Minahan et al v. City of Fort Myers, Florida et al
Filing
35
OPINION AND ORDER granting in part and denying in part 4 Plaintiffs' Motion for Preliminary Injunction. Defendants are preliminarily enjoined and restrained from enforcing against Plaintiffs Section 86-2, Subpart A of Chapter 86 of the Code of Ordinances of the City of Fort Myers to the extent that it prohibits conduct tending to hinder or impede the free and uninterrupted passage of vehicles, traffic or pedestrians. Plaintiffs shall post a bond in the amount of $100, as payment of damages to which Defendants may be entitled for wrongful injunction or restraint. See Opinion and Order for details. Signed by Judge John E. Steele on 12/16/2014. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JUDITH MINAHAN
O’CONNELL,
and
JOANN
Plaintiffs,
v.
Case No: 2:14-cv-629-FtM-29DNF
CITY OF FORT MYERS, FLORIDA
and DAVID CONTICELLI, Fort
Myers Police Officer, in his
personal
and
official
capacities,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiffs' Motion for
Preliminary
Injunction
(Doc.
#4)
filed
on
October
29,
2014.
Defendants filed a Response (Doc. #27) on December 2, 2014 and the
Court heard oral argument on December 9, 2014.
For the reasons
set forth below, the motion is granted in part and denied in part.
I.
Plaintiffs,
two
“volunteer
pro-life
advocates,”
seek
a
preliminary injunction enjoining Defendants the City of Fort Myers
Florida (the City) and Fort Myers Police Office David Conticelli
(Officer Conticelli) from enforcing Section 86-2, Subpart A of
Chapter 86 of the Code of Ordinances of the City of Fort Myers
(the Ordinance) against them and those similarly-situated.
In
general terms, the Ordinance prohibits loitering that obstructs,
or tends to obstruct, vehicular or pedestrian traffic.
Plaintiffs
allege that Defendants’ threatened enforcement of the Ordinance
against them adversely impacts their ability to peacefully pray,
counsel, and distribute literature on the public sidewalk outside
of the Fort Myers Women’s Health Center (the Health Center).
On
October
2,
2014,
Officer
Conticelli
responded
to
a
complaint from the property manager for the commercial building
complex that houses the Health Center.
According to Officer
Conticelli, the property manager complained that Plaintiffs were
creating a safety hazard by obstructing vehicles attempting to
enter and exit the complex’s parking lot.
(Doc. #27-2.)
After
speaking with the property manager regarding his concerns, Officer
Conticelli then spoke with Plaintiffs outside the Health Center.
(Id.)
Officer Conticelli informed Plaintiffs of the property
manager’s complaints and read them a copy of the Ordinance.
it relates to loitering, the Ordinance provides:
(a)
Definitions.
The following words, terms and phrases, when used in
this section, shall have the meanings ascribed to them
in this subsection, except where the context clearly
indicates a different meaning:
. . .
Loitering means remaining idle in essentially one
location and shall include the concept of spending time
idly, to be dilatory, to linger, to stay, to saunter, to
delay, or to stand around, and shall also include the
colloquial expression “hanging around.”
. . .
Public place means any place to which the general public
has access and a right to resort for business,
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As
entertainment, or other lawful purpose, but does not
necessarily mean a place devoted solely to the uses of
the public. It shall also include the front or immediate
area of any store, shop, restaurant, tavern or other
place of business and also public grounds, areas or
parks.
(b) Loitering acts prohibited.
(1) It shall be unlawful for any person to loiter,
loaf, wander, cruise in a motor vehicle, stand or remain
idle, either alone and/or in consort with others, in a
public place in such manner so as to:
a. Obstruct or hinder the movement of traffic on any
public street, public highway, public sidewalk, or
any other public place or building by hindering or
impeding, or tending to hinder or impede, the free
and uninterrupted passage of vehicles, traffic or
pedestrians.
b. Commit, in or upon any public street, public highway,
public sidewalk or any other public place or
building, any act or thing which is an obstruction
or interference to the free and uninterrupted use of
property or with any business lawfully conducted by
anyone in or upon or facing or fronting on any such
public street, public highway, public sidewalk or any
other public place or building, all of which prevents
the free and uninterrupted ingress, egress and
regress therein, thereon, and thereto.
