1. law, govt and politics

CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record for the Appellants, Pro-Life Mississippi,
Dana Chisholm, Ester Mann, John Brekeen, Laura Duran, Doug Lane, Ronald
Nederhoed, Berkeley Ostrander, and Calvin Zastrow, certifies that the following
listed persons as described in the fourth sentence of Fifth Circuit Rule 28.2.1 have
an interest in the outcome of this case. These representations are made in order
that the judges of this court may evaluate possible disqualification or recusal:
1.
Pro-Life Mississippi, a non-profit corporation duly organized
and existing under the laws of the State of Mississippi, and a
named plaintiff in this matter.
2.
Dana Chisholm, a resident of Mississippi, President of Pro-Life
Mississippi, and a named plaintiff in this matter.
3.
Ester Mann, a resident of Mississippi, Secretary of the Board of
Pro-Life Mississippi, and a named plaintiff in this matter.
4.
John Brekeen, a resident of Mississippi and a named plaintiff in
this matter.
5.
Laura Duran, a resident of Mississippi and a named plaintiff in
this matter.
6.
Doug Lane, a resident of Mississippi and a named plaintiff in
this matter.
7.
Ronald Nederhoed, a resident of Mississippi and a named
plaintiff in this matter.
8.
Berkeley Ostrander, a resident of Mississippi and a named
plaintiff in this matter.
9.
Calvin Zastrow, a resident of Michigan and a named plaintiff in
this matter.
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10.
Catherine Short, counsel for Plaintiffs in this matter.
11.
Allison K. Aranda, counsel for Plaintiffs in this matter.
12.
Steve C. Thornton, counsel for Plaintiffs in this matter.
13.
Defendant Lindsay Horton, former Chief of Police for the City of
Jackson, Mississippi;
14.
Defendant Lee Vance, Chief of Police for the City of Jackson,
Mississippi;
15.
Defendant Jesse Robinson, an officer for the City of Jackson
Mississippi Police Department;
16.
Defendant James McGowan, an officer for the City of Jackson
Mississippi Police Department;
17.
Defendant Mary James, an officer for the City of Jackson
Mississippi Police Department;
18.
Defendant Marie Hampton, an officer for the City of Jackson
Mississippi Police Department;
19.
Defendant James Ross, an officer for the City of Jackson
Mississippi Police Department;
20.
Defendant Willis Thomas, an officer for the City of Jackson
Mississippi Police Department;
21.
Claire Barker, counsel for Defendants in this matter.
22.
Lara E. Gill, former counsel for Defendants in this matter.
23.
LaShundra B. Jackson-Winters, counsel for Defendants in this
matter.
This the 28th day of April, 2015.
/s/ Catherine W. Short_________
Catherine W. Short (CA Bar No. 117442)
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STATEMENT REGARDING ORAL ARGUMENT
Plaintiffs-Appellants request oral argument in this matter to assist the
court in its decisional process, and particularly to avoid confusion as to
factual issues. This case concerns the conduct of defendant police officers
directed against several plaintiffs, individually and collectively, over the
course of several years. Plaintiffs-Appellants believe that oral argument
will help avert any confusion or misunderstandings about the underlying
facts.
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS........................................................ i
STATEMENT REGARDING ORAL ARGUMENT ............................................. iii
TABLE OF CONTENTS ........................................................................................ iv
TABLE OF AUTHORITITES ............................................................................... vii
JURISDICTIONAL STATEMENT ..........................................................................1
STATEMENT OF ISSUES PRESENTED FOR REVIEW ......................................1
STATEMENT OF THE CASE .................................................................................2
STATEMENT OF FACTS ........................................................................................3
A. The Plaintiffs’ Activity ............................................................................3
B. The Setting...............................................................................................4
C. The “Signs-Up” Rule ...............................................................................6
D. “Obstruction” by Persons and Objects ....................................................8
1. McGowan’s “Deemed Obstruction” Policy ...................................8
2. Third Party Reports of Obstructions on Sidewalk ........................11
E. Arrests and Threats of Arrest ................................................................12
1. 2011 threats of arrest for “obstruction” ........................................12
2. February 28, 2013 arrests for “obstruction” .................................13
3. March 1, 2013 arrest for “obstruction”.........................................14
4. Continuing threats of arrest for “obstruction” throughout 2013 ..15
5. December 4, 2013 arrest for “obstruction”...................................16
6. Continuing threats of arrest for throughout 2014 .........................17
F. Police Inaction Toward Signs and Other Objects on the Sidewalks .....18
G. PLM Plaintiffs’ Efforts to Work with City Officials.............................19
iv
SUMMARY OF ARGUMENT ...............................................................................19
ARGUMENT ..........................................................................................................21
I. STANDARD OF REVIEW ............................................................................21
II. PLAINTIFFS DEMONSTRATED A LIKELIHOOD OF SUCCESS ON
THE MERITS OF THEIR FIRST AMENDMENT CLAIM. .......................22
A. If McGowan is not acting according to a municipal policy in enforcing
the “signs up” rule, he is violating the Plaintiffs’ First Amendment
rights. .....................................................................................................23
B. The “signs up” policy is an unconstitutional restriction on expressive
activity. ..................................................................................................25
C. Plaintiffs do not need to demonstrate disparate treatment to prevail on
their First Amendment claim. ................................................................28
III. PLAINTIFFS DEMONSTRATED A SUBSTANTIAL LIKELIHOOD OF
SUCCESS ON THEIR FOURTH AMENDMENT CLAIM ........................29
A. The City Defendants had no probable cause to arrest the PLM Plaintiffs
for Obstruction.......................................................................................30
B. The City Defendants had no probable cause to arrest the PLM Plaintiffs
for violation of the sign ordinance or for disturbing the peace. ............34
IV. PLAINTIFFS DEMONSTRATED A SUBSTANTIAL LIKELIHOOD OF
SUCCESS ON THE MERITS OF THEIR DUE PROCESS CLAIM ..........36
V. PLAINTIFFS SATISFIED THE OTHER ELEMENTS FOR ISSUANCE OF
A PRELIMINARY INJUNCTION ...............................................................41
A. Plaintiffs Established a Substantial Threat of Irreparable Injury. .........41
B. The Balance of Harms Sharply Tips In Plaintiffs’ Favor ......................46
C. The Public Interest Favors Granting the Injunction ..............................49
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VI. THE DISTRICT COURT IMPOSED AN UNDULY STRINGENT
BURDEN OF PROOF ON THE PLAINTIFFS............................................50
CONCLUSION .......................................................................................................52
CERTIFICATE OF SERVICE ................................................................................54
CERTIFICATE OF COMPLIANCE ......................................................................55
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TABLE OF AUTHORITITES
FEDERAL CASES
Byrne v. Roemer, 847 F.2d 1130 (5th Cir. 1988) .....................................................21
Christian Legal Soc'y v. Walker, 453 F.3d 853 (7th Cir. 2006) ..............................49
City of Chicago v. Morales, 527 U.S. 41 (1999) ...............................................38, 41
Covino v. Patrissi, 967 F.2d 73 (2nd Cir. 1992) .......................................................43
Crowder v. Sinyard, 884 F.2d 804 (5th Cir. 1989) ...................................................51
Edwards v. Coeur D’Alene, 262 F.3d 856 (9th Cir. 2001) .................................23, 24
Foti v. Menlo Park, 146 F.3d 629 (9th Cir. 1998)...................................................38
Frisby v. Schultz, 487 U.S. 474 (1988)....................................................................24
Haggerty v. Tex. S. Univ., 391 F.3d 653 (5th Cir. 2004).........................................30
Houston v. Hill, 482 U.S. 451 (1987) ......................................................................38
Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) ...................................................36
Johnson v. Minneapolis Park & Rec. Bd, 729 F.3d 1094 (8th Cir. 2013) ................27
McCullen v. Coakley, 134 S.Ct. 2518 (2014) ..............................................19, 28, 29
McLaurin v. Burnley, 279 F.Supp. 220, 225 (N.D. Miss. 1967) .............................35
National People’s Action v. Village of Wilmette, 914 F.2d 1008 (7th Cir. 1990) ....42
Opulent Life Church v. City of Holly Springs Miss., 697 F.3d 279 (5th Cir. 2012) .....
............................................................................................................21, 43, 46, 49
Peterson v. City of Fort Worth, 588 F.3d 838 (5th Cir. 2009) .................................25
Piazza v. Mayne, 217 F.3d 239 (5th Cir. 2000).......................................................30
Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015) ........................................26, 27
Sunbeam Products, Inc. v. West Bend Co., 123 F.3d 246 (5th Cir. 1997) ...............51
Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535 (5th Cir. 2013) ........41
United States v. Escalante, 239 F.3d 678 (5th Cir. 2001) .......................................38
Women’s Medical Center v. Bell, 248 F.3d 411 (5th Cir. 2011) ..............................21
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Zepeda v. U.S. Immig. & Nat. Svcs., 753 F.2d 719 (9th Cir. 1983) .............42, 43, 44
FEDERAL STATUTES
28 U.S.C. §1292 ........................................................................................................1
28 U.S.C. §1331 ........................................................................................................1
28 U.S.C. §1343 ........................................................................................................1
28 U.S.C. §2201 ........................................................................................................1
42 U.S.C. §1983 ............................................................................................1, 22, 51
FEDERAL RULES
Fed. R. App. P. 32 ...................................................................................................55
Fed. R. App. P. 4 .......................................................................................................1
Fifth Circuit Rule 28.2.1 ............................................................................................ i
STATE STATUTES
Mississippi Code § 97-35-5 .....................................................................................45
Mississippi Code § 97-35-15 ...................................................................................35
Mississippi Code § 97-35-25 ........................................................................... passim
OTHER AUTHORITIES
11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 2948.1 (2d Ed. 1995).................................................................43
Jackson Municipal Code Section 102-31 ..........................................................34, 36
Pattern Jury Instructions, Civil Cases, Fifth Circuit (2014) Instruction 10.1 ..........51
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JURISDICTIONAL STATEMENT
This is an appeal from a preliminary injunction. The district court has federal
question jurisdiction and supplemental jurisdiction over this matter pursuant to 28
U.S.C. §§1331, 1343, 2201, and 2202 because the complaint asserts claims for
relief under 42 U.S.C. §1983. R.E. 40-50. ROA.19-50.
This Court has appellate jurisdiction under 28 U.S.C. §1292(a)(1), as
Plaintiffs are appealing the district court's order denying Plaintiffs’ motion for
temporary restraining order and preliminary injunction entered on October 27,
2014. R.E. 21-39, ROA.1154-1171.
Plaintiffs timely filed their notice of appeal in accordance with Fed. R. App.
