International Society for Krishna Consciousness of California Inc et al. vs. City of Los Angeles et al.

Filing 15

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER 10 by Judge Dean D. Pregerson . (lc). Modified on 3/6/2015 (lc).

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 16 INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF CALIFORNIA INC., a California nonprofit religious corporation; INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF ARIZONA, an Arizona nonprofit religious corporation doing business as BLUE STAR, 17 Plaintiffs, 12 13 14 15 18 19 20 21 22 23 v. CITY OF LOS ANGELES, a California Municipal Corporation; CITY OF LOS ANGELES DEPARTMENT OF RECREATION AND PARKS, a division of the City of Los Angeles, Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-01320 DDP (AGRx) ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER [Dkt. No. 10] 24 25 Plaintiffs International Society for Krishna Consciousness of 26 California and International Society for Krishna Consciousness of 27 Arizona (collectively, “ISKCON”) wish to be able to proselytize, 28 including selling T-shirts bearing their message, in the vicinity 1 of Griffith Observatory in Griffith Park. 2 currently allowed to do so, park rangers have restricted their 3 activity to a “designated area” at the northeast1 end of the 4 Observatory property. 5 6 Although Defendants are (Mem. P. & A. at 5:6-13.) Plaintiffs therefore seek a temporary restraining order (“TRO”) preventing city officials from 7 warning, citing, arresting, prosecuting, harassing, or 8 otherwise enforcing an unwritten rule or policy the prohibits 9 the sale of religious literature, and the solicitation of 10 donations in conjunction with the distribution of religious 11 literature, as well as the sale of message-bearing T-shirts 12 and other merchandise, on the public walkways and plaza areas 13 of the Griffith Observatory. 14 (Proposed Order, attached to Application.) 15 order to show cause why a preliminary injunction (presumably along 16 the same lines) should not be granted. 17 Cause, attached to Application.) 18 Plaintiffs’ submission, denies the Application for a TRO but grants 19 the request for an order to show cause. 20 Plaintiffs also seek an (Proposed Order to Show The Court, having considered A preliminary injunction is ordinarily granted on a noticed 21 motion. 22 circumstances justify issuance of an injunction ex parte, without 23 giving the opposing party an opportunity to respond: Fed. R. Civ. P. 65(a)(1). Only extraordinary 24 The court may issue a temporary restraining order without 25 written or oral notice to the adverse party or its attorney 26 27 28 1 Plaintiffs allege that the designated area is at the southeast corner, but aerial photos seem to show otherwise. e.g., Decl. David Liberman, Ex. N.) 2 (See, 1 only if (A) specific facts in an affidavit or a verified 2 complaint clearly show that immediate and irreparable injury, 3 loss, or damage will result to the movant before the adverse 4 party can be heard in opposition; and (B) the movant's 5 attorney certifies in writing any efforts made to give notice 6 and the reasons why it should not be required. 7 8 9 Fed. R. Civ. P. 65(b)(1). Plaintiffs have served Defendants with a copy of the Application, which may have provided city officials with at least 10 constructive notice of its existence. 11 no meaningful opportunity for the City to be “heard in opposition,” 12 which is the point of ordinarily requiring a properly noticed 13 motion to obtain an injunction. 14 “our entire jurisprudence runs counter to the notion of court 15 action taken before reasonable notice and an opportunity to be 16 heard has been granted both sides of a dispute.” 17 Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 18 of Alameda Cnty., 415 U.S. 423, 439 (1974). 19 TRO’s “should be restricted to serving their underlying purpose of 20 preserving the status quo and preventing irreparable harm just so 21 long as is necessary to hold a hearing, and no longer.” 22 the Ninth Circuit has limited the issuance of ex parte TRO’s to a 23 “very few circumstances.” 24 452 F.3d 1126, 1131 (9th Cir. 2006). 25 ex parte, for example, when the adverse party is unknown or cannot 26 be located. 27 defendant would render fruitless the further prosecution of the Id. But the Application provides As the Supreme Court has noted, Granny Goose The use of ex parte Id. Thus, Reno Air Racing Ass'n., Inc. v. McCord, An injunction may be issued Or it may be issued where “notice to the 28 3 1 action.” 2 here. 3 Id. Neither of those limited circumstances is present The Court notes that Plaintiffs’ attorney has not separately 4 certified in writing a specific set of reasons why notice (and the 5 concomitant opportunity to be heard) should not be required.2 6 Plaintiffs do argue, delving into the elements required from 7 preliminary injunctive relief generally,3 that they will suffer 8 irreparable injury. 9 Am.-Arab Anti-Discrimination Comm. v. Reno5 for the proposition Plaintiffs cite to Elrod v. Burns4 and 10 that “[t]he loss of First Amendment freedoms, for even minimal 11 periods of time, unquestionably constitutes irreparable injury.” 12 But neither Am.