Cuviello et al v. City and County of San Francisco et al

Filing 46

ORDER by Judge Edward M. Chen denying 9 Plaintiffs' Motion for Preliminary Injunction (emclc1, COURT STAFF) (Filed on 9/10/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH P. CUVIELLO, et al.,

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For the Northern District of California

United States District Court

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No. C-12-3034 EMC

Plaintiffs,
v.
CITY AND COUNTY OF SAN
FRANCISCO, et al.,

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ORDER DENYING PLAINTIFFS’
MOTION FOR PRELIMINARY
INJUNCTION
(Docket No. 9)

Defendants.
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Currently pending before the Court is Plaintiffs’ motion for a preliminary injunction, in

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which they ask the Court to enjoin enforcement of San Francisco Park Code § 7.08(d). For the

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reasons stated at the hearing on Plaintiffs’ motion, the Court hereby DENIES the request for

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preliminary injunctive relief.

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Most significantly, Plaintiffs have failed to establish that they have standing to seek

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injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (stating that “‘[past]

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exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive

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relief . . . if unaccompanied by any continuing present adverse effects’”). Although Plaintiffs could

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theoretically suffer an injury in the form of a chilling effect on their desire to engage in First

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Amendment activities, see Ward v. Utah, 321 F.3d 1263, 1267, 1269 (10th Cir. 2003), they have

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offered no concrete evidence that, absent § 7.08(d), they would actually engage in any such

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activities in any of the parks identified in § 7.08(d). There is no evidence, for example, that

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Ringling Brothers circus or another company that deals with animals is likely to hold another event

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in any of the parks identified in § 7.08(d). Furthermore, Plaintiffs have not offered evidence to

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support their claim that there is a credible threat of future prosecution. See id.; see Lyons, 461 U.S.

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at 105 (noting that there must be “a real and immediate threat” of repeat conduct by defendant or its

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agents); Laird v. Tatum, 408 U.S. 1, 13-14 (1972) (noting that “allegations of a subjective ‘chill’ are

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not an adequate substitute for a claim of specific present objective harm or a threat of specific future

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harm”). This is especially so given that both the San Francisco Department of Recreation and Parks

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and the San Francisco Police Department have stated that they will suspend enforcement of §

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7.08(d) while the ordinance repealing that section is pending before the Board of Supervisors and a

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decision on the ordinance is likely to be made within the next month or so.
This order disposes of Docket No. 9.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: September 10, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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