P. 4(a)(1)(A) within 30 days of entry of the District Court’s order denying
Plaintiffs’ motion for preliminary injunction on October 27, 2014. R.E. 19-20,
ROA.388-389.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1.
Whether the District Court erred in finding Plaintiffs had not
demonstrated a likelihood of success on the merits of their First Amendment
claims because they did not show the police treated other speakers differently?
2.
Whether the District Court erred in finding that Plaintiffs had not
demonstrated a likelihood of success on the merits of their Fourth Amendment and
due process claims?
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3.
Whether the District Court erred in not granting a preliminary
injunction against the individual officers responsible for violating Plaintiffs’
constitutional rights?
4.
Whether the District Court erred in holding that Plaintiffs had an
adequate remedy at law for their constitutional violations and that this remedy
obviated the need for injunctive relief?
5.
Whether the District Court imposed on Plaintiffs an erroneously
stringent burden of proof for obtaining a preliminary injunction?
STATEMENT OF THE CASE
Six years ago, the United States District Court for the Southern District of
Mississippi entered a consent decree against the City of Jackson, its Chief of
Police, and various police officers because of the Jackson Police Department’s
pervasive policy of violating the free speech rights of Plaintiff Pro-Life Mississippi
and individual pro-life advocates. R.E. 51-55, ROA.126-130.
After the expiration of the court’s jurisdiction over the decree, Jackson
police officers resumed their practice of infringing on the rights of Plaintiff ProLife Mississippi and its members. Because the consent decree forced the city to
amend the city ordinances regarding noise and signage previously used to harass
the pro-life advocates, police began claiming Pro-Life Mississippi members and
others were obstructing the sidewalk or disturbing the peace. Officers started
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enforcing their own ad hoc “time, place, and manner” restrictions by means of
arrests and threats of arrest.
On July 23, 2014, Plaintiffs filed this action. ROA.19. On August 9, 2014,
Plaintiffs filed a motion for preliminary temporary restraining order and
preliminary injunction. ROA.86. The district court, Hon. Carlton Reeves presiding,
scheduled a hearing to begin October 6, 2014. The court heard testimony on
October 6, 7, 16, 17, and 27. On October 27, at the conclusion of the hearing, the
court denied Plaintiffs’ motion, relying on several erroneous legal arguments
propounded by the City. R.E. 21-39. ROA.1154-1171.
Plaintiffs timely filed their notice of appeal on November 25, 2014. R.E. 1920, ROA.388-389.
STATEMENT OF FACTS
A.
The Plaintiffs’ Activity
Plaintiffs Pro-Life Mississippi and its individual members, including
Plaintiffs Ester Mann, Ron Nederhoed, Cal Zastrow, Laura Duran, Johnny
Brekeen, Doug Lane, Berkeley Ostrander, and Dana Chisolm (“PLM Plaintiffs”)
engage in free speech activity on the public sidewalks and right-of-ways near
Jackson Women's Health Organization (“JWHO”) located at 2903 North State
Street, Jackson, Mississippi. As part of this peaceful pro-life advocacy, PLM
Plaintiffs hold signs and/or offer literature and counseling to persons approaching
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the clinic, including offering alternatives to abortion. ROA.757:3-5 (Chisolm) (“I
try to talk to the girls. I try to give them a true choice”); ROA.412:10-25 (Mann)
(“we try to go out to the places where the babies are dying and the women are
suffering and offer them alternatives and help to let them know that there are
places where they can get help . . . We speak, we hand out literature, we pray with
the people, we read the Bible . . .”). The PLM Plaintiffs locate themselves so as to
convey their message to women entering the facility and to passersby, but they do
not obstruct or interfere with the free passage of pedestrians or patients on the
public roads, right-of-ways, or sidewalks. ROA.471:6-9, 498:6-18 (Mann);
ROA.557:11- 558:1 (Ostrander); ROA.113:3 (Zastrow); ROA.110:3 (Nederhoed).
Occasionally, Pro-Life Mississippi sponsors larger events in this area for which it
obtains permits from the City. ROA.464:17-22, 465:24-466:4 (Mann).
B.
The Setting
JWHO is located on the northwest corner of State Street and Fondren Place
in Jackson. The facility has a private parking lot to the west of the building, the
entrance to which is on Fondren Place. Fondren Place is a short street with only
eight or ten homes on it beyond JWHO on the northwest corner and a yellow house
converted to office space on the southwest corner. R.E. 57, ROA.338 (P31); R.E.
58, ROA.340 (P33); ROA.514:19-515:8 (Mann); ROA.1053:14-22 (McGowan).
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There is very little pedestrian or vehicular traffic on Fondren Place other
than clients driving into and leaving the JWHO’s parking lot. ROA.421:15-18
(Mann) (“Although Fondren – it’s not traveled very much by anybody except the
abortion clinic patients. The street, there is almost no traffic down there except
patients”); ROA.515:9–23 (Mann). JWHO clients parking in the clinic’s lot walk
into the clinic along a path separated from the public sidewalk by a tall fence that
is covered with tarps and signs posted by clinic personnel. Most clients enter the
clinic by this route. ROA.759:11-19 (Chisolm); ROA.489:1-5 (Mann).
To the west of the driveway entrance is an unpaved area of public right-ofway. A paved public sidewalk, six feet wide, runs from the west side of the
driveway entrance to a gate in the clinic fence opening on a walkway into the
clinic. ROA.1044:15-1045:7 (McGowan). The paved public sidewalk ends there in
grass and landscaping. Because patients can park in the clinic’s lot and enter the
clinic directly from the lot, no patients walk on this sidewalk to the pedestrian gate.
ROA.782:19-24, 784:13 – 22 (Chisolm) (“I can say that a long time ago I saw
people go through that gate. There isn’t anybody going through that gate now and
hasn’t been for a long time”).
Also, very few other pedestrians use this sidewalk; it used almost
exclusively by clinic escorts and the PLM Plaintiffs and others associated with
them. This one section of sidewalk is the only sidewalk on Fondren Place west of
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State Street, on either side of the street. To use the sidewalk, what few pedestrians
there are would have to move out of their line of travel and step up onto the
sidewalk where it begins and then step off again where it ends and once again walk
in the street. ROA.804:2-12 (Chisolm); ROA.464:4-12 (Mann); R.E. 57, ROA.338
(P31); R.E. 58, ROA.340 (P33); R.E. 59, ROA.341 (P34).
Another paved walkway leads directly from Fondren Place to a gate in the
fence near the southeast corner of the clinic property. There is no entrance to the
clinic building from State Street. Adjacent to State Street and separated from the
clinic building by several feet of grass and landscaping is a public sidewalk that is,
according to the City Defendants, six feet nine inches wide (ROA.881:12-20
(McGowan)) and according to the PLM Plaintiffs, seven and a half feet wide.
ROA.1176:1-10 (Lane). Across State Street from JWHO are restaurants.
ROA.952:3-9, 953:9-23 (Glenn).
C.
The “Signs-Up” Rule
Pieter Teeuwissen was the city attorney of Jackson, Mississippi, from July
2009 through September 2013. ROA.1124:2-5. Mr. Teeuwissen testified that it was
his understanding that resting a sign on the sidewalk is a violation of both a state
statute and city ordinance with respect to obstruction of sidewalks. ROA.1133:1-7
6
(Teeuwissen).1 It is his understanding that “protest signs were to be handheld, off
the ground.” ROA.1129:16-1130:2 (Teeuwissen).
Defendant James McGowan is a police officer with the City of Jackson
Police Department. He is precinct commander of Precinct 4, in which JWHO is
located. ROA.865:22-866:13 (McGowan). Other police officers in the precinct act
under his supervision. ROA.926:12-21 (McGowan).
Commander McGowan, personally and through the police officers under
him, enforces a policy by means of threats, arrests, and citations whereby resting a
handheld sign on the public sidewalk adjacent to JWHO is automatically
obstructing the public sidewalk in violation of city and state law. McGowan and
the officers he supervises have enforced the “signs up” policy against the PLM
Plaintiffs on many occasions over the past few years. ROA.664:11-665:4
(Zastrow) (“They would either roll their window down and ask that nicely or they
would scream it or they would turn their PA system on in their patrol cruiser and
give an order, Hey, miss, hey sir, you can’t be having that sign touch the ground.
That was repeatedly. I heard that often. Q: Did they say what would happen if you
1
“Q: If a person allows their sign to rest on the sidewalk, would they be violating the
law?
A: I think they would be violating the state statute with respect to obstruction of
sidewalks, yes.
Q. Would they be violating a city ordinance?
A. I think there is a parallel city ordinance with respect to obstruction of sidewalks. If
there is, I would say yes.”
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let it touch the ground anyway? A: They would say we’re going to take that sign,
take you to jail”); ROA.720:12-25 (Zastrow) (“The police would say usually, Your
sign touches the ground, you’re going to jail. Statements like that”); ROA.758:22759:8 (Chisolm); ROA.446:14-24 (Mann) (“we had been advised earlier that the
signs couldn’t touch the ground when the arrests occurred. So we were trying to
keep them from touching the ground so we had them on our feet); ROA.891:7-10,
892:7-10 (McGowan) (“Did you have to ask anyone to take their big signs off the
sidewalk? A: There was a couple people had to pick their signs off the ground, but
they were never asked to remove the signs”); ROA.921:3-7 (McGowan) (“we did
ask Ms. Mann numerous times to pick the sign up and she refused to”).
D.
“Obstruction” by Persons and Objects
1. McGowan’s “Deemed Obstruction” Policy
McGowan and his officers further enforce another policy whereby any
object, including a chair, a stepladder, or a person’s body, that is stationary on the
public sidewalk adjacent to JWHO is also deemed an obstruction of the sidewalk
and a violation of state and city laws. ROA.940:16-21 (McGowan) (“What I told
her was anything, including her chair, sitting on the sidewalk is an obstruction of
the public sidewalk”); ROA.943:7-12 (McGowan) (“She was obstructing the
public sidewalk where she was sitting. Everything that she had attached to her was
also obstructing the traffic. Her body, the chair, the signs, everything”);
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ROA.1066:22-24 (McGowan) (“Q. So by your definition that if someone has to
navigate around a person on the sidewalk, that’s an obstruction. A. Any obstruction
is an obstruction”). According to Commander McGowan, unlawful obstruction of
the sidewalk occurs whether or not the presence of the “obstruction” is permanent
or transitory, and whether or not a pedestrian is actually attempting to pass or even
in the vicinity of the person or object on the sidewalk. McGowan also sees
threatened obstructions where different objects are on the sidewalk at the same
time that might come into conjunction with each other, although there is no
evidence that they ever have. ROA.882:4-9 (McGowan) (“I don’t know that you
could be standing over there at that pole with that sign not have it completely 100
percent blocked”) (referencing R.E. 69, ROA.366 (D19)).
