Moore v. Brown

• Decision Date: 22 August 2017
• Docket Number: No. 16-11335,16-11335
• Citation: 868 F.3d 398
• Parties: Ricky D. MOORE, Plaintiff–Appellant v. David O. BROWN, in his official capacity as Chief of Police for the Dallas Police Department; Larry D. Litton, individual and official capacity as Sergeant for the Dallas Police Department; City of Dallas, Texas, Defendants–Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

868 F.3d 398

Ricky D. MOORE, Plaintiff–Appellant

v.David O. BROWN, in his official capacity as Chief of Police for the Dallas Police Department; Larry D. Litton, individual and official capacity as Sergeant for the Dallas Police Department; City of Dallas, Texas, Defendants–Appellees

No. 16-11335

United States Court of Appeals, Fifth Circuit.

FILED August 22, 2017

Nathan W. Kellum, Center for Religious Expression, Memphis, TN, James A. Pikl, Trial Attorney, Scheef & Stone, L.L.P., Frisco, TX, for Plaintiff–Appellant.

Rebekah Ricketts, William Thomas Thompson, Robert Charles Walters, Gibson, Dunn & Crutcher, L.L.P., Peter Brooke Haskel, Assistant City Attorney, Stacy Jordan Rodriguez, City Attorney's Office for the City of Dallas, Dallas, TX, for Defendants–Appellees.

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

Plaintiff Ricky Moore appeals the district court's denial of his motion for preliminary injunction to enjoin the enforcement of two rules affecting his ability to speak in a public park. We find no error on the part of the district court and therefore AFFIRM.

I. Background

This dispute centers on Plaintiff Ricky Moore's speech rights in Klyde Warren Park, a 5.2-acre park that connects downtown and uptown Dallas, Texas. Despite its relatively small size, the park contains numerous facilities for recreational activities, including two pavilions, a children's park, a playground, and several open grassy areas, including the Great Lawn. The park is managed and operated by the Woodall Rodgers Park Foundation in accordance with the Woodall Rodgers Deck Plaza Use Agreement. The Use Agreement authorizes the Foundation to issue "reasonable rules and regulations" for the park. Two of these rules mandate when an individual must possess a permit at Klyde Warren Park. The first rule states that "a permit may ... be required for any activity that is intended to attract an audience (a ‘public event’)." Second, the Foundation prohibits "structures larger than 4' by 4'" in the park without a permit.

Moore is an evangelical Christian and a branch director of Open-Air Campaigners, a Christian mission organization. In order to spread his Christian message, Moore looks to have conversations with individuals or small groups in busy public places in order to share his faith. Moore generates these conversations with the use of a portable sketch board that displays painted riddles. Moore sets up the sketch board and waits for people to come and ask about the riddle. The sketch board is approximately four feet in width, two feet in length, and six-and-a-half feet in height.

Moore first started going to Klyde Warren Park with his sketch board in early 2013. Moore's location of choice in the park was on or next to Hart Boulevard, which is a pedestrian-only walking path that cuts through the Great Lawn. Moore alleges he was initially able to set up his sketch board and talk to people without incident. But beginning in April 2013, park personnel informed Moore on multiple separate occasions that his expression violated the public event rule. In each instance, Moore was asked to (1) apply for a permit with the Foundation, (2) take his expression to Pearl Lawn, another section of the park, or (3) leave the park entirely. These interactions culminated on April 30, 2015, when Moore was given these same three options by park staff but declined to leave because he believed his expression was protected under the First Amendment. Moore subsequently received a criminal trespass warning from Defendant Sergeant Larry Litton and was prohibited from returning to any area of Klyde Warren Park for ninety days.

Moore subsequently wrote a letter addressed to the Mayor of Dallas, the City Attorney, and the Chief of Police explaining his situation and asserting that the rules were not constitutionally valid. The Foundation responded by defending its actions and suggesting that Moore could engage in his expression on the external sidewalks without a "public event" permit. The Foundation letter stated that Moore would still have to obtain "a permit before erecting a structure on the external sidewalks." Moore was invited to engage in further dialogue, including an in-person meeting. Instead, Moore sued the City of Dallas, Chief of Police David O. Brown, in his official capacity, and Sergeant Litton, in his individual and official capacity.

