Hightower et al v. City and County of San Francisco et al
Filing
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ORDER by Judge Edward M. Chen denying 31 Plaintiffs' Application for Temporary Restraining Order (emclc1, COURT STAFF) (Filed on 3/21/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MITCH HIGHTOWER, et al.,
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For the Northern District of California
United States District Court
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No. C-12-5841 EMC
Plaintiffs,
v.
CITY AND COUNTY OF SAN
FRANCISCO, et al.,
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ORDER DENYING PLAINTIFFS’
APPLICATION FOR TEMPORARY
RESTRAINING ORDER
(Docket No. 31)
Defendants.
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___________________________________/
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Plaintiffs have filed an amended complaint and, in conjunction with that complaint, have
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filed an application for a temporary restraining order (“TRO”). The main relief sought by Plaintiffs
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is a TRO barring enforcement of San Francisco Police Code § 154. Plaintiffs’ request for a TRO is
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hereby DENIED. Plaintiffs simply filed an unverified amended complaint and a brief supporting
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the application. They did not submit any evidence to support their application and, thus, for that
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reason alone, denial is warranted.
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Moreover, even if the Court were to accept the allegations in the application or the amended
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complaint, many of those allegations are conclusory or lacking in sufficient details. For instance,
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Plaintiffs claim that, on February 1, 2013, a political rally was held on the steps of City Hall and that
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Plaintiffs either wrote political slogans on their bodies or carried political signs, but there is no
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additional information as to what those slogans or signs said or how § 154 interfered with their
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message. Cf. Bush v. City of San Diego, No. 10CV1188-LAB (RBB), 2010 U.S. Dist. LEXIS
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57922, at *5-6 (S.D. Cal. June 11, 2010) (noting that “nudity, by itself, [does not] communicate an
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intelligible message such that there [is no] First Amendment right to be naked”; adding that “the link
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between the [bike] riders’ nudity and their message is . . . attenuated”). As another example,
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Plaintiffs make reference to a biking event that took place on March 9, 2013, and assert that this
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event “traditionally takes place without a permit,” Mot. at 4, but there is no evidence whether the
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event was or was not.
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Furthermore, Plaintiffs’ application is lacking in any substantive legal argument in support.
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In particular, Plaintiffs’ contention that they are likely to succeed on the merits is largely conclusory.
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For example, in Plaintiffs’ claim of impermissible prior restraint, they simply assert that, because a
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political demonstration or rally could not be construed as a festival, parade, or fair – which could be
exempted under the ordinance so long as a permit is obtained – the ordinance cannot be a time,
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For the Northern District of California
United States District Court
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place, or manner restriction. But Plaintiffs have cited no authority to support the proposition that a
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restriction on speech cannot be evaluated as a time, place, and manner restriction simply because of
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the absence of a permit.
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For the foregoing reasons, the Court denies Plaintiffs’ request for a TRO barring enforcement
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of § 154. For the same reasons, the Court denies Plaintiffs’ request that it issue an order to show
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cause as to why a preliminary injunction barring enforcement of § 154 should not issue. This order
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is without prejudice to Plaintiffs’ ability to bring a properly noticed, briefed, and supported motion
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for preliminary injunction.
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Finally, to the extent Plaintiffs seek a TRO requiring compliance with California Penal Code
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§ 835.5, that request for relief is also denied. Even if the Court were to have supplemental
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jurisdiction over this state law claim and overlook the lack of evidentiary support, Plaintiffs are
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basically asking for an “obey-the-law” injunction. Such injunctions are generally disfavored. See
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EEOC v. Autozone, Inc., No. 12-1017, 2013 U.S. App. LEXIS 3311, at *38-39 (7th Cir. Feb. 15,
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2013). Moreover, the TRO language proposed by Plaintiffs is problematic because it fails to take
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into account that a custodial arrest may still be justified depending on the circumstances – e.g., if a
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person also commits a misdemeanor at the same time.
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This order disposes of Docket No. 31.
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IT IS SO ORDERED.
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Dated: March 21, 2013
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_________________________
EDWARD M. CHEN
United States District Judge
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For the Northern District of California
United States District Court
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