Commander McGowan cannot identify what state or city law prohibits
obstruction of the public sidewalk and would not identify what code section of
state or city law he cited particular plaintiffs under. ROA.929:16 – 931:7,
ROA.933:22-936:23 (McGowan).
Commander McGowan and his officers have frequently enforced the rule
that any stationary object on the sidewalk, including a person, is an obstruction.
ROA.539:1-18 (Ostrander) (“[W]e have been told we can stand there [in front of
gate] but we had to keep moving. We have been told we can stand there but not
when the gate is – only when the gate is closed. We have been told we cannot
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stand there at various times”); ROA.543:24-544:19 (Ostrander); ROA.554:10–17
(Ostrander) (“[A]t the time you were told to move, were you blocking anybody
from entering that gate? A. No. No one was trying to enter”); ROA.782:5-7
(Chisolm) (“I cannot stand in the driveway. I cannot stand in that square that’s in
front of the gate that doesn’t open except for the mail or in the gutter”).
Commander McGowan provided various examples of his understanding of
obstruction of the sidewalk. One example was two photos, taken in opposite
directions, of Plaintiff Johnny Brekeen standing on the sidewalk on State Street
holding two signs, which Commander McGowan described as “an accurate
depiction of the obstruction of the public sidewalk.” R.E. 70, ROA.373 (D1); R.E.
69, ROA.366 (D19); ROA.347 (P51-video) ROA.875:14-876:5, 879:14-880:2
(McGowan). Mr. Brekeen’s signs are taking up approximately half of the sidewalk
that is almost seven feet wide. No pedestrians are approaching in either direction.2
McGowan also described an instance of alleged obstruction on a day in
October 2014 when PLM had a permit to hold a large demonstration on the
sidewalk adjacent to JWHO. McGowan described a person in a wheelchair “having
2
McGowan testified that the sidewalks along State Street and Fondren Place are “very
busy” and the “one of the busiest streets in his precinct.” ROA.868:2-14. However, none
of the video or photographic evidence introduced by either plaintiffs or defendants
supports this characterization of the sidewalks adjacent to JWHO as busy. Brekeen
testified that, on the day the photos were taken about which McGowan testified, three
people passed him in the five hours he stood on the sidewalk. ROA.593:12-19 (Brekeen).
A video taken on the same day provides a momentary view of over one hundred feet
along the sidewalk, showing not a single pedestrian. ROA.347 (P51-video).
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a pretty difficult time because of all the protesters standing in the way.”
ROA.895:11-15 (McGowan). McGowan further described the scene: “A lot of
people were standing in the way. Some people were attempting to move out of the
way but they weren’t able to. There was one of the escorts asking people to move
out of the way so they could get through there. She asked at least three times that I
remember telling them to move out of the way, move out of the way.”
ROA.898:25-900:12 (McGowan). McGowan did not take any action in response to
his perception of this obstruction of the public sidewalk. ROA.1059:16-17
(McGowan).
The video of the incident McGowan described shows a woman in a
wheelchair, with a clinic escort beside her, going down the public sidewalk from
the clinic driveway to the gated entrance. ROA.370 (D53-video). The edge of her
wheelchair can be seen to the right of the screen as she gets to the sidewalk at
00:44. By 00:52, she is already moving down the sidewalk at a steady pace, first
through a crowd of eight or so clinic personnel, many of whom are holding signs,
and then through the picketers, with an escort at her side holding a sign, without
slowing down or pausing until she reaches the gate at the end of the sidewalk.
2. Third Party Reports of Obstructions on Sidewalk
Commander McGowan testified that officers are dispatched to JWHO in
response to calls for service. ROA.870:10-18 (McGowan). These calls for service
11
frequently come from business owners in the vicinity of JWHO who are unhappy
with the content of the signs they see outside JWHO. ROA.956:4-9 (Glenn);
ROA.1051:2-16 (McGowan).
One of these owners, Nathan Glenn, has been told that it is violation of the
law for picketers to let their signs touch the sidewalk, so he calls the police when
he sees that happen. ROA.968:8 – 21:1 (Glenn). Glenn testified that the signs on
the State Street sidewalk are held parallel to the sidewalk, facing the businesses
across the street; their visibility and contents are the source of the business owner’s
objection. ROA.966:7-18; 967:11-14 (Glenn). Glenn has also placed calls for
service because they believe that picketers are not allowed to come on “our side”
of the street to hold signs. ROA.971:18–972:6 (Glenn).
E.
Arrests and Threats of Arrest
1. 2011 threats of arrest for “obstruction”
Beginning in 2011, specifically including every Thursday and Friday in June
2011, Commander McGowan and the officers he supervises threatened the PLM
Plaintiffs who were holding signs on the public sidewalk near JWHO and talking
to persons walking nearby. ROA.428:14-18 (Mann). The officers threatened to
arrest them on charges of disturbing the peace. ROA.91:5 (Mann); ROA.113:4
(Zastrow). Plaintiff Mann was arrested in 2011 when she refused to move her chair
12
from a location on the public right-of-way where another officer had told her she
could put it. ROA.430:14-433:11 (Mann).
2. February 28, 2013 arrests for “obstruction”
On February 28, 2013, Plaintiff Johnny Brekeen was arrested by defendant
McGowan, while Brekeen was standing holding a sign on the public sidewalk on
State Street. ROA.437:2-23 (Mann). Pedestrians, had there been any, had room to
pass. ROA.438:3-18 (Mann); R.E. 70, ROA.373 (D1); R.E. 69, ROA.366 (D19);
ROA.347 (P51-video).
On that day, McGowan also arrested Plaintiff Zastrow, who was sitting on a
stepladder placed next to the clinic fence, singing, praying, and reading from the
Bible. ROA.440:9-18 (Mann). Neither Zastrow nor his stepladder was obstructing
the sidewalk. ROA.439:13-440:4 (Mann). There was plenty of room on the
sidewalk for others to pass by, and in fact some people did pass by Zastrow’s
ladder. ROA.651:2-4 (Zastrow); R.E. 67, ROA.358 (D50).
Lastly, on the same day, McGowan, on the order of Defendant Robinson,
arrested Mann who was standing on the sidewalk next to her chair, holding a sign.
ROA.441:2-21, 442:9-15 (Mann). Mann was not obstructing the sidewalk. R.E. 61,
ROA.343 (P43). McGowan arrested her for obstructing the sidewalk because she
refused to hold her sign off the ground and refused to move her chair to the
unpaved area further west on the public right-of-way. ROA.920:16-921:7, 928:18-
13
929:25, 934:1-6 (McGowan). Officers took possession of Mann’s and Brekeen’s
signs. ROA.1210:22-1211:9 (Villavaso); ROA.920:21-24 (McGowan);
ROA.500:4-19 (Mann).
After having to appear in court for an arraignment and three different trial
settings, the City of Jackson Municipal Court dismissed the obstruction charges
(violation of Mississippi Code § 97-35-253) against Mann and Brekeen on
November 25, 2013. ROA.102:5 (Brekeen); ROA.92:7-8 (Mann).
3. March 1, 2013 arrest for “obstruction”
On March 1, 2013, Plaintiff Calvin Zastrow was arrested by Defendants
McGowan, Ross, and Thomas, when he momentarily let his sign touch the public
sidewalk. ROA.447:1-7 (Mann); ROA.113:5 (Zastrow); ROA.347 (P51-video);
ROA.657:24-658:15 (Zastrow). Zastrow was charged with obstructing a public
sidewalk. McGowan, Ross, and Thomas also seized and took possession of
Zastrow’s pro-life sign and have not returned it. Zastrow was not obstructing the
sidewalk. ROA.447:10-14 (Mann); ROA.113:5 (Zastrow); ROA.347 (P51-video);
ROA.658:23-659:8, 659:22-660:2 (Zastrow). The City of Jackson Municipal Court
dismissed the charge of violation of Mississippi Code § 97-35-25 on August 19,
2013. ROA.113:5 (Zastrow).
3
Mississippi Code § 97-35-25 prohibits “wilfully obstruct[ing] the free, convenient and
normal use of any public sidewalk, street, highway, alley, road, or other passageway by
impeding, hindering, stifling, retarding or restraining traffic or passage thereon.”
14
4. Continuing threats of arrest for “obstruction” throughout 2013
In or about March or April 2013, Defendant McGowan told Plaintiffs that
they were not permitted to sit in chairs (while holding their pro-life signs and
literature) on the paved sidewalk adjacent to JWHO on Fondren Place to the east of
the entrance to the clinic parking lot. ROA.448:7-449:9 (Mann). McGowan
insisted and continues to insist that Plaintiffs are only allowed to sit on unpaved
area west of the driveway entrance, away from the clients. Clinic personnel place
chairs immediately adjacent to the driveway at this location, so the PLM Plaintiffs
are forced to sit behind these chairs, even further from the driveway and obstructed
from the view of the clients. ROA.449:10-450:24 (Mann); ROA.762:3–18
(Chisolm); R.E. 56, ROA.336 (P25); ROA.339 (P32); R.E. 62, ROA.344 (P29);
R.E. 63, ROA.349 (P24).
On one occasion, Plaintiff Mann’s sign fell off her chair while the chair was
placed in this area and its edge was touching the curb. McGowan ordered another
officer to arrest Mann, but no arrest was made. ROA.451:8-452:5 (Mann). On
April 3, 2013, McGowan threatened to arrest Mann again for obstructing the
sidewalk while she was sitting in and standing near her chair placed on the grassy
right of way east of the paved sidewalk. ROA.457:7-23 (Mann).
On October 2, 2013, defendant JPD Officer Donaldson threatened to arrest
Plaintiffs Ester Mann and Ronald Nederhoed while they were sitting in chairs,
15
holding their signs and literature, on the public sidewalk east of the entrance to the
clinic parking lot. Officer Donaldson asked them to move the west side of the
driveway so he wouldn’t have to arrest them. They were not obstructing the
sidewalk, driveway entrance, or public right-of-way. ROA.459:6-15, 460:1-4
(Mann). Because they did not want to be arrested, they moved their chairs to the
west side of the driveway, behind where the clinic personnel had their chairs.
ROA.460:8-13 (Mann).