. . .
(c) Duty of police.
When any person causes or commits any of the conditions
enumerated in this section, any law enforcement officer
shall order that person to stop causing or committing
such conditions, and to move on or disperse. Any person
who fails or refuses to obey such orders shall be guilty
of a violation of this section.
. . .
(e) Violations; penalties.
Any person who violates any of the provisions of this
section shall be subject to a fine of not less than
- 3 -
$25.00, and not exceeding $250.00. Any such violation
shall constitute a separate offense.
(Doc. #27-1.)
After reading the Ordinance, Officer Conticelli explained
that, based on his brief observation of their activities as he
arrived at the complex, Plaintiffs appeared to be obstructing
vehicles from entering and exiting the property.
approximately
30
minutes,
Plaintiffs
and
Officer
(Id.)1
For
Conticelli
discussed the nuances of the Ordinance and Officer Conticelli
endeavored to provide Plaintiffs with instructions as to how they
could continue to “get their message out” while complying with the
Ordinance.
(Doc. #27-2, Ex. A.)
Plaintiffs’ chief quarrel with
Officer Conticelli’s instructions is that they were told (1) that
they would violate the Ordinance unless they “kept moving,” and
(2) that they could not approach any vehicles entering or leaving
the complex.
(Doc. #4, pp. 4-5.)
While Plaintiffs are correct that Officer Conticelli did
instruct Plaintiffs that they must “keep moving,” based upon the
context of the video it appears that he was instructing Plaintiffs
that one way in which they could engage with a passerby without
obstructing
pedestrian
traffic
(and
1
thereby
violating
the
In addition to Officer Conticelli’s affidavit setting forth his
recollection of the events, Defendants have also provided a DVD
containing
the
video
and
audio
of
Officer
Conticelli’s
conversation as recorded by the dashboard camera in his patrol
car. (Doc. #27-2, Ex. A.)
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Ordinance) was to engage with the passerby while moving down the
sidewalk.
(Doc. #27-2, Ex. A.)
It does not appear that Officer
Conticelli intended to instruct Plaintiffs that a mere lack of
movement, absent an obstruction, would violate the Ordinance.
(Id.)
If this was his intent, the City made clear at oral argument
that the mere lack of movement, without an obstruction, would not
violate the Ordinance.
Likewise, the recording of the encounter does not show Officer
Conticelli instructing Plaintiffs that they could not engage with
individuals in vehicles who were willing to speak to them.
(Id.)
Instead, he explained that they could not block the path of
vehicles, flag them down, or otherwise approach them in a manner
that would prevent the driver of the vehicle from declining to
engage with Plaintiffs and continuing to drive into and/or out of
the complex.
(Id.)
While Officer Conticelli and Plaintiffs
disagreed as to whether or not the activities he observed did in
fact obstruct vehicular traffic, Officer Conticelli was clear that
his concern was with obstruction, not mere engagement.
Following
this
discussion,
Officer
Conticelli
(Id.)
left
the
property without issuing any warnings or citations for violating
the Ordinance.
interactions
(Id. at ¶ 10.)
between
There have been no subsequent
Plaintiffs
and
the
Fort
Myers
Police
Department, and Plaintiffs acknowledge that they have continued
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their activities outside of the Health Center, albeit in what they
assert has been a more cautious and limited manner.
On October 28, 2014, Plaintiffs filed a five-count Complaint
(Doc. #1) alleging that the Ordinance (and Defendants’ threatened
enforcement of the Ordinance) violates their constitutional rights
to freedom of speech, freedom of assembly and association, freedom
of religious exercise, and due process.
