

III. APPLICABLE FIRST AMENDMENT PRINCIPLES

The First Amendment provides, Congress shall make no law ... abridging the freedom of speech ....” U.S. Const., Amdt. 1. It applies to states and local governments under the Due Process Clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). However, “protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.” Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 799–800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Speech restrictions imposed by the government on government property are analyzed under a “forum-based approach.” Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). Under this approach, the restrictions the government may impose depend upon the “nature of the property.” See Cornelius, 473 U.S. at 799–800, 105 S.Ct. 3439.

The Supreme Court has established three categories of property: the traditional public forum, the designated public forum and the nonpublic forum. Id. at 802, 105 S.Ct. 3439. “Traditional public fora are defined by the objective characteristics of the property, such as whether, ‘by long tradition or by government fiat,’ the property has been ‘devoted to assembly and debate.’ ... Designated public fora, in contrast, are created by purposeful government action. ‘The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse.’ ... Other government properties are either nonpublic fora or not fora at all.” Arkansas Educ. Television Com'n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633,...

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