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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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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,

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Plaintiffs,

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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.
___________________________

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Case No. CV 15-01320 DDP (AGRx)
ORDER DENYING APPLICATION FOR
TEMPORARY RESTRAINING ORDER
[Dkt. No. 10]

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Plaintiffs International Society for Krishna Consciousness of

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California and International Society for Krishna Consciousness of

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Arizona (collectively, “ISKCON”) wish to be able to proselytize,

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including selling T-shirts bearing their message, in the vicinity

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of Griffith Observatory in Griffith Park.

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currently allowed to do so, park rangers have restricted their

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activity to a “designated area” at the northeast1 end of the

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Observatory property.

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Although Defendants are

(Mem. P. & A. at 5:6-13.)

Plaintiffs therefore seek a temporary restraining order
(“TRO”) preventing city officials from

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warning, citing, arresting, prosecuting, harassing, or

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otherwise enforcing an unwritten rule or policy the prohibits

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the sale of religious literature, and the solicitation of

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donations in conjunction with the distribution of religious

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literature, as well as the sale of message-bearing T-shirts

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and other merchandise, on the public walkways and plaza areas

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of the Griffith Observatory.

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(Proposed Order, attached to Application.)

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order to show cause why a preliminary injunction (presumably along

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the same lines) should not be granted.

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Cause, attached to Application.)

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Plaintiffs’ submission, denies the Application for a TRO but grants

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the request for an order to show cause.

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Plaintiffs also seek an

(Proposed Order to Show

The Court, having considered

A preliminary injunction is ordinarily granted on a noticed

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motion.

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circumstances justify issuance of an injunction ex parte, without

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giving the opposing party an opportunity to respond:

Fed. R. Civ. P. 65(a)(1).

Only extraordinary

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The court may issue a temporary restraining order without

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written or oral notice to the adverse party or its attorney

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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.)
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(See,

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only if (A) specific facts in an affidavit or a verified

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complaint clearly show that immediate and irreparable injury,

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loss, or damage will result to the movant before the adverse

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party can be heard in opposition; and (B) the movant's

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attorney certifies in writing any efforts made to give notice

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and the reasons why it should not be required.

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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

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constructive notice of its existence.

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no meaningful opportunity for the City to be “heard in opposition,”

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which is the point of ordinarily requiring a properly noticed

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motion to obtain an injunction.

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“our entire jurisprudence runs counter to the notion of court

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action taken before reasonable notice and an opportunity to be

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heard has been granted both sides of a dispute.”

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Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70

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of Alameda Cnty., 415 U.S. 423, 439 (1974).

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TRO’s “should be restricted to serving their underlying purpose of

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preserving the status quo and preventing irreparable harm just so

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long as is necessary to hold a hearing, and no longer.”

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the Ninth Circuit has limited the issuance of ex parte TRO’s to a

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“very few circumstances.”

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452 F.3d 1126, 1131 (9th Cir. 2006).

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ex parte, for example, when the adverse party is unknown or cannot

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be located.

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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

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action.”

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here.

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Id.

Neither of those limited circumstances is present

The Court notes that Plaintiffs’ attorney has not separately

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certified in writing a specific set of reasons why notice (and the

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concomitant opportunity to be heard) should not be required.2

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Plaintiffs do argue, delving into the elements required from

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preliminary injunctive relief generally,3 that they will suffer

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irreparable injury.

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Am.-Arab Anti-Discrimination Comm. v. Reno5 for the proposition

Plaintiffs cite to Elrod v. Burns4 and

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that “[t]he loss of First Amendment freedoms, for even minimal

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periods of time, unquestionably constitutes irreparable injury.”

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But neither Am.-Arab Anti-Discrimination Comm. nor Elrod dealt with

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a application for an ex parte TRO.

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both the cited cases were essentially prohibited from exercising

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their First Amendment rights of association at all.6

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discerning the constitutional injury was relatively

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straightforward.

Moreover, the plaintiffs in

Thus,

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Fed. R. Civ. P. 65(b)(1)(A)-(B).

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“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).

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427 U.S. 347, 373 (1976) (plurality opinion).

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70 F.3d 1045, 1058 (9th Cir. 1995) (quoting Elrod).

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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).
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In this case, by contrast, Plaintiffs are free to go right now

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to Griffith Observatory to proselytize and sell T-shirts.7

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sole question at issue is whether they may be confined to a

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particular space set aside for such activities.

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17-22.)

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City appears to provide a space for Plaintiffs’ activities that is

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alongside one major path of access to the Observatory the Court –

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not the location Plaintiffs would prefer, but not one which

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obviously deprives Plaintiffs of an audience.8

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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

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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.)
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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).
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of the main plaza and located at the mouth of a large road on which

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many park patrons’ cars are parked); Id., Exs. HH, JJ (showing park

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patrons in the area).)

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Plaintiffs’ facts “clearly show” that their First Amendment

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interests would be immediately and irreparably harmed absent a TRO.

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Fed. R. Civ. P. 65(b)(1).9

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The Court therefore cannot yet say that

The Court therefore DENIES the Application for a TRO.

In the

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interest of economy, the Court will not require Plaintiffs to

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submit a separate noticed motion, but GRANTS Plaintiffs’ request

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for an Order to Show Cause.

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set the hearing on the order to show cause without regard to the

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twenty-eight (28) days notice of motion requirement of L.R. 6-1.”

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L.R. 65-1.

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this matter.

“If the TRO is denied, the Court may

The Court will issue a separate Order to Show Cause in

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IT IS SO ORDERED.

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Dated: March 6, 2015
DEAN D. PREGERSON
United States District Judge

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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.
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