Plaintiffs also allege
that the City is liable for its failure to adequately train,
supervise, and/or control its police officers.
(Id.)
As relief,
Plaintiffs seek an order declaring (1) that the Ordinance is
unconstitutional (either on its face or as applied to Plaintiffs);
(2) that the City has a employed an unconstitutional policy or
custom of depriving Plaintiffs and similarly-situated individuals
of their constitutional rights; and (3) that the City’s failure to
train,
supervise,
or
control
its
police
Plaintiffs of their constitutional rights.
officers
(Id.)
deprived
Plaintiffs also
seek a permanent injunction requiring the City to refrain from
enforcing
the
Ordinance
and/or
any
other
unconstitutional
restriction of Plaintiffs’ constitutional rights.
seek
an
equivalent
preliminary
injunction
Plaintiffs now
allowing
them
to
maintain their activities outside the Health Center unimpeded
pending the outcome of the case.
- 6 -
II.
A federal court has inherent authority to issue an injunction
to remedy a violation of constitutional rights.
Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004).
“The
purpose of the preliminary injunction is to preserve the positions
of the parties as best we can until a trial on the merits may be
held.”
Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).
In order to obtain a preliminary injunction, the movant must
demonstrate “(1) a substantial likelihood of success on the merits
of the underlying case, (2) the movant will suffer irreparable
harm in the absence of an injunction, (3) the harm suffered by the
movant in the absence of an injunction would exceed the harm
suffered by the opposing party if the injunction is issued, and
(4)
an
injunction
would
not
disserve
the
public
interest.”
Odebrecht Constr. v. Sec’y, Fla. DOT, 715 F.3d 1268, 1273-74 (11th
Cir. 2013).
drastic
“[A] preliminary injunction is an extraordinary and
remedy
not
to
be
granted
unless
the
movant
clearly
establishes ‘the burden of persuasion’ as to each of the four
prerequisites.”
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.
2000) (quoting All Care Nursing Serv., Inc. v. Bethesda Mem’l
Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)).
A.
A Substantial Likelihood of Success on the Merits
The First Amendment to the U.S. Constitution provides in
pertinent part that “Congress shall make no law . . . abridging
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the freedom of speech . . . or the right of the people peaceably
to assemble and to petition the Government for a redress of
grievances.”
U.S. Const. amend. I.
The Supreme Court has long
held that the First Amendment applies to the States through the
Fourteenth Amendment.
Vincent, 466
U.S.
Members of City Council v. Taxpayers for
789,
792
n.2
(1984)
(citing Lovell
v.
Griffin, 303 U.S. 444, 450 (1938) (“Freedom of speech and freedom
of the press, which are protected by the First Amendment from
infringement
rights
and
by
Congress,
liberties
are
which
among
are
the
fundamental
protected
Amendment from invasion by state action.”)).
by
the
personal
Fourteenth
Likewise, “municipal
ordinances adopted under state authority constitute state action
and
are
within
the
prohibition
of
the
[First]
[A]mendment.”
Lovell, 303 U.S. at 450.
The parties agree that the First Amendment applies to the
Ordinance.
It
is
also
undisputed
that
that
the
sidewalk
counseling, prayer, and distribution of literature performed by
Plaintiffs constitute speech protected by the First Amendment.
See Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) (“Speech on
matters of public concern is at the heart of the First Amendment’s
protection.”); McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014)
(public streets and sidewalks are prototypical examples of public
fora which “occupy a special position in terms of First Amendment
- 8 -
protection because of their historic role as sites for discussion
and debate”).
It is also well settled that the First Amendment protection
of speech and assembly is not absolute.
Thus, while the First
Amendment applies to the City's conduct, a city government “need
not permit all forms of speech on property that it owns and
controls.”
International Soc’y for Krishna Consciousness v. Lee,
505 U.S. 672, 678 (1992).
Amendment
is
“subject
Rather, conduct protected by the First
to
reasonable
time,
place,
or
manner
restrictions that are consistent with the standards announced in
this
Court's
precedents.”
