Isbell v. City of Oklahoma City

• Decision Date: 02 December 2011
• Docket Number: Case No. CIV-11-1423-D
• Parties: SARAH E. ISBELL, et al., Plaintiffs, v. CITY OF OKLAHOMA CITY, OKLAHOMA, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

SARAH E. ISBELL, et al., Plaintiffs,

v.CITY OF OKLAHOMA CITY, OKLAHOMA, et al., Defendants.

Case No. CIV-11-1423-D

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA

Dated: December 2, 2011

Summary of Ruling

This temporary restraining order, as set forth more fully below, is entered for the purpose of preserving the status quo between the parties so that a more full presentation, and more deliberate consideration of the issues, may be made. It is not intended to be an indication of how the Court may rule on the motion for preliminary injunction or on the merits of this case.

ORDER

The matter before the Court is Plaintiffs' Original Complaint, Motion for TRO and Injunction, and Brief in Support, filed pro se on December 1, 2011. Because this filing was insufficient to satisfy the requirements of Fed. R. Civ. P. 65(b)(1) for issuance of a temporary restraining order (TRO) without notice, the Court directed that notice be given to Defendant City of Oklahoma City,¹ and the Court convened a hearing on December 2, 2011. Plaintiffs appeared inperson. Defendant appeared through assistant municipal counselors, Richard C. Smith and Jennifer M. Warren; Oklahoma City Police Chief William Citty and Assistant City Manager M.T. Berry also appeared. The Court has considered the Original Complaint and motion papers, including the supporting declarations and exhibits, the objection filed by City Manager James Couch, and has heard the arguments of counsel for the parties. The Court now issues its ruling.

This civil rights action under 42 U.S.C. § 1983 seeks declaratory and injunctive relief and damages for alleged violations of Plaintiffs' First Amendment rights of free speech, peaceable assembly, and petition. Plaintiffs are organizers or participants in a local political movement or organization known as "Occupy OKC," which was formed as part of a nationwide movement that began with Occupy Wall Street. Occupy OKC has been occupying a downtown Oklahoma City municipal park area, Kerr Park, since approximately October 11, 2011. By this action, Plaintiffs challenge the City's enforcement, or threatened enforcement, of municipal ordinances setting park hours, requiring permits for special events, and regulating camping activities. Plaintiffs contend that certain municipal ordinances are unconstitutional, or are being unconstitutionally applied to them, and that municipal officials have taken retaliatory actions to remove Occupy OKC from Kerr Park.

For the following reasons, the Court finds that a TRO should issue in order to permit an orderly and deliberate consideration of whether a preliminary injunction is warranted in this matter. The purpose of a TRO is to preserve the status quo between the parties and prevent irreparable harm pending an evidentiary hearing regarding whether injunctive relief should be ordered. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). The "status quo" is the last peaceable or uncontested status between the parties prior to the conflict at issue. Schrier v. University of Colorado, 427 F.3d 1253, 1260 (10th Cir. 2005). As between Plaintiffs and the City, their last peaceable or uncontested status apparently ended on November 28, 2011, when PlaintiffSarah Isbell was refused a permit for Occupy OKC's continued political rally in Kerr Park and informed that the park would be closed between the hours of 11:00 p.m. and 5:00 a.m. beginning at 11:00 p.m. that day. Plaintiffs were permitted to remain in the park after the initial deadline solely to give Plaintiffs an opportunity to seek court intervention.

The requirements for issuance of a TRO are essentially the same as those for a preliminary injunction: "the moving party must establish that (1) the movant will suffer irreparable injury unless the injunction issues; (2) the threatened injury . . . outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits." Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003); see O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1177 (10th Cir. 2003), reh'g en banc, 389 F.3d 973 (10th Cir. 2004), aff'd sub nom., 546 U.S. 418 (2006). Although the concept of irreparable harm is not easily defined, the movant must identify an injury that is "both certain, great, actual and not theoretical." See Heideman, 348 F. 3d at 1189; accord Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir.2001). A movant "satisfies the irreparable harm requirement by demonstrating 'a significant risk that he or she will experience harm that cannot be compensated after the fact by monetary damages.'" RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009) (quoting Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir.2003)). Further, under the modified standard applied in this circuit in appropriate cases, if a movant establishes that the first three requirements tip strongly in his favor, the movant "may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial,difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation." Greater Yellowstone, 321 F.3d at 1255-56; see O Centro, 389 F.3d at 976.²

In this case, Plaintiffs have made a sufficient showing of irreparable harm if the City goes forward with its plan to enforce the 11:00 p.m. to 5:00 a.m. curfew, resulting in the removal of Occupy OKC from Kerr Park during that time period each day. It is well-settled that a "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality). The Court finds that the potential injury to Plaintiffs if the City is allowed to proceed outweighs any damage that the City may suffer from the issuance of a TRO. The City, through counsel, stated unequivocally at the hearing its agreement that no attempt to remove Occupy OKC from the park was warranted while the instant motion is pending before the Court....