Medlin v. Palmer, s. 88-1060

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation874 F.2d 1085
Docket Number88-1646,88-1118,Nos. 88-1060,s. 88-1060
PartiesJ. Marshall MEDLIN, et al., Plaintiffs-Appellants, v. Lori PALMER, in her individual capacity and in her official capacity as Dallas City Councilwoman, et al., Defendants-Appellees. Summary Calendar.
Decision Date13 June 1989

Page 1085

874 F.2d 1085
J. Marshall MEDLIN, et al., Plaintiffs-Appellants,
Lori PALMER, in her individual capacity and in her official
capacity as Dallas City Councilwoman, et al.,
Nos. 88-1060, 88-1118, 88-1646
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
June 13, 1989.
Rehearing Denied July 28, 1989.

Page 1086

Donovan Campbell, Jr., Locke, Purnell, Rain & Harrell, Dallas, Tex., J. Shelby Sharpe, Fort Worth, Tex., for plaintiffs-appellants.

Carla Perantoni Walsh, Washington, D.C., for amicus curiae Feminists for Life of America, Inc.

James M. Braden, David A. French, Manassas, Va., John W. Whitehead, Culpepper, Va., for amicus curiae, the Rutherford Institute.

Paul K. Pearce, Jr., Margaret Mary O'Neill, Asst. County Attys., Dallas, Tex., for Palmer, et al.

Jeff Smith, Cedar Hill, Tex., for Dr. William W. West.

Carol Stephenson, Maureen N. Armour, Akin, Gump, Strauss, Hauer & Feld, Dallas, Tex., for Pettigrew, et al.

David E. Bird, Dallas Swan, Bedsole & Bird, Dallas, Tex., for Osborne, et al.

Alfred L. Ruebel, Bridget A. Braithwaite, Erhard, Ruebel & Jennings, Dallas, Tex., for Taft, et al.

Neil H. Cogan, Dallas, Tex., for Dallas Medical Ladies Clinic, et al.

Michael F. Linz, Dallas, Tex., for amicus curiae Dallas Civ. Liberties Union.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, and JOHNSON and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

Plaintiffs/appellants, various anti-abortion activists who challenge the constitutionality of a Dallas city ordinance prohibiting the use of amplified sound near certain medical and educational facilities, appeal from the district court's denial of their motion for preliminary injunction, the grant of a defense motion for summary judgment, and the grant of a defense motion for judgment on the pleadings. Concluding that the district court's actions were not improper, we affirm.


On July 17, 1985, the Dallas City Council amended existing Dallas City Ordinance No. 13744 that banned the use of loudspeakers which caused "loud and raucus noises" within 300 feet of any hospital or school. Modifications to the ordinance included the following: the ordinance as amended prohibited loudspeaker use within 150 feet of schools which were in session, within 150 feet of single-family, duplex, or multiple family dwellings, within 150 feet of a hospital, nursing home, or any facility that provides outpatient surgical services. The amended ordinance provided for a

Page 1087

maximum $200 fine, upon conviction, for violators of any provision of the ordinance. 1

The Dallas City Council's amendment of the old ordinance took place at a time when certain individuals and groups, including three of the plaintiffs in the instant action, were picketing various clinics in the Dallas area which performed abortions. These individuals and groups, in the pursuit of their moral, religious and political objectives, had been utilizing hand-held amplifiers or "bull-horns" to project their sentiments to clinic patrons from sidewalk vantage points. The amended ordinance (hereafter the "ordinance") effectively banned this particular activity since the sidewalks which had been used by the protestors fell within the 150 foot "quiet zone" surrounding each facility. The protestors nevertheless were free to picket, distribute literature, and speak without the bullhorns.