Snyder, 131
S.
Ct.
at
1218.
Accordingly, what remains is an inquiry into whether the Ordinance
is
a
permissible
rights.
restriction
Plaintiffs’
First
Amendment
Plaintiffs assert five bases for their argument that the
Ordinance is impermissible.
1.
on
The Court will address each in turn.
Whether The Ordinance Is Void For Vagueness
An ordinance is void on its face if it is so vague that
persons “of common intelligence must necessarily guess at its
meaning and differ as to its application.” Connally v. Gen. Constr.
Co., 269 U.S. 385, 391 (1926).
A plaintiff asserting that a
statute is void for vagueness must show either: (1) the statute
fails to give fair notice of wrongdoing; or (2) the statute lacks
enforcement standards such that it might lead to arbitrary or
discriminatory enforcement.
Grayned v. City of Rockford, 408 U.S.
- 9 -
104, 108–09 (1972).
“[T]he Constitution demands a high level of
clarity from a law if it threatens to inhibit the exercise of a
constitutionally protected right, such as the right of free speech
or religion.”
Cir. 2005).
Konikov v. Orange Cnty., 410 F.3d 1317, 1329 (11th
When bringing a facial challenge to an ordinance for
vagueness, “a party who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied
to the conduct of others.”
Catron v. City of St. Petersburg, 658
F.3d 1260, 1271 (11th Cir. 2011) (quotations omitted).
“If
Plaintiffs' own conduct is clearly proscribed by the terms of the
ordinance,
this
vagueness.”
Id.
necessarily
precludes
a
finding
of
facial
On the other hand, if the conduct is not clearly
proscribed by the terms of the ordinance, the court “must decide
whether what the ordinance as a whole prohibits in the vast
majority of its intended applications is clear enough.” Id. at
1272 (quotations omitted).
Plaintiffs contend that the phrase “hindering or impeding, or
tending to hinder or impede, the free and uninterrupted passage of
vehicles,
traffic
or
pedestrians”
is
impermissibly
vague.
According to Plaintiffs, the fact that the Ordinance does not
specify how long the hindrance must last or the degree to which
passage must be obstructed constitutes a lack of enforcement
standards such that the Ordinance is subject to arbitrary or
discriminatory enforcement.
The Court agrees in part, but only
- 10 -
as to the portion of the Ordinance that prohibits behavior “tending
to hinder or impede” traffic.
In Shuttlesworth v. City of Birmingham, the Supreme Court
addressed a loitering ordinance which criminalized loitering that
obstructed the free passage of pedestrians on city streets and
sidewalks.
382 U.S. 87, 90-91 (1965).
While noting that such a
statute could be subject to as-applied constitutional challenges,
the
Supreme
Court
unconstitutional.
held
Id.
that
ordinance
was
not
facially
Accordingly, Shuttlesworth forecloses
Plaintiffs’ argument that a loitering ordinance lacks sufficient
enforcement standards if it requires only that officers determine
that the loiterer is obstructing the free passage of pedestrians.
The ordinance in Shuttlesworth, however, addressed actual
obstructions only, while the Ordinance here also prohibits conduct
“tending to” obstruct the free flow of traffic.
previously
held,
the
phrase
“behavior
As this Court has
tending
to”
has
no
established meaning, and is not comprehensible to persons of
ordinary intelligence.
Occupy Fort Myers v. City of Fort Myers,
882 F. Supp. 2d 1320, 1338 (M.D. Fla. 2011).
This is true even
where, as here, the object of the phrase is not vague.
Id.
(holding that the phrase “behavior tending to breach of the peace”
was vague even though the phrase “breach of the public peace” was
not).
Accordingly, the Court finds that Plaintiffs are likely to
succeed on their vagueness challenge only as to the portion of the
- 11 -
Ordinance prohibiting conduct “tending to hinder or impede[] the
free
and
uninterrupted
passage
of
vehicles,
traffic
or
pedestrians.”
