Herridge v. City of Galveston, CIVIL ACTION NO. 3:18-CV-00160
| Decision Date | 04 February 2019 |
| Docket Number | CIVIL ACTION NO. 3:18-CV-00160 |
| Parties | JOSHUA HERRIDGE, Plaintiff, v. CITY OF GALVESTON, TEXAS, et al, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Before the Court is the Amended Motion for Preliminary Injunction filed by the Plaintiff, Joshua Herridge ("Herridge"). Dkt. 37. Having reviewed the motion, the response, the reply, the parties' evidence, and the applicable law, the Court ORDERS that the motion be DENIED.
In 2015, 2016, 2017, and 2018, Herridge traveled to Galveston, Texas to preach using a loudspeaker at the annual Mardi Gras parade. During these years, Galveston had a municipal ordinance in effect (the "Ordinance"), which made it "unlawful for any person to operate a loudspeaker or amplifier without a permit issued by the city manager" and allowed the city manager to "revoke any such permit after issue." Dkt. 37-1 at Appx.015. Each year Herridge attempted to preach, he was either asked to stop using his loudspeaker because he did not have a permit, or his permit was revoked. See Dkt. 37 at 6, 8-9.
Herridge filed this suit against the City of Galveston ("City") and its manager and marshal, alleging that the Ordinance violated the First Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See Dkt. 1. Subsequently, the City revised the Ordinance. In the preamble to the Ordinance, the City states that the revisions were necessary because enforcement of the Ordinance had "proven difficult due to provisions which are vague and ambiguous." See Dkt. 37-1 at Appx.029. The City also states that the revisions were made to address "deficiencies" in the Ordinance to clarify when permits are required, how sound is measured on the receiving property, and "what noise is unlawful." See id.
Section 24-5 of the Ordinance as revised establishes 1) when a permit is required and 2) volume restrictions for permit holders. The Ordinance provides in pertinent part:
Sound amplification permits are required for any loudspeaker or amplifier uses which are not part of the ordinary normal day-to-day operations of a legally operating commercial business or governmental facility for which the loudspeaker is placed in the interior of the business or government facility. The decibel restrictions listed in section 24-2 [] shall apply to legally operating commercial businesses and loudspeaker permit holders....
Galveston, Texas, Municipal Code § 24-5.
The Ordinance also establishes the permit application procedure and the circumstances under which officials may revoke a permit.
Finally, the Ordinance establishes the factors officials will consider in deciding whether to make exceptions to the hour and sound level restrictions for permit holders:
In the pending motion, Herridge argues that, despite the revisions, the Ordinance is still unconstitutional, both facially and as applied. See Dkt. 36. Specifically Herridge argues that the Ordinance should be enjoined pending final resolution of his lawsuit because it (1) "[premises] revocation of [a] permit on subjective and vague standards"; (2) gives City officials "unbridled discretion" to grant or deny permits and makeexceptions to hour and volume restrictions for permit applicants; and, (3) unconstitutionally burdens speech by "requiring [a] 10-working-day notice and $25 Fee" to apply for a permit. See Dkt. 37 at 2. An evidentiary hearing was held regarding the motion. For the reasons discussed below, the Court denies Herridge's motion for preliminary injunction.
The Fifth Circuit has cautioned repeatedly "that injunctive relief is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion." Holland America Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985). In order to receive such relief, the movant has the burden of demonstrating: (1) a substantial likelihood that it will prevail on the merits, (2) a substantial threat that it will suffer irreparable injury if the injunction is not granted, (3) that its threatened injury outweighs the threatened harm to the party whom it seeks to enjoin, and (4) that granting the preliminary injunction is in the public's interest. PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005). If a movant fails to carry the burden "on any one of [these] four prerequisites a preliminary injunction may not issue, and if issued, will be vacated." Anderson v. Douglas & Lomason Co., 835 F.2d 128, 133 (5th Cir. 1988).
Herridge has not demonstrated a substantial likelihood that he will be successful in having the Ordinance declared unconstitutional as vague or as an impermissible burden on his right to free speech. Chicago v. Morales, 527 U.S. 41, 56-57 (1999). "Courts are inclined to adopt that reasonable interpretation of a statute which removes it farthest from possible constitutional infirmity." Kovacs v. Cooper, 336 U.S. 77, 85 (1949).
One reason Herridge asserts that the Ordinance is unconstitutional is because it allows the City to revoke a permit when "consistent with public health, safety and welfare;" "as necessary to promote public business;" or when the loudspeaker device is used to "harass or intimidate" members of the public. Dkt. 37-1 at 17-22. Herridge argues that the quoted language above is unconstitutionally vague and creates an unconstitutional "heckler's veto" based on the content of the speech. Dkt. 37 at 18-19. In support of this argument, Herridge cites a number of cases where courts have granted injunctions because a statute's language was found to be unconstitutionally vague. Id.
However, Herridge's argument is based on an incomplete and selective reading of the Ordinance. Unlike in the cases cited by Herridge, the alleged vague language appears to be qualified by an ascertainable standard—in this case a finding of the presence of "excessive noise"— that defines and limits the City's ability to revoke a permit. See Gaughan v. City of Cleveland, No. 1:05 CV 180, 2005 U.S. Dist. LEXIS 29862, at *24-26 (N.D. Ohio 2005).1 As the Ordinance provides in pertinent part:
...The city manager or a law enforcement officer responding to a complaint about excessive noise may revoke any such permit after issue when consistent with public health, safety and welfare and as necessary to promote the public business; or when the loudspeaker device is used to harass or intimidate members of the public; or when the loudspeaker device is used to amplify language which by very utterance tends to incite an immediate breach of the peace.
Galveston, Texas, Municipal Code § 24-5 (emphasis added). What constitutes "excessive noise" can be determined by reference to the Ordinance's hour and decibel restrictions, which also provide an ascertainable method for measuring the noise level of a loudspeaker. See Galveston, Texas, Municipal Code § 24-2.
At the evidentiary hearing and in its pleadings, the City stated that a finding of the presence of "excessive noise" is required before a permit can be revoked. Herridge offered no evidence that the City has ever revoked a permit without determining the presence of excessive noise. Arguably, this qualification of the alleged unconstitutionally vague Ordinance language gives persons of ordinary intelligence fair notice of the prohibited conduct. See e.g. Munn v. City of Ocean Springs, No. 1:12CV97-LG-JMR, 2012 U.S. Dist. LEXIS 120289, at *10-11 (S.D. Miss. 2012) ().
Another reason Herridge asserts that the Ordinance is unconstitutional is because it gives...
To continue reading
Request your trial