5. December 4, 2013 arrest for “obstruction”
On December 4, 2013, Plaintiffs Ester Mann and Ronald Nederhoed, along
with another woman, were holding signs, letting them rest beside them as they sat
in small lawn chairs on the public sidewalk near JWHO. Defendant JPD Officer
Marie Hampton approached and ordered that Mann be arrested. Defendant JPD
Officer Mary James arrested Mann and Nederhoed for obstructing a public
sidewalk. Neither Mann nor Nederhoed were obstructing the sidewalk. Nederhoed
and Mann were sitting side-by-side so as to leave plenty room on the sidewalk for
other persons, if there were any, to pass by on the sidewalk. ROA.460:14-461:18
(Mann); ROA.94:13 (Mann); R.E. 60, ROA.342 (P41). On February 13, 2014,
when Mann and Nederhoed appeared for arraignment as ordered by the issued
citation, the City of Jackson Municipal Court cancelled the arraignments because
16
the City could not find any record of the charges. ROA.94:13 (Mann); ROA.110:4
(Nederhoed).
6. Continuing threats of arrest for throughout 2014
On July 1, 2014, Ester Mann was sitting in a chair on the public right-of-way
to the west of the driveway entrance to JWHO, in order to avoid being arrested. At
the same time, Ron Nederhoed was standing near Mann in the gutter next to the
curb of the public right-of-way to the west of the driveway entrance to JWHO. A
young woman and her 19-month old son had stopped to speak with Nederhoed as
they passed by. Defendant James drove by and told Nederhoed that he could not
stand in the gutter. Defendant James threatened to arrest Nederhoed, claiming,
“This property belongs to the City and you cannot be on it.” Mann told James that
the street and sidewalk were public property and that they had a right to exercise
their free speech rights. James told Mann that she did not like her tone and her
attitude and threatened to give her “a free ride downtown.” Neither Nederhoed nor
Mann was obstructing the sidewalk, driveway entrance, public right-of-way, or
street. In fact, Nederhoed was standing next to a trashcan in the gutter and took up
less space than the trashcan. R.E. 57, ROA.338 (P31). Because Mann feared that
James would arrest her, she stopped speaking. Nederhoed also feared he would be
arrested and moved onto the grassy area near Mann. James then drove away.
ROA.94:14; ROA.461:19-464:3 (Mann); R.E. 57, ROA.338 (P31).
17
On September 24, 2014, PLM had a permit to use sound amplification
during an event being held on the paved sidewalk adjacent to JWHO to the east of
the driveway. When the PLM office manager set the small sound machine on the
sidewalk, a JPD officer told her that PLM was obstructing the sidewalk and
threatened to arrest her if she didn’t move the sound machine over to the dirt area
to the west of the driveway. ROA.465:24-468:6 (Mann).
F.
Police Inaction Toward Signs and Other Objects on the Sidewalks
At the same time the City Defendants were enforcing a rule against any
“obstructions” on the sidewalk against the PLM Plaintiffs, other speakers have
placed sandwich-board style signs on the adjoining sidewalks or place displays in
the public right of way along State Street (in the vicinity of JWHO). R.E. 64,
ROA.351 (P1); R.E. 65, ROA.352 (P2); R.E. 66, ROA.353 (P3). Although Mann,
Zastrow, and Chisholm pointed out these signs and other objects to the police, they
have never seen the police take any action to have these items removed.
ROA.469:24-470:19 (Mann); ROA.764:18-765:20 (Chisholm); ROA.675:6-21
(Zastrow). Commander McGowan acknowledged seeing similar objects on the
sidewalk but concluded, “None of that stuff obstructs the sidewalk.” ROA.885:1522 (McGowan).
Nathan Glenn, the restaurant owner who calls in complaints about the
picketers’ signs touching the ground, has seen and continues to see signs, art
18
works, mannequins, and other objects on the public sidewalk outside his own
business and in the vicinity of JWHO. ROA.972:7-978:13 (Glenn).
Also, the police permit pro-choice supporters of JWHO to stand and remain
on the public sidewalk immediately in front of the driveway entrance to the
abortion facility. R.E. 68, ROA.360 (D9) (six or more escorts standing on
sidewalk across driveway entrance); ROA.370 (D53 – video) (six or more clinic
supporters standing on sidewalk across driveway entrance).
G.
PLM Plaintiffs’ Efforts to Work with City Officials
Plaintiffs, through their counsel, tried for almost a year before filing this
action to get city officials to address this pattern of harassment, threats of arrest,
and false arrest by JPD officers. City officials disregarded all such efforts and
instead strung Plaintiffs’ counsel along with vague assurances of a meeting at some
time in the future. ROA.119-122 (Thornton); ROA.116-118 (Aranda).
SUMMARY OF ARGUMENT
In denying the PLM Plaintiffs’ request for preliminary injunction, the district
court made several legal errors. First, it invoked a mistaken interpretation of the
Supreme Court’s decision in McCullen v. Coakley, 134 S.Ct. 2518 (2014) to hold
that the PLM Plaintiffs could not prevail on a claim of deprivation of First
Amendment rights unless they showed that the police had acted in a discriminatory
manner. The same error seemed to underlie the district court’s finding that
19
Plaintiffs were not likely to prevail on their claims under the Fourth Amendment
and the Due Process Clause. The district court also found the Plaintiffs had not
established the existence of an official city policy responsible for the police
officers’ unconstitutional actions, but then disregarded the PLM Plaintiffs’ request
for injunctive relief against individual police officers. The court held that PLM
Plaintiffs were not entitled to a preliminary injunction against the constitutional
violations proven because they had an adequate remedy at law, i.e., suits for
damages. Finally, the court employed a standard for obtaining preliminary
injunctive relief that was so extraordinarily high as to be well-nigh unattainable.
This Court should reverse the district court’s denial of the preliminary
injunction and remand with instructions to enter a preliminary injunction
preventing further infringements on Plaintiffs’ constitutional rights. Specifically,
the City Defendants should be enjoined from enforcing any ordinance or statute
prohibiting obstruction of the street or sidewalk in the absence of evidence that an
individual had deliberately hindered an identifiable vehicle or person from normal
use of the street or sidewalk.4
4
Although these issues arise on the public sidewalks and right-of-ways adjacent to an
abortion facility, the case does not turn on, or even implicate, the right or ability of
patients to enter or leave the facility. The abortion facility is not a party. No one from the
abortion facility offered any evidence or testimony. No one has claimed that that the
Plaintiffs are preventing or attempting to prevent patients from gaining access to the
facility. Instead, the dispute is between Plaintiffs, who wish to exercise their free speech
20
ARGUMENT
I.
STANDARD OF REVIEW
A district court’s grant or denial of a preliminary injunction is reviewed for
abuse of discretion. Each of the elements required to support a preliminary
injunction presents a mixed question of fact and law. Findings of fact are reviewed
for clear error, while legal conclusions are subject to de novo review. A decision
grounded in erroneous legal principles is reviewed de novo. Women’s Medical
Center v. Bell, 248 F.3d 411, 418-19 (5th Cir. 2011). See also, Byrne v. Roemer,
847 F.2d 1130, 1133 (5th Cir. 1988) (“conclusions of law and the ultimate
application of the law to the facts . . . are freely reviewable”).
The prerequisites for a preliminary injunction are (1) a substantial likelihood
of success on the merits; (2) a substantial threat of irreparable harm if the
injunction is not granted; (3) that the threatened injury outweighs any harm that the
injunction might cause to the defendant; and (4) that the injunction will not
disserve the public interest. Opulent Life Church v. City of Holly Springs, Miss.,
697 F.3d 279, 288 (5th Cir. 2012).
rights in a public forum, and Jackson police officers, who are determined to make it
difficult for them to do so.
21
II.
PLAINTIFFS DEMONSTRATED A LIKELIHOOD OF SUCCESS ON
THE MERITS OF THEIR FIRST AMENDMENT CLAIM.
The PLM Plaintiffs presented undisputed evidence that on numerous
occasions over the past three years, Commander McGowan and other Jackson
police officers have arrested or threatened to arrest them if they did not hold their
signs above the ground. Moreover, the evidence showed that this practice, if not
enjoined, will continue into the future.
In denying the PLM Plaintiffs’ motion for preliminary injunction, the district
court stated, “[T]his matter was brought pursuant to 42 U.S.C. 1983. So, therefore,
there must be some violation of a policy of the City of Jackson. The violation of
the policy must be the moving force behind the unconstitutional actions that have
been alleged by the plaintiffs.” R.E. 24:24 – 25:4, ROA.1157:24–1158:4 (Ruling).
The court misstated the standard: to obtain an injunction against the city, the
plaintiffs must show an unconstitutional municipal policy, and that the policy, not
the violation of the policy, is responsible for the unconstitutional actions.
The Court went on to hold that the plaintiffs had failed to show the existence
of either a municipal policy or a custom or practice tantamount to a municipal
policy. R.E. 25:7-23, ROA.1158:7–23 (Ruling). Here the court erred in not
finishing the thought: to obtain injunctive relief against the city, the PLM Plaintiffs
must show a policy, custom or practice. It is not necessary for Plaintiffs to
demonstrate a municipal policy to have the individual officers responsible for the
22
unconstitutional actions held liable or enjoined from such conduct in the future.
While the court later acknowledged that the plaintiffs “may be entitled to specific
relief as against the individual officers,” (R.E. 31:2-8, ROA.1164:2-8 (Ruling)), it
denied the Plaintiffs’ request for preliminary injunction against all the defendants.
A.
If McGowan is not acting according to a municipal policy in
enforcing the “signs up” rule, he is violating the Plaintiffs’ First
Amendment rights.
If McGowan and the officers he supervises are not acting pursuant to any
municipal policy, then the unconstitutionality of their actions is self-evident. They
are imposing a restriction on the manner of expressive activity (namely, that people
with signs must hold them in the air and not rest them on the ground), and they are
doing so with no basis in law. See Edwards v. Coeur D’Alene, 262 F.3d 856 (9th
Cir. 2001) (law prohibiting picket signs from having wooden supports “necessarily
regulates expressive activity protected by the First Amendment”). Even assuming
arguendo that the City itself might permissibly prohibit handheld signs touching
the ground (which, as discussed below, it may not), the fact that officers are
enforcing this restriction on speech without any legal authority to do so is itself a
First Amendment violation.5
5
As in the instant case, the police in Edwards initially created the “no handles”
restriction on their own authority and enforced it by means of an inapplicable state law.