2.
Whether The Ordinance Is Void For Overbreadth
Typically,
a
plaintiff
making
a
facial
challenge
to
an
ordinance must establish that no set of circumstances exists under
which the ordinance would be valid.
U.S. 739, 745 (1987).
a
narrow
exception
United States v. Salerno, 481
“However, the Supreme Court has carved out
to
this
rule
in
what
is
known
as
the
‘overbreadth doctrine,’ which allows a litigant to assert a facial
challenge to a statute because it could compromise the First
Amendment rights of parties not before the Court.”
DA Mortg.,
Inc. v. City of Miami Beach, 486 F.3d 1254, 1269 (11th Cir. 2007).
The rationale behind the exception, which is reserved for cases
involving restrictions on the right to free speech, “is that the
very existence of some broadly written laws has the potential to
chill the expressive activity of others not before the court.”
DA
Mortg., 486 F.3d at 1269 (11th Cir. 2007) (quoting Forsyth Cnty.
v. Nationalist Movement, 505 U.S. 123, 129 (1992).
Where, as here, an ordinance addresses conduct and not merely
speech, a statute will not be overturned unless the overbreadth is
“not only [] real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep.”
799-800.
Vincent, 466 U.S. at
“In short, there must be a realistic danger that the
- 12 -
statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court for it to be
facially challenged on overbreadth grounds.”
Id. at 801.
“The
mere fact that one can conceive of some impermissible applications
of a statute is not sufficient to render it susceptible to an
overbreadth challenge.” United States v. Williams, 553 U.S. 285,
303 (2008) (citation omitted).
As explained above, the Court has already concluded that the
portion of the Ordinance prohibiting conduct “tending to hinder or
impede[] the free and uninterrupted passage of vehicles, traffic
or
pedestrians”
Ordinance
is
void
functionally
Shuttlesworth,
constitutional.
which
the
for
vagueness.
identical
Supreme
What
the
to
Court
remains
ordinance
found
382 U.S. 87, 90-91 (1965).
to
be
is
an
in
facially
Moreover, Plaintiffs
have not identified any protected conduct that the Ordinance
prohibits, let alone an amount substantial enough to prevail on an
overbreadth challenge.
Plaintiffs
are
unlikely
Accordingly, the Court concludes that
to
prevail
on
their
claim
that
the
Ordinance, to the extent is it is not void for vagueness, is
unconstitutionally overbroad.
3.
Whether The Ordinance Is Unconstitutional As Applied To
Plaintiffs
Plaintiffs argue that the Ordinance is unconstitutional as
applied to them because it is a content-based restriction on their
First Amendment rights absent a compelling government interest.
- 13 -
Plaintiffs also argue that the Ordinance fails the less-stringent
test applied to content-neutral restrictions because the Ordinance
does
not
provide
the
requisite
alternative
communication for their prohibited speech.
channels
of
Defendants respond
that Plaintiffs do not have standing to bring an as-applied
challenge because they have not been cited for violating the
Ordinance nor has their speech been chilled by the threat of
enforcement.
In
the
alternative,
Defendants
argue
that
the
Ordinance is content-neutral, is narrowly tailored to achieve a
significant government interest, and leaves open ample alternative
channels of communication.
a. Standing
“Under Article III of the Constitution, federal courts may
adjudicate only actual, ongoing cases or controversies.”
v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990).
Lewis
“[T]he core
component of standing is an essential and unchanging part of the
case-or-controversy
requirement
of
Article
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
III.”
Lujan
v.
“A plaintiff who
invokes the jurisdiction of a federal court bears the burden of
showing (1) an injury in fact, meaning an injury that is concrete
and particularized, and actual or imminent, (2) a causal connection
between the injury and the causal conduct, and (3) a likelihood
that the injury will be redressed by a favorable decision.”