In August 1985, plaintiff/appellant Marshall Medlin (Medlin) was using a bullhorn to read his Bible within the "quiet zone" around Dallas' Routh Street Clinic when he was arrested by Dallas police for violating the ordinance. Similarly, that month plaintiff/appellant Jeanene Clarke (Clarke) was threatened with arrest for delivering a religious message via bullhorn while standing

Page 1088

in the "quiet zone" around Dallas Medical Ladies Clinic in violation of the ordinance. Finally in August, 1985, plaintiff/appellant Akemi Porier (Porier), was threatened with arrest for using a bullhorn to administer a religious message also within the "quiet zone" surrounding the Metroplex clinic.

Thereafter, Medlin, Clarke and Porier each filed suit in the United States District Court against members of the Dallas City Council, the Dallas Chief of Police (the "city defendants"), various Dallas area abortion clinics (the "clinic defendants"), and certain other individuals. Medlin, Clarke and Porier alleged that the ordinance was unconstitutional because it violated their First Amendment rights, improperly delegated interpretive powers, and was vague. Medlin also alleged that he was falsely arrested and imprisoned. Another plaintiff/appellant, Last Harvest Ministries, Inc., contended that the ordinance violates the Equal Protection clause because it does not include within its provisions, similar protection for abortion alternative facilities. Further, the plaintiffs alleged that the Dallas city defendants conspired with the clinic defendants to deprive the plaintiffs of their constitutional rights in violation of 42 U.S.C. Secs. 1983, 1985 and 1986. Moreover, the plaintiffs essentially accused the city defendants and the Dallas Police Department of engaging in a virtual "wave of terror" against them through selective overenforcement of the ordinance.

Based on the foregoing allegations, the plaintiffs sought a preliminary injunction to prevent enforcement of the ordinance. The district court, concluding that the plaintiffs had failed to demonstrate a substantial likelihood of success on the merits of the case denied the motion for a preliminary injunction. Meanwhile, the city defendants moved for summary judgment and the clinic defendants moved to dismiss the complaint as against them on Rule 12(b)(6) grounds. The district court granted the motion for summary judgment in favor of the city defendants on core constitutional issues and the private defendants' Rule 12(b)(6) motion to dismiss. The plaintiffs thereafter filed three separate appeals; they appealed the denial of their motion for a preliminary injunction, the grant of partial summary judgment in favor of the city defendants, and the grant of the Rule 12(b)(6) motion in favor of the clinic defendants. Because the various legal issues presented by the three separate appeals arise from the same set of operative facts, this Court has, on its own motion, 2 consolidated these cases.


At the outset, we are compelled to recognize the depth and intensity of emotion associated with the moral, religious and political concerns which underlie the legal issues in this controversy. While we remain mindful of this circumstance and the evocative nature of the case, we are nevertheless constrained to focus on the legal issues presented by this appeal. The central legal issue which the district court faced, and which we now must address, is the constitutionality of the amended ordinance. In the district court, the plaintiffs maintained that the ordinance is unconstitutional on several grounds. They contended that the ordinance is vague, that it constitutes an unconstitutional delegation of interpretive powers and that the ordinance unconstitutionally deprives them of their First Amendment rights of freedom of speech and free exercise of religion. The district court, however, concluding that the ordinance was constitutional as a matter of law, granted summary judgment in favor of the city defendants.

On appeal, the plaintiffs lodge several arguments with respect to the district court's grant of summary judgment. On brief, they contend that the city defendants should have established through evidentiary materials all elements of a viable defense, and that because the city defendants failed to do so, the district court should have denied their motion for summary judgment. In that regard, the plaintiffs direct our attention to the fact that the city

Page 1089

defendants, in moving for summary judgment, failed to attach "a single affidavit" to their motion for summary judgment but rather attached only a certified copy of the ordinance itself. Moreover, on brief, the plaintiffs argue that because the city defendants failed to "meet this procedural requirement of submitting sufficient evidentiary materials to establish the essential elements of their defense" the district court should not have granted the defense motion for summary judgment. They advance the argument that this circumstance, standing alone, is sufficient to warrant reversal of the district court judgment. The...

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