The police arrested Edwards on a charge of resisting and obstructing a police officer
when he was asked to surrender the wooden handle of his sign and he refused to do so. A
district court enjoined the police from enforcing a policy prohibiting handles on signs
23
Suppose, for example, that some citizens of Jackson decided to picket
someone’s house. The United States Supreme Court has held that a city ordinance
prohibiting picketing “before or about” a targeted residence is a constitutional
time, place, and manner restriction on speech, because it is content-neutral,
narrowly tailored to serve a significant governmental interest, and leaves open
ample alternative channels of communication. Frisby v. Schultz, 487 U.S. 474, 488
(1988). The fact that such a restriction on speech has been held, by the highest
legal authority in the land, to be a constitutional time, place, and manner restriction
on protected speech activity does not mean that individual police officers, in the
absence of such a law, can arrest people engaged in residential picketing and
charge them with, e.g., obstruction of a public sidewalk. It is for the city or other
appropriate governmental body to enact time, place, and manner restrictions on
expressive activity; it is not up to individual officers to do so. If officers were to
arrest the residential picketers, they would be violating the picketers’ First
Amendment (and Fourth Amendment) rights. And the officers could properly be
enjoined from committing such constitutional violations in the future.
“unless said policy is duly enacted by the City's elected representatives, constitutes
reasonable time, place and manner restrictions addressing symbolic protest and sign
construction, and is applied in an even-handed fashion after being duly proclaimed as the
law.” 262 F.3d at 859. The City then enacted an ordinance prohibiting rigid structures in
signs, which ordinance was challenged by Edwards and then struck down as being not
narrowly tailored and not leaving open ample alternative channels of communication. Id.
at 859-860, 867.
24
Similarly, if McGowan and the officers he supervises are enforcing the
“signs up” rule restricting the PLM Plaintiffs’ expressive activity with no authority
from the city to do so, that is in and of itself a violation of the PLM Plaintiffs’ First
Amendment rights, and Plaintiffs have established the likelihood of success on that
claim.
B.
The “signs up” policy is an unconstitutional restriction on
expressive activity.
The testimony of Pieter Teeuwissen, city attorney at the time the “signs up”
policy began to be enforced against the PLM Plaintiffs, is clear evidence that the
officers were acting in accordance with a municipal policy. ROA.1129:16-1130:2,
1133:1-7 (Teeuwissen). Additionally, in 2009, Ms. Mann sent a letter concerning
the sign policy to JPD Chief Goodrum and received a response from Mr.
Teeuwissen telling her to direct all correspondence on these issues to him.
ROA.417:3–20:4, 476:17–477:17 (Mann).
Moreover, enforcement of the policy is “so common and well-settled as to
constitute a custom that fairly represents municipal policy.” Peterson v. City of
Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009). See Statement of Facts, Section C,
supra, pp. 6-8. In light of this evidence of a well-settled custom and the undisputed
evidence of Plaintiffs’ counsel bringing this issue before various Jackson public
officials (ROA.119-122 (Thornton), ROA.116-118 (Aranda)), the policy clearly is
25
enforced with the “acquiescence of the municipal officer or body with final
decision-making over the subject matter of the offending policy.”
However, even if the “signs up” policy is not a municipal policy, and even if
McGowan had authority to impose the policy, continued enforcement of the policy
should be enjoined because it does not meet the standard for a constitutional time,
place, or manner restriction on expressive activity in a public forum.
The “signs up” policy is unconstitutional because it is not narrowly tailored
to serve a significant governmental interest. The city has no legitimate interest in
making people hold their signs suspended a few inches above the ground or on
their toes. This rule serves neither the city’s interest in keeping sidewalks clear of
obstructions nor any other interest.
Rather than attempt to justify this policy by pointing to an interest it serves,
the City asserted, “There is no constitutional right to rest a sign on the ground.”
ROA.1276:14-16. On the contrary, there is a constitutional right to rest a sign on
the ground as well as to engage in any manner of peaceful expressive activity in a
public forum. A city may choose to regulate or restrict the time, place, or manner
of the exercise of First Amendment rights, but when it does so, it has the burden of
showing that the restriction is content-neutral, narrowly tailored to serve significant
governmental interests, and leaves open ample alternative channels of
communication. Reynolds v. Middleton, 779 F.3d 222, 226 (4th Cir. 2015) (“after
26
the plaintiff makes an initial showing [that speech was restricted by governmental
action], the burden then falls on the government to prove the constitutionality of
the speech restriction”); Johnson v. Minneapolis Park & Rec. Bd, 729 F.3d 1094,
1099 (8th Cir. 2013) (government agency imposing the restriction must show that
the restriction is narrowly tailored). The City Defendants have not attempted to
establish any of these prongs, including that the “signs up” policy is narrowly
tailored to serve a significant governmental interest.
The City Defendants can be expected to respond that the policy serves the
government’s interest in preventing obstruction of the sidewalk. However, mere
invocation of a governmental interest is not enough. Johnson, supra, 729 F.3d at
1099 (“it is not enough for the board to recite an interest that is significant in the
abstract; there must be a genuine nexus between the regulation and the interest is
seeks to serve”); Reynolds, supra, 779 F.3d at 229 (“argument unsupported by
evidence will not suffice to carry the government’s burden”). The City Defendants
must show that a sign suspended an inch above the sidewalk or resting on
someone’s toes poses less of an obstruction than sign resting directly on the
sidewalk, and how that difference substantially furthers the City’s asserted interest.
Because the “signs up” policy is not narrowly tailored to serve a significant
governmental interest, Plaintiffs will succeed on their First Amendment claim.
27
C.
Plaintiffs do not need to demonstrate disparate treatment to
prevail on their First Amendment claim.
Despite the undisputed evidence that the police were restricting the PLM
Plaintiffs’ speech by enforcing the “signs up” rule, and despite the absence of any
governmental interest which the rule was narrowly tailored to serve, the district
court nonetheless held that the PLM Plaintiffs had failed to show that they were
likely to prevail on their First Amendment claim. The holding was based on an
erroneous legal premise, namely that an as-applied challenge must be predicated
on a claim that a law is being enforced in a content-discriminatory manner.
ROA.1229:13–1230:10 (Court) (“He must show that he was prevented from
speaking while someone else espousing another viewpoint was permitted to do
so”); ROA.1236:2–5 (Court) (“if the attack is going to be as applied, you’re going
to have to – I believe you’re going to have to show that others have been treated
differently”); ROA.1243:17-23 (Court); ROA.1289:16-17 (Court) (“But as applied,
though, is equal protection, isn’t it?”). The court believed that unless the PLM
Plaintiffs established that the restriction on speech has been enforced in a contentor viewpoint-based manner, the PLM Plaintiffs would not be successful on this
claim.
The district court’s flawed reasoning was based on a misreading of the
United States Supreme Court’s decision in McCullen v. Coakley, supra, 134 S.Ct.
2518, striking down a Massachusetts law creating 35-foot speech-restrictive zone
28
around abortion clinics. Reading from a footnote in the McCullen decision
specifically addressing the evidentiary requirements for a successful as-applied
challenge to a viewpoint discriminatory law (134 S.Ct. at 2534 n.4), the district
court erroneously concluded that this was the only type of as-applied challenge a
party could bring to a restriction on speech. R.E. 27:24-28:17, ROA.1160:24–
1161:17. The district court misread the decision striking down the Massachusetts
law as being premised on the McCullen petitioners’ arguments that the law was
content-based because it applied only around abortion clinics and exempted clinic
workers. ROA.1291:22–1292:3; 1293:18-1293:7. On the contrary, the Supreme
Court rejected these arguments and held that the Massachusetts law was contentneutral (134 S.Ct. at 2534), but went on to unanimously strike down the law as
applied because it failed the narrow tailoring and ample alternative prongs. Id. at
2537, 2541.
Because the court believed discriminatory treatment to be an essential
element of an as-applied challenge, it erroneously found that the PLM Plaintiffs
had not met their burden of showing a likelihood of success on their First
Amendment claim.
III.
PLAINTIFFS DEMONSTRATED A SUBSTANTIAL LIKELIHOOD
OF SUCCESS ON THEIR FOURTH AMENDMENT CLAIM
To prevail on their Fourth Amendment claim, the PLM Plaintiffs must
sufficiently allege and prove that "(1) . . . [they] w[ere] arrested, and (2) the arrests
29
did not have the requisite probable cause." Haggerty v. Tex. S. Univ., 391 F.3d 653,
655-56 (5th Cir. 2004).
"The Supreme Court has defined probable cause as the 'facts and
circumstances within the officer's knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit an
offense.'" Piazza v. Mayne, 217 F.3d 239, 245-46 (5th Cir. 2000) (per curiam).
A.
The City Defendants had no probable cause to arrest the PLM
Plaintiffs for Obstruction.
The PLM Plaintiffs are substantially likely to prevail on their Fourth
Amendment claims because the City Defendants did not have probable cause to
arrest them for violating the obstruction statute. Miss. Code § 97-35-25, the
obstruction statute, makes it unlawful for “any person or persons to willfully
obstruct the free, convenient and normal use of any public sidewalk, street,
highway, alley, road, or other passageway by impeding, hindering, stifling,
retarding or restraining traffic or passage thereon.”
On February 28, 2013, Defendant McGowan arrested Plaintiff Mann for
obstruction, while she was standing on the public sidewalk adjacent to Fondren
Place, holding a sign that was resting on the ground. ROA.441:2-21, 442:9-15
(Mann). The unrebutted testimony and evidence established that (1) the sidewalk
where Mann was arrested was at least 6 feet wide, (2) Mann’s sign took up no
30
more space than her body, and (3) there was plenty of room for passersby to use
the sidewalk next to Mann. ROA.1036:11-1037:11 (McGowan); R.E. 58, ROA.340
(P33); ROA. 302:8-10, ROA.303-305 (Mann Declaration); ROA.498:6-19, 513:711, 523:2-19 (Mann). Furthermore, there was no evidence that Mann’s activities
kept any person from normal use of the sidewalk. The charge against Mann was
dismissed. ROA.92:7 (Mann).
On February 28, 2013, McGowan arrested PLM Plaintiff Brekeen for
obstruction, while he was standing on the public sidewalk adjacent to State Street,
holding two signs that were resting on the ground. ROA.437:2-23 (Mann);
ROA.594:10-21 (Brekeen). The unrebutted evidence showed that (1) the sidewalk
where Brekeen was arrested was almost seven feet wide6 (ROA.1176:4-10 (Lane)),
(2) McGowan walked by Brekeen while Brekeen was holding the signs and
McGowan was able to use the sidewalk with no difficulties (ROA.347 (P51video); ROA.1202:7-1203:9; 1204:22-1205:3 (Villavaso)), and (3) there was
plenty of room for passersby to use the sidewalk next to Brekeen (ROA.593:12-17,
597:24-598:1 (Brekeen); ROA.438:3-18 (Mann); R.E. 70, ROA.373 (D1); R.E. 69,
ROA.366 (D19); ROA.347 (P51-video)). Furthermore, there was no evidence that
6
Plaintiff Doug Lane measured the sidewalk and found it to be seven and a half feet
wide. ROA.1176:1–12. Commander McGowan initially testified that the sidewalk was
“right about six feet” wide, then revised that to six and a half feet, and then added “a 3inch curb at best.” ROA.880:19–881:20. McGowan’s measurement of the sidewalk thus
expanded by 12%.