KH
Outdoor, L.L.C. v. Clay Cnty., 482 F.3d 1299, 1303 (11th Cir. 2007)
- 14 -
(quotation omitted).
“Each element is an indispensable part of
the plaintiff's case and must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof . .
. .”
Id. (quoting Lujan, 504 U.S. at 561).
Defendants argue that Plaintiffs cannot satisfy the injury-
in-fact requirement because Officer Conticelli neither cited nor
threatened to cite Plaintiffs for violating the Ordinance, and
Plaintiffs
have
since
continued
Health Center unimpeded.
their
activities
outside
the
Plaintiffs argue that they have been
injured because, out of fear of arrest, they now refrain from
constitutionally-protected activities such as approaching vehicles
to distribute pamphlets.
The injury-in-fact requirement is applied “most loosely where
First Amendment rights are involved, lest free speech be chilled
even before the law or regulation is enforced.”
Wollschlaeger v.
Governor of Fla., 760 F.3d 1195, 1209 (11th Cir. 2014) (citation
omitted).
standing
Self-censorship is a cognizable injury-in-fact for
purposes
provided
Plaintiffs
“that, as
demonstrate
a
result of their desired expression, (1) they were threatened with
prosecution; (2) prosecution is likely; or (3) there is a credible
threat of prosecution.”
Id. (quotation omitted).
“To establish
that there is a credible threat of prosecution, Plaintiffs must
demonstrate:
first,
that
they
seriously
wish
to
engage
in
expression that is at least arguably forbidden by the pertinent
- 15 -
law, and second, that there is at least some minimal probability
that the challenged rules will be enforced if violated.”
Id. at
1210 (internal citation and quotation omitted).
The
Court
concludes
that
the
Ordinance
arguably
forbids
Plaintiffs from approaching vehicles to distribute pamphlets in
the
manner
observed
by
Officer
Conticelli,
that
Plaintiffs
seriously wish to engage in such activity (Doc. #30-1, ¶ 3), and
that,
as
evidenced
by
Officer
Conticelli’s
discussion
with
Plaintiffs in response to the property manager’s complaint, there
exists at least a minimal probability that that the Ordinance will
be enforced if violated.
Accordingly, the Court finds that
Plaintiffs have standing to bring their as-applied challenge to
the Ordinance.
b. Merits
On its terms, the Ordinance is content-neutral because it
does not “require[] enforcement authorities to examine the content
of the message that is conveyed to determine whether a violation
has occurred.”
McCullen, 134 S. Ct. at 2531 (quoting FCC v. League
of Women Voters, 468 U.S. 364, 383 (1984)).
To the contrary, the
Ordinance applies to an individual’s conduct only, irrespective of
whether the individual is also engaged in speech.
Plaintiffs
explicitly
because
it
contend
restrict
has
the
that
speech,
while
the
Ordinance
does
not
it
is
nevertheless
content-based
potential
to
be
only
- 16 -
enforced
against
individuals
disagrees.
who
are
expressing
messages
with
which
the
City
In support of this argument, Plaintiffs point to the
fact that, in 2004, they successfully challenged a City ordinance
which required Plaintiffs to obtain a permit before conducting
their activities outside the Health Center.
Minahan v. City of
Fort Myers, No. 04-CV-551, Doc. #33 (M.D. Fla. Dec. 21, 2004).
According to Plaintiffs, this is evidence of the City’s selective
enforcement of ordinances against individuals expressing certain
messages.
The Court disagrees.
According to Officer Conticelli, he spoke with Plaintiffs in
response to a complaint from the property manager for the complex
housing the Health Center (Doc. #27-2), and Plaintiffs have not
provided
any
enforcement.
evidence
of
Indeed,
the
an
ulterior
recording
motive
of
Officer
or
selective
Conticelli’s
conversation with Plaintiffs demonstrates that he was entirely
unaware of the 2004 lawsuit concerning the permit ordinance.