A day after filing his complaint, Moore filed a motion for preliminary injunction. Defendants subsequently sent Moore a letter before filing a response to his motion "to make clear [the Foundation's] position regarding Mr. Moore's desire to use the Park for his stated purposes." This second letter stated that:

[a]s we have discussed on numerous occasions, and consistent with Park policies, Mr. Moore is free to engage in the type of activity described in the Complaint anywhere on the external sidewalks of Klyde Warren Park—including areas of Hart Boulevard other than the walkway single contiguous to the Great Lawn—provided that his activity does not result in intentional damage to Park property or unduly interfere with a previously-issued permit for the same area.

A footnote further explained that:

[d]ue to the Park's interest in safety and in avoiding damage to Park property, a permit is generally required for structures larger than 4' x 4'. Based on the allegations in Mr. Moore's complaint, the Park is happy to issue a long-term permit for the use of his sketch board in the locations described above.

The letter closed by stating "[b]ecause Mr. Moore is free to engage in the conduct he has described in areas that are ‘on or in close vicinity to Hart Boulevard,’ the Park believes that any confusion should now be resolved, and that there is no need for further litigation."

Six days after sending this letter, Defendants filed their response to Moore's motion for preliminary injunction. In that response, Defendants argued that the public event rule did not apply to Moore and that his challenge to that rule was moot. The remainder of Defendants' response argued, inter alia, that Moore's use of the sketch board violated the "structure rule," and that the structure rule was constitutional.

The district court denied Moore's motion. Moore's challenge to the public event rule was held to be moot as Defendants conceded in their response that Moore's activity "does not constitute a public event" and "the City Defendants represent that they will no longer apply the Public Event Rule against Moore." As to the structure rule, the district court first held that Moore failed to demonstrate a substantial likelihood of success on the merits of his First Amendment claim because "Moore has not shown that the Structure Rule, as applied to him, violates his First Amendment rights." It also held that Moore failed to establish that the structure rule was an unreasonable time, place, or manner restriction. Finally, the court determined that Moore failed to demonstrate a substantial likelihood of success on the merits of his Fourteenth Amendment claim because Moore failed to demonstrate that the structure rule was unconstitutionally vague. Moore timely appealed.

II. Standard of Review

We review a district court's denial of a preliminary injunction for an abuse of discretion. Opulent Life Church v. City of Holly Springs , 697 F.3d 279, 288 (5th Cir. 2012). In order to obtain a preliminary injunction, a movant must demonstrate (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction does not issue; (3) that the threatened injury outweighs any harm that will result if the injunction is granted; and (4) that the grant of an injunction is in the public interest. Byrum v. Landreth , 566 F.3d 442, 445 (5th Cir. 2009). Factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. Id.

Under the clearly erroneous standard, this court upholds findings by the district court that are plausible in light of the record as a whole. Chemtech Royalty Assocs., L.P. v. United States , 766 F.3d 453, 460 (5th Cir. 2014). Moore's argument, in essence, is that he is entitled to a preliminary injunction as a matter of law. "Only under ‘extraordinary circumstances' will this court reverse the denial of a preliminary injunction." Anderson v. Jackson , 556 F.3d 351, 355–56 (5th Cir. 2009) (quoting White v. Carlucci , 862 F.2d 1209, 1211 (5th Cir. 1989) ).

III. Discussion

Moore's appeal asserts a number of challenges to the district court's determination that Moore failed to demonstrate a substantial likelihood of success on the merits on his claims that the structure rule and the public event rules were unconstitutional.¹ We agree with the district court's determination. At this early stage in the litigation, Moore has not demonstrated a substantial likelihood of success on his challenges to either rule.

A. Structure Rule

The structure rule prohibits "structures larger than 4' by 4'>" without a permit. Moore argues that the structure rule is unconstitutional because the rule: (1) is overly broad or not narrowly tailored; (2) grants unbridled discretion; and (3) is unduly vague. None of these arguments, however, constitute "extraordinary circumstances" necessitating the reversal of the district court. Anderson , 556 F.3d at 355–56.

1. The Structure Rule Is Narrowly Tailored and Leaves Open Ample Alternative Channels of Communication

In concluding that Moore failed to establish a substantial likelihood of success on his First Amendment claim against the structure rule, the district court held that: (1) Moore failed to establish that the structure rule is an unreasonable time, place, and manner restriction; (2) the structure rule affords adequate alternative means of expression; and (3) Moore had not established that Defendants enforced the structure rule in a discriminatory manner or otherwise singled him out for selective prosecution. As part of its holding, the district court found...