Occupy Tucson et al v. Tucson, City of et al

Filing 6

ORDER denying 2 Motion for TRO and Preliminary Injunction.. Signed by Judge Cindy K Jorgenson on 11/8/2011.(JKM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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OCCUPY TUCSON, an unincorporated)
political organization; SAMUEL AGGER,)
a single man residing in the City of)
Tucson; CRAIG BARBER, a single man)
residing in the City of Tucson; LEESA)
WORLEY, a single woman residing in the)
City of Tucson; KARLAREITH TERRY,)
a single woman residing in the City of)
Tucson; KASEE DWYER, a single)
woman residing in the City of Tucson;)
GARY BRANSON, a married man)
residing in the City of Tucson; and,)
WILLIAM WARFIELD, a single man)
)
residing in the City of Tucson,
)
)
Plaintiffs,
)
)
vs.
)
)
THE CITY OF TUCSON, a municipal)
corporation of the State of Arizona;)
TUCSON POLICE DEPARTMENT, a)
legal entity of the City of Tucson;)
ROBERT “BOB” WALKUP, in his)
official capacity as Mayor of the City of)
Tucson; members of the Tucson City)
Council in their respective official)
capacities; RICHARD MIRANDA, in his)
official capacity as Acting Tucson City)
Manager; MICHAEL RANKIN, in his)
official capacity as Tucson City Attorney;)
FRED GREY in his official capacity as)
director of City of Tucson Parks and)
Recreation Department; and ROBERTO)
VILLASEÑOR, in his official capacity as)
)
Chief of the T,
)
)
Defendants.
)
)

No. CV-11-699-TUC-CKJ

ORDER

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Currently pending before the Court is Plaintiffs’ Motion for Temporary Restraining

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Order and Preliminary Injunction [Doc. 2]. In their motion Plaintiffs request the Court to

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enjoin “enforcing the provisions of Section 12 of the Tucson City Code, and/or law or

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ordinance to prohibit the same from picketing, protesting, speaking, leafleting, assembling,

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or otherwise peacefully engaging in expressive activity protected by the First Amendment

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to the United States Constitution and Article 2 § 5 of the Arizona Constitution in Armory

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Park, Viente de Agosto Park or any public land in the City of Tucson.”1 Pls.’ Mot. for TRO

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and Prelim. Inj. [Doc. 2] at 2.

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I.

ANALYSIS

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Whether to grant or deny a motion for a temporary restraining order is within the

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Court’s discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1132-33 (9th Cir.

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1979). “The standard for issuing a temporary restraining order is identical to the standard

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for issuing a preliminary injunction.”

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Corporation/Young Bros., Ltd. Salaried Pension Plan, 27 F. Supp. 2d 1225, 1228 (D. Haw.

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1998); See New Motor Vehicle Bd. v. Orrin W. Fox. Co., 434 U.S. 1345, 1347 n. 2, 98 S.Ct.

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359, 361, 54 L.Ed.2d 439 (1977); Los Angeles Unified Sch. Dist. v. U.S. Dist. Court, 650

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F.2d 1004, 1008 (9th Cir. 1982). A preliminary injunction is an extraordinary and drastic

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remedy and will not be granted absent a clear showing of likely success in the underlying

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claim and likely irreparable injury. See Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct.

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1865, 1867, 138 L.Ed.2d 162 (1997) (per curiam); Warsoldier v. Woodford, 418 F.3d 989,

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993-94 (9th Cir. 2005); Pratt v. Rowland, 65 F.3d 802, 805 (9th Cir. 1995); Fed. R. Civ. P.

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65. To obtain a preliminary injunction, the moving party must show “that he is likely to

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129

Whitman v. Hawaiian Tug & Barge

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Although Plaintiffs’ motion cites Tucson City Code Section 12, this chapter relates to
Elections. The Court construes this request as relating to Chapter 21, Parks and Recreation.