-Arab Anti-Discrimination Comm. nor Elrod dealt with 13 a application for an ex parte TRO. 14 both the cited cases were essentially prohibited from exercising 15 their First Amendment rights of association at all.6 16 discerning the constitutional injury was relatively 17 straightforward. Moreover, the plaintiffs in Thus, 18 19 2 20 Fed. R. Civ. P. 65(b)(1)(A)-(B). 3 21 22 23 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 24 4 427 U.S. 347, 373 (1976) (plurality opinion). 25 5 70 F.3d 1045, 1058 (9th Cir. 1995) (quoting Elrod). 26 6 27 28 Elrod, 427 U.S. at 351 (plaintiffs were fired or faced being fired “solely because they did not support and were not members of the Democratic Party”); Am.-Arab Anti-Discrimination Comm., 70 F.3d at 1052-53 (plaintiffs imprisoned and threatened with deportation for membership in allegedly communist group). 4 1 In this case, by contrast, Plaintiffs are free to go right now 2 to Griffith Observatory to proselytize and sell T-shirts.7 3 sole question at issue is whether they may be confined to a 4 particular space set aside for such activities. 5 17-22.) 6 City appears to provide a space for Plaintiffs’ activities that is 7 alongside one major path of access to the Observatory the Court – 8 not the location Plaintiffs would prefer, but not one which 9 obviously deprives Plaintiffs of an audience.8 10 The (Mem. P. & A. at Based on the aerial photos and descriptions provided, the (See, e.g., Decl. David Liberman, Ex. N (showing that the designated area is in view 11 7 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs also allege they are hindered because their “permit request has been languishing for over one year with no response.” (Mem. P. & A. at 17:10-11.) The problem with this argument is that they present no evidence, of any kind, that the City requires them to obtain a permit before they can begin their religious/speech activities. The alleged “permit request” appears to be nothing more than Plaintiffs’ attorney’s communication with park rangers and the City Attorney’s office. (Decl. David Liberman, ¶¶ 3-10 and related exhibits.) Nothing about these exchanges suggests that Plaintiffs were required to get a permit, or that Mr. Liberman’s communications with various city officials actually constituted a required “permit request.” The City does appear to require persons engaged in charitable solicitation to obtain an “Information Card” in accordance with city procedures. Los Angeles Municipal Code § 44.09(a). However, Plaintiffs appear to have no difficulty obtaining such cards. (Mem. P. & A. at 4-5.) 8 A city is entitled to confine expressive activity to certain locations in a park, as long can show real reasons for doing so and those doing the expressing can still reach their audience: By delineating precise performance locations, the City can assure itself and park tenants that street performers are not blocking entrances, exits, and pathways . . . [and] reduce territorial disputes by eliminating uncertainty over the permissible boundaries of a given performance . . . . The only issue, then, is whether the location restriction leaves open ample alternative channels for communication. As we [have] explained . . . an alternative is not ample if the speaker is not permitted to reach the intended audience. Berger v. City of Seattle, 569 F.3d 1029, 1049 (9th Cir. 2009) (citations omitted) (internal quotation marks omitted). 5 1 of the main plaza and located at the mouth of a large road on which 2 many park patrons’ cars are parked); Id., Exs. HH, JJ (showing park 3 patrons in the area).) 4 Plaintiffs’ facts “clearly show” that their First Amendment 5 interests would be immediately and irreparably harmed absent a TRO. 6 Fed. R. Civ. P. 65(b)(1).9 7 The Court therefore cannot yet say that The Court therefore DENIES the Application for a TRO. In the 8 interest of economy, the Court will not require Plaintiffs to 9 submit a separate noticed motion, but GRANTS Plaintiffs’ request 10 for an Order to Show Cause. 11 set the hearing on the order to show cause without regard to the 12 twenty-eight (28) days notice of motion requirement of L.R. 6-1.” 13 L.R. 65-1. 14 this matter. “If the TRO is denied, the Court may The Court will issue a separate Order to Show Cause in 15 16 IT IS SO ORDERED. 17 18 Dated: March 6, 2015 DEAN D. PREGERSON United States District Judge 19 20 21 22 9 23 24 25 26 27 28 An additional reason the Court denies the Application is that the injunction requested may be overly broad. An order granting an injunction must “state its terms specifically” and “describe in reasonable detail . . . the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1)(B)-(C). The Court cannot discern from the language of Plaintiffs’ proposed order whether the City could enforce any unwritten time, place, and manner restrictions on religious solicitation activities “on the public walkways and plaza areas of the Griffith Observatory.” The effect of the proposed injunction appears to be substantially broader in scope than the complained-of policy, and the Court declines to issue such an openended injunction, at least without further inquiry. 6

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