31
Brekeen’s activity that day kept any person from normal use of the sidewalk. The
charge against Brekeen for violation of Miss. Code § 97-35-25 (obstruction) was
dismissed. ROA.625:20 – 626:4 (Brekeen).
On March 1, 2013, McGowan arrested Zastrow for obstruction, while he
was standing on the grassy public right of way adjacent to Fondren Place near the
corner of State Street, holding a sign that was resting on the ground. ROA.447:1-7
(Mann); ROA.113:5 (Zastrow); ROA.347 (P51-video); ROA.657:24-658:15
(Zastrow). The unrebutted evidence elicited at the injunction hearing established
that (1) the right of way where Zastrow was arrested was several feet wide
(ROA.712:15-713:8 (Zastrow); ROA.341 (P34); ROA.347 (P51-video)), (2)
Zastrow’s sign was parallel to the curb on Fondren (ROA.659:3-8, ROA.347 (P51video)), and (3) there was plenty of room for passersby to use the right of way next
to Zastrow (ROA.113:5 (Zastrow); ROA.347 (P51-video); ROA.658:23-659:8,
659:22-660:2 (Zastrow); ROA.447:10-14 (Mann)). Furthermore, there was no
evidence that Zastrow’s activities kept any person from normal use of the sidewalk
or right of way. The charge against Zastrow was dismissed. ROA.660:24-661:3
(Zastrow).
On December 4, 2013, Defendant Mary James arrested Plaintiffs Mann and
Nederhoed for obstruction, while they were holding a sign, occasionally letting it
rest on the ground beside them, and holding literature as they sat in small lawn
32
chairs on the public sidewalk near JWHO. R.E. 60, ROA.342 (P41); ROA.94:13
(Mann); ROA.110:4 (Nederhoed). The unrebutted evidence showed that the
sidewalk where Mann and Nederhoed were arrested was at least 6 feet wide.
ROA.433:6-11; 513:7-11 (Mann); ROA.302:8-10, ROA.303-305 (Mann
Declaration); ROA.1036:11-1037:11 (McGowan);7 ROA.340 (P33). There was
ample room for passersby to use the sidewalk next to Mann and Nederhoed.
ROA.498:6-19 (Mann); ROA.460:14-461:18 (Mann); ROA.94:13 (Mann); R.E.,
60, ROA.342 (P41). Furthermore, there was no evidence that either Mann’s or
Nederhoed’s activities kept any person from normal use of the sidewalk. On
February 13, 2014, when Mann and Nederhoed appeared for arraignment as
ordered by the issued citation, the City of Jackson Municipal Court cancelled the
arraignments because the City could not find any record of the charges.
ROA.94:13 (Mann); ROA.110:4 (Nederhoed).
In each of these incidents described above, there is no evidence that any of
Plaintiffs’ activities/conduct prevented any person from normal use of the
sidewalk. Inherent in the plain meaning of the “obstruction statute” is the
requirement that someone or something actually be obstructed from using the
sidewalk and/or right of way or is in immediate danger of being obstructed from
using the sidewalk and/or right of way. There is no evidence that anyone was
7
McGowan chose to take his measurements of the width of the Fondren Place sidewalk
from the posts that protrude out a few inches every six or so feet.
33
obstructed from or in danger of being obstructed from the sidewalk and/or right of
way on each of the occasions that Plaintiffs were arrested for obstructing the
sidewalk.
B.
The City Defendants had no probable cause to arrest the PLM
Plaintiffs for violation of the sign ordinance or for disturbing the
peace.
Interestingly, while Commander McGowan’s testimony at the preliminary
injunction hearing focused exclusively on claims that the PLM Plaintiffs had
obstructed the sidewalk, in his declaration submitted in opposition to the PLM
Plaintiffs’ Motion for Preliminary Injunction, McGowan stated that all arrests of
individuals protesting outside JWHO have been for violations of the sign ordinance
and disturbing the peace. ROA.249:7. PLM Plaintiffs are substantially likely to
prevail on their Fourth Amendment claims because the City Defendants did not
have probable cause to arrest them for either offense.
No provision in the sign ordinance prohibits plaintiffs from holding signs or
resting signs on the public sidewalks or right of ways adjacent to JWHO. On the
contrary, Jackson Municipal Code Section 102-31(21) specifically exempts from
regulation “Handheld signs, which shall specifically include all picket signs and
signs held or used in expressive or protest activity protected under the First
Amendment to the United States Constitution which do not otherwise interfere
with or obstruct motor vehicle traffic.” (Emphasis added).
34
PLM Plaintiffs do not interfere with or obstruct motor vehicle traffic with
their signs, and the City Defendants have presented no evidence of any such
obstruction or interference.
Similarly, the City Defendants presented no evidence that the PLM Plaintiffs
have violated any law against disturbing the peace. Defendant Officer Mary James
threatened to arrest Plaintiff Chisholm for being too loud and offered to “give her a
ride downtown” and charge her with “disturbing the peace” if Chisholm didn’t
quiet down. ROA.763:4-17 (Chisholm). On many occasions Defendants James
and McGowan have detained or threatened to arrest Zastrow for preaching or
reading the Bible too loudly on the sidewalk. ROA.646:20-647:22, 648:23-649:10;
678:4-18 (Zastrow). On January 28, 2014, Sergeant Albright cited Zastrow for
being “loud and boisterous” while reading the Bible on the sidewalk, but that
citation was dismissed. ROA.676:13-677:23 (Zastrow).
Mississippi Code § 97-35-15 “permits a conviction for speech only if that
speech was calculated to lead to a breach of the peace or was of such a nature as
ultimately led to a breach of the peace.” McLaurin v. Burnley, 279 F.Supp. 220,
225 (N.D. Miss. 1967).8 The PLM Plaintiffs have caused no disturbance of the
8
Mississippi Code § 97-35-15 (formerly Miss.Code Ann. § 2089.5) provides that “[a]ny
person who disturbs the public peace, or the peace of others, by violent, or loud, or
insulting, or profane, or indecent, or offensive, or boisterous conduct or language, or by
intimidation, or seeking to intimidate any other person or persons, or by conduct either
calculated to provoke a breach of the peace, or by conduct which may lead to a breach of
35
peace, and there was no probable cause for any arrests or threats of arrest against
them.
Thus, the PLM Plaintiffs are likely to prevail on the merits of their Fourth
Amendment claim, because any arrests and/or threatened arrests for disturbing the
peace or violating the sign ordinance were not supported by probable cause.
IV.
PLAINTIFFS DEMONSTRATED A SUBSTANTIAL LIKELIHOOD
OF SUCCESS ON THE MERITS OF THEIR DUE PROCESS CLAIM
The City Defendants have violated the PLM Plaintiffs’ right to due
process under the Fourteenth Amendment.
As a matter of due process, no one may be required at peril of life,
liberty or property to speculate as to the meaning of penal statutes. All
are entitled to be informed as to what the State commands or forbids.
The general test of vagueness applies with particular force in review
of laws dealing with speech. Stricter standards of permissible statutory
vagueness may be applied to a statute having a potentially inhibiting
effect on speech; a man may the less be required to act at his peril
here, because the free dissemination of ideas may be the loser.
Hynes v. Mayor of Oradell, 425 U.S. 610, 620 (1976) (internal citations and
quotations omitted).
Nothing on the face of Mississippi Code § 97-35-25, the obstruction statute,
or the Jackson Municipal Ordinance, Chapter 102, the sign ordinance, even hints to
a person of common intelligence that it requires picketers to suspend their signs
above the ground rather than resting them on the ground. Similarly, nothing in the
the peace, or by any other act” is guilty of a crime.
36
obstruction statute suggests that sitting in a chair or on a stepladder on the edge of
the sidewalk, or sitting on the curb, leaving ample room for pedestrians to pass, is
in and of itself forbidden.
Nothing in the law suggests that officers can dictate to speakers where they
may stand or not stand, backed up with the threat of arrest. See Statement of Facts,
Section D(1), supra, pp. 8-11; ROA.539:1-18 (Ostrander) (“the police would show
up and tell us move here, move there, you can’t sit on the curb, don’t be in the
street. They had more directions and changes for us”); ROA.451:12-23 (Mann)
(“the rules were changing one day after the next”).
The City Defendants also threaten to arrest various PLM plaintiffs without
even specifying the alleged offense, a due process violation in its purest form.
ROA.462:17 – 464:3 (Mann) (Officer James threat to give Mann “a ride
downtown” when Mann verbally challenged James for threatening Nederhoed for
standing off curb); ROA.762:8-18 (Chisolm) (McGowan threatened arrest if they
moved aside chairs set up by clinic escorts that were not in use); ROA.763:4-16
(Chisholm) (Officer James threat to give Chisholm “a ride downtown” for being
too loud).
The net effect of City Defendants’ arbitrary and capricious enforcement
policy is to allow persons to stand, sit, or put up a display on the sidewalk and
picket only at the whim of the police officer on the beat. Commander McGowan’s
37
dictum that “any obstruction is an obstruction” and thus a violation of the law “is
admittedly violated scores of times daily [] yet only some individuals – those
chosen by the police in their unguided discretion – are arrested.” Houston v. Hill,
482 U.S. 451, 46-67 (1987). This is so even though “[a] peaceful picketer carrying
a sign creates no more of an obstacle than a picketer carrying a cross or a
pedestrian waiting for a bus.” Foti v. Menlo Park, 146 F.3d 629, 642 (9th Cir.
1998).
First Amendment freedoms are meaningless if cities can simply declare that
anyone exercising them on a public sidewalk is partially obstructing the sidewalk
and thus violating the law. This type of unbridled discretion to be used at the
whim of any public official is exactly what the courts have held unconstitutional.
Houston v. Hill, supra. A criminal law and/or policy that authorizes and
encourages arbitrary and discriminatory law enforcement is unconstitutional.
United States v. Escalante, 239 F.3d 678, 680 (5th Cir. 2001) (citing City of
Chicago v. Morales, 527 U.S. 41, 56 (1999) (plurality).
