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Eugene Davidovich, An Individual; Davina Lynch, An Individual; and John Kenney, An Individual v. City of San Diego

February 10, 2012

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. 29).

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 asserting a facial challenge to San Diego Municipal Code section 54.0110. (ECF No. 7). On November 21, 2011, the Court heard oral argument on the Ex Parte Application for Temporary Restraining Order. On December 1, 2011, the Court denied the Ex Parte Application for Temporary Restraining Order. (ECF No. 25). The Court stated:

In this case, the prohibition against unauthorized encroachments in San Diego Municipal Code section 54.0110 is content neutral because it does not single out any type of speech or provide differential treatment based on the idea expressed. San Diego Municipal Code section 54.0110 serves significant government interests in protecting the public's health, safety, and welfare; maintaining public property; and ensuring that the public space is free of obstructions and is available for the use and enjoyment of members of the public. San Diego Municipal Code section 54.0110 is narrowly tailored because it is limited to proscribing intrusion upon the maintenance, use, and enjoyment of public space. San Diego Municipal Code section 54.0110 allows ample alternative channels for communication and does not preclude Plaintiffs from communicating their message.

Based on the record, the Court concludes that San Diego Municipal Code section 54.0110 is a content neutral, reasonable time, place, and manner restriction which is narrowly tailored to serve a significant governmental interest and leaves open ample alternative channels for communication. ...

San Diego Municipal Code section 54.0110 has the plainly legitimate sweep of protecting the public's health, safety and welfare; maintaining public property; and ensuring that the public space is free of obstructions and available for the use and enjoyment of members of the public. The conduct targeted by the ordinance relates to the maintenance, use, and enjoyment of public space and is not constitutionally protected. To the extent that the ordinance may restrict expressive conduct, Plaintiffs have failed to show that there are a substantial number of instances in which the [ordinance] cannot be applied constitutionally in relation to its plainly legitimate sweep. ...

The need for definiteness is present in this case because the Court has presumed that the ordinance implicates constitutionally protected conduct. When considering the ordinary meaning of the terms encroach, erect, place, remain, construct, establish, plant, and maintain, as well as their use in conjunction with each other, the ordinance plainly prohibits individuals from using vegetation or objects to interfere with the maintenance, use, and enjoyment of public property. The ordinance makes it unlawful for a person to "erect, place, allow to remain, construct, establish, plant, or maintain any vegetation or object" upon public property in order to advance substantial government interests in protecting the public's health, safety and welfare; maintaining public property; and ensuring that the public space is free of obstructions and is available for the use and enjoyment of members of the public. S.D. Mun. Code § 54.0110. The ordinance proscribes easily identifiable conduct which directly advances the public interest. The Court concludes that the ordinance provides adequate guidelines to govern law enforcement and to avoid the potential for arbitrarily suppressing First Amendment liberties.

Id. at 5-6, 8, 10-11 (quotations and citations omitted).

On January 18, 2012, Plaintiffs filed an Ex Parte Application for Temporary Restraining Order asserting an as-applied challenge to San Diego Municipal Code section 54.0110. (ECF No. 29). Plaintiffs seek a temporary restraining order enjoining the City of San Diego "from engaging in, committing, or performing, directly or indirectly, any and all of the following acts: arresting or threatening the arrest of [Plaintiffs] or any Occupy San Diego demonstrator under San Diego Municipal Code section 54.0110 for temporary placement of personal belongings, signs, folding tables, chairs, or other personal possessions not constituting permanent encroachment on city property." (Proposed Order at 2).

On January 25, 2012, Defendant filed an Opposition. (ECF No. 34). On January 30, 2012, Plaintiff filed a Reply. (ECF No. 35). On February 9, 2012, the Court heard oral argument.

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 ...


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