Moreover, Officer Conticelli repeatedly explained to Plaintiffs
the various ways they could continue their activities outside the
Health
Center
within
the
bounds
of
the
Ordinance.
(Id.)
Accordingly, the Court continues to conclude that the Ordinance is
content-neutral as applied to Plaintiffs.
Content-neutral ordinances “must be narrowly tailored to
serve a significant governmental interest.”
at 2534.
McCullen, 134 S. Ct.
Where, as here, a content-neutral ordinance restricts
- 17 -
the time, place, or manner of speech, “the requirement of narrow
tailoring is satisfied so long as the regulation promotes a
substantial
government
interest
that
effectively absent the regulation.”
would
be
achieved
less
Ward v. Rock Against Racism,
491 U.S. 781, 799 (1989) (quotation omitted).
This “does not mean
that a time, place, or manner regulation may burden substantially
more
speech
than
is
necessary
legitimate interests.”
to
Id. at 799.
further
the
government's
However, “[s]o long as the
means chosen are not substantially broader than necessary to
achieve the government's interest . . . the regulation will not be
invalid simply because a court concludes that the government's
interest
could
be
adequately
restrictive alternative.”
served
Id. at 800.
by
some
less-speech-
To determine whether a
regulation is substantially broader than necessary, courts assess
whether the regulation “leaves open ample alternative channels of
communication.”
DA Mortgage, 486 F.3d at 1267.
“[E]nsuring public safety and order, promoting the free flow
of traffic on streets and sidewalks, [and] protecting property
rights”
McCullen
are
134
legitimate
S.
Ct.
at
and
significant
2535
(quoting
Network, 519 U.S. 357, 376, (1997)).
government
Schenck
v.
interests.
Pro–Choice
As limited by the Court as
set forth above, the Ordinance applies only to loitering that
“hinder[s] or imped[es] . . . the free and uninterrupted passage
of vehicles, traffic or pedestrians.”
- 18 -
Plaintiffs argue that
Officer Conticelli’s interpretation of the Ordinance prohibits
conduct even if it does not hinder or impede traffic.
While
Officer Conticelli’s description of his interpretation may not
have been a model of clarity, the Court concludes that he did not
intend to instruct Plaintiffs that they would violate the Ordinance
absent an obstruction.
Additionally, at oral argument the City
confirmed that its “official” interpretation of the Ordinance is
that a violation does not occur unless pedestrian or vehicular
traffic is obstructed.
As a result, the Court concludes that the
Ordinance promotes a substantial government interest.
The remaining question is whether, as applied to Plaintiffs,
the Ordinance is substantially broader than necessary to promote
the free flow of traffic on streets and sidewalks.
That is,
whether it leaves ample alternative channels for Plaintiffs to
exercise their First Amendment rights.
Plaintiffs argue that the Ordinance does not leave ample
alternative
channels
because
effectively
it
for
Plaintiffs
prevents
to
them
entering or leaving the Health Center.
express
from
their
addressing
message
anyone
This is not the case.
As
explained by Officer Conticelli, Plaintiffs are free to engage in
sidewalk counseling, prayer, and the distribution of pamphlets on
the public sidewalk outside the Health Center.
Likewise, they are
permitted to engage with pedestrians and with individuals in
vehicles.
The only restriction placed upon them is that they
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cannot do so in a way that hinders or impedes pedestrian or
vehicular traffic.
Thus, the Court concludes that the Ordinance’s
requirement that Plaintiffs step aside so that pedestrians who
choose not to engage with them can continue on their way, and its
prohibition against engaging with vehicles in such a way that those
vehicles prevent others from entering and/or exiting the complex,
are not substantially broader than necessary to promote the City’s
interest in the free flow of traffic on streets and sidewalks.
Accordingly, the Court finds that Plaintiffs are not likely to
succeed
on
the
merits
of
their
claim
that
the
Ordinance
is
unconstitutional as applied to them.
4.