Indeed, the threat of arbitrary enforcement is realized in the instant case,
where at the same time the City Defendants are citing and arresting PLM Plaintiffs
for allegedly obstructing the sidewalk and violating the sign ordinance by allowing
their signs to touch the ground, business owners regularly set up stationary
commercial displays on the public sidewalk directly across the street from and in
38
the vicinity of JWHO without threat of arrest for obstruction. ROA.972:7-978:13
(Glenn). Even after the PLM Plaintiffs pointed out these signs and other objects on
the sidewalk, the police took no action. ROA.469:24-470:19 (Mann); ROA.764:18765:20 (Chisolm); ROA.675:6-21 (Zastrow).
This ad hoc approach to enforcement of the obstruction statute is further
exemplified by non-enforcement of the law on some occasions. For example,
McGowan testified about an undated incident involving a woman on crutches who
was allegedly obstructed while trying to get to her office using the sidewalk on
State Street. Officer McGowan apparently did nothing but observe and listen to the
woman’s complaint. ROA.886:8–24 (McGowan). McGowan also claims that on
October 15, 2014, a person in a wheelchair was “obstructed” by picketers, but
again McGowan apparently took no action. ROA.370 (D53-video); ROA.1059:24
(McGowan). Rather, he spent his time ordering people who stepped into the gutter
to get back on the sidewalk, purportedly for their safety, lest one of the few cars
passing on Fondren Place inexplicably swerve out of the traffic lane toward the
sidewalk and hit them. ROA.894:19–895:6 (McGowan).
The City Defendants presented evidence that Jackson police officers
exercise discretion, defined by Police Chief Vance and Deputy Chief Wade in the
context of police work as “you’re not mandated to take a particular action” but
instead base enforcement decisions on the “totality of the circumstances.”
39
ROA.1082:12-16; R1097:12-13.
This understanding of officer “discretion” in enforcing the law omits one
critical qualifier, i.e., that the discretion be directed toward legitimate goals of law
enforcement. To take Deputy Chief Wade’s example of officers using discretion in
deciding whether or not to ticket someone stopped for speeding (ROA.1109:1216), an officer could correctly consider such circumstances as how much in excess
of the speed limit the person was traveling; weather and road conditions; how
much other traffic was on the road; whether the driver was endangering other
vehicles; and whether there were other violations apparent. Conversely, an officer
cannot exercise his discretion based on the race, gender, or hair length of the
driver; the content of bumper stickers on the vehicle; or whether the driver was a
contributor to the mayor’s re-election campaign.
The City Defendants presented no evidence as to what factors underlie their
exercise of discretion in capriciously imposing a zero tolerance policy for
“obstructions” which are not obstructing anyone on the public sidewalk adjacent to
JWHO, while at other times observing alleged obstructions of actual pedestrians
and taking no action, all the while ignoring unattended objects and obstructions on
other sidewalks in the vicinity of JWHO. In the absence of any principles guiding
their exercise of discretion, the City Defendants have, through their expansive
interpretation of the obstruction statute, “set a net large enough to catch all possible
40
offenders, and leave it to the [individual Jackson police officers] to step inside and
say who could be rightfully detained and who should be set at large.” Morales,
supra, 527 U.S. at 60. A regulation affecting speech activity “must not be designed
so that different officials could attach different meaning to the words in an
arbitrary and discriminatory manner.” Shamloo v. Miss. State Bd. Of Trustees, 620
F.2d 516, 524 (5th Cir. 1980). Cf. ROA.942:12-20 (McGowan) (“each officer
would have a different idea” of what size sign is a violation).
The unfettered, arbitrary discretion McGowan and the officers he supervises
exercise in enforcing the “deemed obstruction” policy violates the PLM Plaintiffs’
due process rights. PLM Plaintiffs are likely to prevail on their Due Process claim.
V.
PLAINTIFFS SATISFIED THE OTHER ELEMENTS FOR
ISSUANCE OF A PRELIMINARY INJUNCTION
A.
Plaintiffs Established a Substantial Threat of Irreparable Injury.
PLM Plaintiffs demonstrated that they have suffered and will continue to
suffer irreparable harm if injunctive relief is not granted. It is well established that
a denial of First Amendment freedoms, even for a short period of time, constitutes
irreparable injury justifying the grant of a preliminary injunction. Opulent Life
Church v. City of Holly Springs Miss., supra, 697 F.3d at 295; Texans for Free
Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013).
As the PLM Plaintiffs established above, Commander McGowan’s ad hoc
rule that all signs must be held in the air is unconstitutional and has a chilling
41
effect on PLM Plaintiffs’ free speech activities. For example, Ms. Chisholm
testified that she no longer carries a sign because she is afraid it will slip out of her
hand, touch the ground, and she will be arrested and have the sign confiscated.
ROA.757:14-15, 759:3-8, 786:14-17 (Chisholm). McGowan continues to threaten
to arrest all of the PLM Plaintiffs if they allow their signs to touch the ground. See
Statement of Facts, Section C, supra, pp. 6-8.
The City Defendants maintain that the PLM Plaintiffs’ First Amendment
rights are not being violated and that they will not suffer irreparable harm because
they are free to hold signs, so long as they keep them in the air. ROA.1282:11-17.
The City also argued that PLM Plaintiffs are free to engage in other free speech
activity and thus they have not been completely denied their First Amendment
freedoms. ROA.1282:3-10. Inhibiting one form of speech is irreparable and is not
mitigated even if that speech could be done elsewhere or another form of speech is
permissible. National People’s Action v. Village of Wilmette, 914 F.2d 1008, 1013
(7th Cir. 1990) (blocking the plaintiffs' speech in one city is irreparable even if that
speech would be allowed somewhere else).
Similarly, a violation of a person’s Fourth Amendment rights coupled with
evidence that the violations are reasonably likely to continue constitutes irreparable
harm that warrants the issuance of a preliminary injunction. Zepeda v. U.S. Immig.
& Nat. Svcs., 753 F.2d 719, 727 (9th Cir. 1983); Covino v. Patrissi, 967 F.2d 73, 77
42
(2nd Cir. 1992) (rights protected by the Fourth Amendment are fundamental, thus
any deprivation will result in irreparable harm). Furthermore, “when an alleged
deprivation of a constitutional right is involved, most courts hold that no further
showing of irreparable injury is necessary.” Opulent Life Church, supra, 697 F.3d
at 295 (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2948.1 (2d Ed. 1995)).
As the PLM Plaintiffs demonstrated above, the arrest of Mann and Brekeen
on February 28, 2013, and the arrest of Zastrow on March 1, 2013, for allowing
their signs to touch the ground and allegedly obstructing the sidewalk were all
made without probable cause and violated the Fourth Amendment prohibition
against unreasonable seizures. See Statement of Facts, Sections E(2) and (3),
supra, pp. 13-15.
Furthermore, ongoing violations of constitutional rights are more likely to be
irreparable. Zepeda, supra, 753 F.2d at 727. The City Defendants stand by their
“signs up” rule and continue to threaten arrest if PLM Plaintiffs let their signs
touch the ground. See Statement of Facts, Section C, supra, pp. 6-8;
ROA.1276:14-15. In light of City Defendants’ legally untenable application of
the obstruction statute and sign ordinance, the PLM Plaintiffs face a very real
threat of arrest at the whim of the City Defendants who on any given day may
claim that PLM Plaintiffs’ activity or location on the sidewalk that day constitutes
43
an obstruction. PLM Plaintiffs are in the position where they must adhere to the
arbitrary and unconstitutional orders issued by JPD and sacrifice their free speech
rights, or give up their liberty by risking arrest. Both harms are equally irreparable,
and PLM Plaintiffs will continue to suffer both unless injunctive relief is granted.
The district court’s conclusion that PLM plaintiffs have an adequate remedy
at law and that money damages are sufficient to compensate for any Fourth
Amendment violation is factually and legally erroneous. R.E. 32:13-15,
ROA.1165:13-15 (Ruling) (“The court believes there is an adequate remedy at law
for false arrest. You sue the individual who falsely arrested you”). The harm
caused by an unconstitutional seizure cannot be remedied by monetary damages.
Zepeda, supra, 753 F.2d at 727. This is particularly true in the present case. PLM
plaintiffs are routinely arrested or threatened with arrest on claims that their signs
resting on the ground constitute an obstruction in violation of state and city law.
See Statement of Facts, Section C, supra, pp. 6-8. The charges are often later
dismissed in justice court. ROA.92:7-8, 94:13 (Mann), 110:4 (Nederhoed), 113:5
(Zastrow). While the district court saw these dismissals as evidence that “the
process is working” (ROA.1267:9-13), the City Defendants continue to threaten to
arrest PLM Plaintiffs for obstruction if they allow their signs to touch the ground.
No amount of money damages could compensate PLM Plaintiffs for the loss of
liberty suffered during each meritless arrest. Moreover, to require PLM Plaintiffs
44
to file suit and be compensated with some nominal amount for their loss of liberty
each and every time the City erroneously arrests them is irrational and a waste of
judicial resources. The harm caused by this sort of constitutional violation cannot
be remedied by monetary damages and thus necessitates injunctive relief.
Moreover, as Plaintiffs have discovered to their detriment, the state court’s
procedure in these matters is so prolonged as to approach interminable. For
example, plaintiff Mann was unlawfully arrested over four years ago for
purportedly interfering with a business. ROA.302:4-6. One of the key elements of
the crime is that the person actually be on the business’ property at the time of the
offense. Miss. Code § 97-35-5 (“Whoever, while in or on the premises of another
…”). No evidence was presented that Mann was ever on the business’s property
and in fact she was never on the business’s property. Rather, Mann engaged in
peaceful free speech activity on the public sidewalk and did not interfere with the
business at all. ROA.91; ROA.92; ROA.302 (Mann Declarations). It took the City
over a year to bring her to trial before a municipal judge, who is not required to be
licensed to practice law. Id. It took another year for Judge Clay issued his ruling
on the case finding Ms. Mann guilty. Id. Since Mann filed her notice of appeal in
November 2013, she has not received any communication from the court regarding
the appeal. There is currently no pending court date for Mann to appear on the
appeal. Id. The Jackson criminal appeals process does not provide an adequate
45
remedy to challenge the constitutionality of a criminal statute as applied to
plaintiffs’ conduct.
The post-deprivation remedies available under Mississippi state law are
neither adequate nor expedient in this matter. Moreover, money damages alone are
an inadequate remedy for the irreparable injury of the loss of First, Fourth, and
Fourteenth Amendment rights. Plaintiffs face a real danger of unlawful arrest every
day that they choose to engage in constitutionally protected free speech on the
public sidewalks and right of ways adjacent to JWHO because of the City
Defendants’ misapplication of state and local laws.
