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Eugene Davidovich, An Individual; Davina v. City of San Diego

December 1, 2011

EUGENE DAVIDOVICH, AN INDIVIDUAL; DAVINA LYNCH, AN INDIVIDUAL; AND JOHN KENNEY, AN INDIVIDUAL,
PLAINTIFFS,
v.
CITY OF SAN DIEGO, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Ex Parte Application for Temporary Restraining Order filed by Plaintiffs Eugene Davidovich, Davina Lynch, and John Kenney. (ECF No. 7).

I. Background

On November 16, 2011, Plaintiffs Eugene Davidovich, Davina Lynch, and John Kenney initiated this action by filing a "Complaint for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction and Declaratory Relief" against the City of San Diego. (ECF No. 1). The Complaint asserts two claims titled: "Injunctive Relief" and "Declaratory Relief" and alleges that San Diego Municipal Code section 54.0110 titled "Unauthorized Encroachments Prohibited" which provides: "It is unlawful for any person to erect, place, allow to remain, construct, establish, plant, or maintain any vegetation or object on any public street, alley, sidewalk, highway, or other public property or public right-of-way...." is unconstitutional. Id. at 2-3. Plaintiffs seek "a declaration that [San Diego Municipal Code] section 54.0110 is void for vagueness and overbreadth" and an injunction "prohibiting Defendant and its agents or employees from enforcing [San Diego Municipal Code] section 54.0110." Id. at 3-4. The declarations attached to the Complaint state that Plaintiffs are members of the Occupy San Diego movement, which is "a protest in solidarity with the Occupy Wall Street movement for economic and social justice" being held at the Civic Center Plaza in downtown San Diego. (ECF No. 1-1 at 2; 1-5 at 1; 1-6 at 1). Plaintiffs allege that the "police sometimes choose to enforce section 54.0110 very strictly, requiring that no one entering Civic Center Plaza place any object on the ground, particularly when members of the protest group 'Occupy San Diego' enter the Plaza. On other occasions or with respect to other individuals, the police allow objects to be placed on the ground." (ECF No. 1 at 3). Plaintiffs allege that the "ordinance has a chilling effect on free expression ...." Id.

On November 17, 2011, Plaintiffs filed an Ex Parte Application for Temporary Restraining Order. (ECF No. 7). On November 18, 2011, Defendant City of San Diego filed an Opposition to the Ex Parte Application for Temporary Restraining Order. (ECF No. 18). On November 21, 2011, Plaintiffs filed a Reply. (ECF No. 23).

On November 21, 2011, the Court heard oral argument on the Ex Parte Application for Temporary Restraining Order. At oral argument, Plaintiffs stated that they assert a facial challenge to San Diego Municipal Code section 54.0110 in the Ex Parte Application for Temporary Restraining Order and Plaintiffs reserved the right to bring an as-applied challenge.

II. Discussion

When the non-movant has received notice, as here, the standard for issuing a temporary restraining order is the same as that for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). "[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotation omitted). To obtain preliminary injunctive relief, a movant must show "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, 555 U.S. 7, 20 (2008); see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) ("[S]erious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction....").

A. Success on the Merits

Plaintiffs seek "a temporary restraining order enjoining the City of San Diego and its agents and employees from enforcing [San Diego Municipal Code] section 54.0110." (ECF No. 7-1 at 5). Plaintiffs contend that the general application of San Diego Municipal Code section 54.0110 by City officials infringes their First Amendment right to free speech. Plaintiffs contend that San Diego Municipal Code section 54.0110 is void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment.

Defendant contends that San Diego Municipal Code section 54.0110 is a constitutional, content neutral, reasonable time, place, and manner restriction narrowly tailored to advance the substantial interests of "protecting the public's health, safety and welfare, protecting the City's properties from damage, overuse, and unsanitary conditions, and maintaining the City's public areas as right-of-ways, free of obstructions and clutter, open for the use and enjoyment of the public." (ECF No. 18 at 8).

A party presents a facial challenge to the constitutionality of an ordinance when the party challenges the general application of the ordinance. See Doe v. Reed, __ U.S.__, 130 S.Ct. 2811, 2817 (2010) ("[A] claim is 'facial' in that it is not limited to plaintiffs' particular case, but challenges application of the law more broadly to all [similar plaintiffs]"); Jerry Beeman & Pharm. Serv., Inc. v. Anthem Prescription Mgmt, LLC, 652 F.3d 1085, 1097 (9th Cir. 2011) (a party alleges a facial challenge when the party alleges that the statute is unconstitutional "against whomever it is enforced" rather than "only as applied in the context of plaintiffs' suit."). "A successful challenge to the facial constitutionality of a law invalidates the law itself." Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). Facial challenges to statutes may be made on First Amendment grounds "where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct." Broadrick v. Oklahoma, 413 U.S. 601, 612-13 (1973) (citations omitted); see also Roulette v. City of Seattle, 97 F.3d 300, 303 (9th Cir. 1996).

The First Amendment precludes the enactment of laws "abridging the freedom of speech." U.S. Const. amend. I. The First Amendment protects literal speech as well as some expressive or communicative conduct. Spence v. Wash., 418 U.S. 405, 409 (1974). Expressive or communicative conduct is entitled to First Amendment protection where it is "sufficiently imbued with elements of communication." Id.; see also Clark v. Cmty for Creative Non-Violence, 468 U.S. 288, 294 (1984) (finding that camping on park lands, including "the use of park lands for living accommodations, such as sleeping, storing personal belongings, making fires, digging, or cooking ... may be expressive and part of the message delivered by the demonstration [regarding homelessness].") (citations omitted) (emphasis added). For the ...


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