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S. Ct. 365, 374, 172 L.Ed.2d 249 (2008); Sammartano v. First Judicial District Court, 303

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F.3d 959, 973 (9th Cir. 2002) (recognizing that a party can establish irreparable harm by

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demonstrating the existence of a colorable First Amendment claim). The moving party has

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the burden of proof on each element of the test. Environmental Council of Sacramento v.

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Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). “[T]he test for granting a preliminary

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injunction is ‘a continuum in which the required showing of harm varies inversely with the

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required showing of meritoriousness.” Sammartano, 303 F.3d at 973-4.

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Additionally, the function of a preliminary injunction is to preserve the status quo

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pending a determination on the merits. Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir.

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1988). As such, there is heightened scrutiny where the movant seeks to alter rather than

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maintain the status quo. Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993)

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(holding that mandatory, as opposed to prohibitory, injunctions are “subject to a heightened

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scrutiny and should not be issued unless the facts and law clearly favor the moving party.”).

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The Ninth Circuit Court of Appeals has held that this type of mandatory injunctive relief is

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disfavored, and should be denied unless the facts and law clearly favor the movant.

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Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979). There is also heightened

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scrutiny where the injunction would provide substantially all the relief the movant may

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recover after a full trial on the merits. Kikumura v. Hurley, 242 F.3d 950, 955 (9th Cir.

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2001).

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A. Temporary Restraining Order

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A Temporary Restraining Order (“TRO”) is unwarranted in this case. Although the

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record reflects that Plaintiffs’ counsel spoke with Defendant Michael Rankin about the plan

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to file the Complaint [Doc. 1] in this matter, it is devoid of any reasons why Defendants

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should not be given notice and an opportunity to respond to the allegations at issue. See

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Compl., Exh. 2, Decl. of Attorney Paul Gattone in Support of Pls.’ Mot. for TRO/Prelim. Inj.

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[Doc. 1]; Fed. R. Civ. P. 65(b)(1) (“The court may issue a temporary restraining order

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without written or oral notice to the adverse party or its attorney only if . . . specific facts in

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an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss,
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or damage will result to the movant before the adverse party can be heard in opposition; and

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. . . the movant’s attorney certifies in writing any efforts made to give notice and the reasons

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why it should not be required.”). Plaintiffs activities began October 15, 2011. Compl. [Doc.

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1] at ¶ 26. On November 3, 2011, Plaintiffs were directed to leave Armory Park, and re-

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established their activities at Viente De Agosto Park. Id. at ¶ 27. Tucson Police Department

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(“TPD”) officers have cited protesters for violations of the Tucson City Code since Plaintiffs’

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occupation commenced. Id. at ¶ 26. The ongoing activities of Plaintiffs and TPD’s response

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has remained unchanged. Plaintiffs filings with this Court fail to demonstrate a clear

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showing of likely success on the merits and likely irreparable injury. See Winter, 555 U.S.

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at 20, 129 S. Ct. at 374; Mazurek, 520 U.S. at 972, 117 S.Ct. at 1867; Am. Trucking Ass’n

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v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); Warsoldier, 418 F.3d at 993-94;

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Pratt, 65 F.3d at 805 (9th Cir. 1995); Fed. R. Civ. P. 65. Plaintiffs’ counsel failed to certify

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in his affidavit why notice should not be given to Defendants or why it should not be

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required. Accordingly, Plaintiffs’ request for a TRO is DENIED.

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B. Preliminary Injunction

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Counsel has failed to meet the necessary procedural requirements for a preliminary

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injunction. Preliminary injunctive relief can not be granted unless and until Plaintiffs

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properly serve Defendants with the documents that have initiated this case, and Defendants

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have had an opportunity to respond. As such, Plaintiffs’ request for a preliminary injunction

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is DENIED without prejudice.

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Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Temporary
Restraining Order and Preliminary Injunction [Doc. 2] is DENIED.
DATED this 8th day of November, 2011.

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