B.
The Balance of Harms Sharply Tips In Plaintiffs’ Favor
As set forth above, the PLM Plaintiffs have been harmed and will continue
to be harmed if the City Defendants are not enjoined. These harms include the loss
of First Amendment rights, arrests, threats of arrest or citation, and the chilling
effect of having to deal with frivolous citations for engaging in First Amendment
activity. Because Plaintiffs will suffer irreparable harm, the City Defendants
“would need to present powerful evidence of harm to its interests to prevent
[Plaintiffs] from meeting” the balance of harms prong. Opulent Life, supra, 697
F.3d at 297.
The City Defendants will not be harmed if a preliminary injunction issues,
for several reasons. First, as discussed supra, Section II(B), the “signs up” rule
46
does not further any legitimate governmental interest, and so enjoining its
enforcement will not harm the City Defendants. Second, as shown above, the
“deemed obstruction” rule enforced on the sidewalk adjacent to JWHO does not
address any real problem with pedestrian or vehicular traffic in that area. Third, the
“deemed obstruction” rule is enforced only in response to calls for service. i.e.,
complaints.9 The City Defendants assert that the police do not take action against
signs or other objects on sidewalks unless someone makes a call for service to the
police. ROA.1069:5-10 (McGowan); ROA.1313:14-16 (City) (“What evidence
you do have has been presented by the City and show that the City and its officers
only go out to the -- to respond to calls for service”). Many of the calls for service
come from business owners in the area, such as Nathan Glenn, the restaurant
owner who calls in complaints from across State Street, and Alan Lange, who does
the same from the building across Fondren Place from JWHO. ROA.1053:17-22;
ROA.1050:20 – 1052:2 (McGowan). The PLM Plaintiffs have pointed out signs
and other objects on the sidewalk to the police, without any action being taken.
ROA.469.24-470:19 (Mann); ROA.764:18-765:20 (Chisholm); ROA.95:15
(Mann); ROA.675:6-21 (Zastrow).
9
However, the City Defendants’ own record of calls for service to 2903 State
Street/JWHO does not reflect a single call for service to 2903 State Street for obstruction
of the sidewalk. ROA.363-364 (D51)
47
Sandwich board signs, benches, statues, and other objects are regularly
placed on the public sidewalk directly across State Street from and in the vicinity
of JWHO. ROA.972:7-978:13 (Glenn); R.E. 64, ROA.351 (P1); R.E. 65, ROA.352
(P2), R.E. 66, ROA.353 (P3). Commander McGowan testified that he is aware
that they are there, but “None of that stuff obstructs the sidewalk.” ROA.885:15–
22.10 But compare R.E. 66, ROA.353 (P3) (photograph of signs, benches, and other
objects on sidewalk on east side of State Street) with R.E. 70, ROA.373 (D1)
(photograph of plaintiff Brekeen on sidewalk on west side of State Street) and R.E.
60, ROA.342 (P41) (photograph of plaintiffs Mann and Zastrow being arrested for
obstructing sidewalk on Fondren Place).
On any given day, there are undoubtedly dozens or even hundreds of objects
left for some period of time on a public sidewalk that the City Defendants take no
action to remove. On any given day, hundreds of people pause on the public
sidewalk to chat with a friend, look at a map, text a message, or wait for a ride, and
the City Defendants take no action to make them keep moving lest they “obstruct”
10
Commander McGowan testified that the sidewalk on the east side of State Street is
about twelve feet wide, and that this was “double plus” the width of the sidewalk on the
west side of State Street, adjacent to JWHO. ROA.903:3 – 904:5. McGowan did not
specify exactly where or how he measured theses widths, but Exhibit P-3 (R.E. 66,
ROA.353) shows that the sidewalk on the east side of State Street is considerably
narrower than twelve feet, not much wider than the sidewalk on the west side of State
Street. See R.E. 70, ROA.373 (D1).
48
the sidewalk. And no one is harmed by this lack of zealousness in enforcing the
“deemed obstruction” policy.
As the City Defendants take action only about alleged obstructions on the
sidewalk if there is a complaint from someone, even a person completely
unaffected by the alleged obstruction, there is clearly no pressing necessity for
them to enforce the “deemed obstruction” rule against the PLM Plaintiffs. The City
Defendants’ interests should lie in preventing actual harms, not in responding to
any complaint, however frivolous.
The City Defendants’ interests are sufficiently protected if the police enforce
the obstruction laws only where there is evidence a person has willfully hindered
or impeded the passage of another person on the sidewalk. See Miss. Code § 9735-25.
C.
The Public Interest Favors Granting the Injunction
Courts considering requests for preliminary injunctions have consistently
recognized that the public interest is best served by upholding First Amendment
principles. "[I]njunctions protecting First Amendment freedoms are always in the
public interest." Opulent Life, supra, 697 F.3d at 298, quoting Christian Legal
Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006).
The City Defendants’ enforcement of inapplicable criminal statutes and
ordinances to interfere with the PLM Plaintiffs’ speech infringes not only the rights
49
of Plaintiffs, but also the interests and rights of others who may wish to engage in
expressive activity on public streets and public ways but whose activity may
generate “calls for service” to the police. Thus, enjoining the enforcement of the
“signs up” rule and the “deemed obstruction” rule will serve the public interest.
The City Defendants will not be harmed by the issuance of the preliminary
injunction. The City Defendants will maintain their full complement of law
enforcement tools for dealing with any unlawful, disruptive behavior on the part of
the PLM Plaintiffs or others, including conduct that creates an actual, rather than a
theoretical, obstruction of pedestrian traffic on public sidewalks. All the City
Defendants will be enjoined from doing is interfering with lawful activity by
misapplying these laws.
VI.
THE DISTRICT COURT IMPOSED AN UNDULY STRINGENT
BURDEN OF PROOF ON THE PLAINTIFFS
In the lower court, the City Defendants argued that the PLM Plaintiffs were
required to establish all elements for preliminary injunctive relief by clear and
convincing evidence. ROA.806:19-25 (City) (“the burden of persuasion is by clear
and convincing evidence, not preponderance of the evidence”); 807:2-4, 810:10-12
(City) (“Injunctive relief is only granted under extraordinary circumstances under a
clear and convincing standard of evidence”). The court adopted the City’s
argument and erroneously held plaintiffs to a higher standard of proof than was
50
required. R.E. 22:16-22, ROA.1155:16–22 (Ruling); R.E. 38:13-17, ROA.
1171:13-17 (Ruling).
A plaintiff’s burden at a preliminary injunction hearing is not higher than the
burden it must meet at trial, which is preponderance of the evidence. See, e.g.,
Crowder v. Sinyard, 884 F.2d 804, 824 (5th Cir. 1989) (plaintiff must prove
elements of 42 U.S.C. §1983 claim for Fourth Amendment violation by
preponderance of the evidence). See also Pattern Jury Instructions, Civil Cases,
Fifth Circuit (2014) Instruction 10.1 et seq. (burden on Fourth Amendment and
other civil rights claims is by preponderance of the evidence). Rather, the movant
must present only sufficient evidence to show a likelihood of prevailing at trial by
the standard of preponderance of the evidence, a lower standard than that required
to prevail after a full trial on the merits. Sunbeam Products, Inc. v. West Bend Co.,
123 F.3d 246, 254, n.13 (5th Cir. 1997) (lack of empirical data due to urgency “is
precisely the sort of contingency that the lower burden of proof governing
preliminary injunctions is intended to accommodate”).
The district court also erred in not acknowledging that the burden of proof
shifted to the City Defendants on the First Amendment claim. ROA.1290:7-8
(Court) (“the City didn’t have the burden to do a thing”). As noted in Section II.B,
supra, the burden of proof shifted to the City Defendants to show that the speech
51
restrictions they enforced met the three-part test for time, place, and manner
restrictions on speech.
The PLM plaintiffs presented more than sufficient evidence to show a
likelihood of prevailing on the merits of their First Amendment claim, their Fourth
Amendment claim, and their Due Process claim. PLM plaintiffs also demonstrated
that they would suffer irreparable injury if the injunction is not granted, that the
balance of harms weighs heavily in favor of the PLM Plaintiffs, and that the public
interest would best be served by issuing the injunction. Thus, the district court
erred in not granting PLM Plaintiffs their requested relief.
CONCLUSION
The City Defendants are on a mission and, as evidenced by the 2008
consent decree, have been for several years. Their mission is to discourage First
Amendment activity that annoys local business owners; their current strategy is to
make speakers unwilling participants in a game of “Mother, May I?” with the
police. Losers are sent, not back to the starting line, but to criminal court on
frivolous charges of obstructing a sidewalk or street.
The PLM Plaintiffs respectfully ask this Court to reverse the district court’s
denial of the preliminary injunction and remand with instructions that the district
court enter a preliminary injunction against the City Defendants directing that the
police enforce the obstruction laws against the PLM Plaintiffs only where there is
52
evidence that a plaintiff has willfully hindered or impeded the passage of an
identifiable person or vehicle.
Respectfully Submitted,
/s/ Catherine W. Short_________
Catherine W. Short (CA Bar No. 117442)
LIFE LEGAL DEFENSE FOUNDATION
PO BOX 1313
Ojai, CA 93024
Tel: 707-337-6880
Fax: 805-640-1940
Email: [email protected]
Attorney for Appellants
53
CERTIFICATE OF SERVICE
This is to certify that I, Catherine Short, have this date caused the foregoing
brief to be filed via the Court’s ECF System and thereby served on the following
persons:
CLAIRE BARKER (MSB#101312)
Office of the City Attorney
455 East Capitol Street
PO Box 2779
Jackson, Mississippi
601/960-1799 (office)
601/960-1756 (facsimile)
[email protected]
COUNSEL FOR APPELLEES
This the 28th day of April, 2015.
/s/ Catherine W. Short_________
Catherine W. Short (CA Bar No. 117442)
LIFE LEGAL DEFENSE FOUNDATION
PO BOX 1313
Ojai, CA 93024
Tel: 707-337-6880
Fax: 805-640-1940
Email: [email protected]
Attorney for Appellants
54
CERTIFICATE OF COMPLIANCE
1.
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 12,464 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
for iMac 2011 version 14.4.9 in Times New Roman 14 point font.
/s/ Catherine W. Short_________
Catherine W. Short (CA Bar No. 117442)
LIFE LEGAL DEFENSE FOUNDATION
PO BOX 1313
Ojai, CA 93024
Tel: 707-337-6880
Fax: 805-640-1940
Email: [email protected]
Attorney for Appellants
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