Whether The City Has a Practice Or Policy Of Depriving
Plaintiffs Of Their Constitutional Rights
Plaintiffs allege that the City’s threatened enforcement of
the Ordinance is part of a practice or policy that deprives them
of their First Amendment rights in violation of 42 U.S.C. § 1983
(Section 1983).
Section 1983 imposes liability on anyone who,
under color of state law, deprives a person “of any rights,
privileges, or immunities secured by the Constitution and laws.”
To establish a claim under Section 1983 against a municipality
such
as
the
City,
Plaintiffs
must
prove
that
(1)
their
constitutional rights were violated; (2) the municipality had a
custom or policy that constituted deliberate indifference to their
constitutional rights, and (3) the policy or custom caused the
- 20 -
violation of their constitutional rights.
McDowell v. Brown, 392
F.3d 1283, 1289 (11th Cir. 2004).
As set forth above, the Court concludes that Plaintiffs are
unlikely to prevail on their as-applied challenge to the Ordinance.
The Court further concludes that Plaintiffs have not provided
sufficient evidence of a custom or policy constituting deliberate
indifference to their constitutional rights.
Any implication of
an impermissible policy which could be inferred from the City’s
enforcement of a different ordinance against Plaintiffs in the
past is heavily outweighed by the fact that Plaintiffs have
conducted their activities outside the Health Center unimpeded
during the ten years preceding the current dispute.
Moreover,
Officer Conticelli’s uncontradicted testimony states that he had
no
knowledge
of
the
City’s
history
with
Plaintiffs
responded to the property manager’s complaint.
11-15.)
when
he
(Doc. #27-2, ¶¶
Accordingly, the Court finds that Plaintiffs are unlikely
to prevail on the merits of their Section 1983 claim.
5.
Whether The Ordinance Violations Plaintiffs’
Freedom of Assembly and Association
Right
To
Plaintiffs also allege that the Ordinance unconstitutionally
restricts their First Amendment right to assemble and associate.
Plaintiffs do not raise any new legal arguments in this regard,
instead relying on the “close nexus between the freedoms of speech
and assembly,” NAACP v. Alabama, 357 U.S. 449, 460 (1958), to argue
that to the extent the Ordinance violates their freedom of speech,
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it
also
violates
Accordingly,
their
Plaintiffs’
freedom
freedom
of
assembly
of
and
assembly
association.
and
association
claims do not require separate analysis for the purposes of this
motion.
B.
Irreparable Injury
“A showing of irreparable injury is the sine qua non of
injunctive relief.”
Siegel, 234 F.3d at 1176 (citation omitted).
“Regarding irreparable injury, it is well established that the
loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”
F.3d
at
1271–72
(quotation
omitted).
Thus,
KH Outdoor, 458
Plaintiffs
have
established the existence of an irreparable injury.
C.
Balance of the Injuries, Public Interest
Plaintiffs must also establish that the threatened injury to
them outweighs the harm a preliminary injunction may cause to the
defendant and that an injunction would not harm or do a disservice
to the public interest.
Siegel, 234 F.3d at 1176.
“[E]ven a
temporary infringement of First Amendment rights constitutes a
serious and substantial injury, and the city has no legitimate
interest in enforcing an unconstitutional ordinance. For similar
reasons, the injunction plainly is not adverse to the public
interest.
The
public
has
unconstitutional ordinance.”
no
interest
in
enforcing
KH Outdoor, 458 F.3d at 1272.
factors favor issuance of a preliminary injunction.
- 22 -
an
Both
D.
Bond Requirement
Plaintiffs assert that they should not be required to post a
bond because there are no foreseeable costs or damages likely to
be incurred should the Court issue an injunction.
Defendants have
not taken a position on the issue.
Rule 65(c) of the Federal Rules of Civil Procedure provides
that a court “may issue a preliminary injunction . . . only if the
movant gives security in an amount that the court considers proper
to pay the costs and damages sustained by any party found to have
been wrongfully enjoined or restrained.”
“[B]efore a court may
issue a preliminary injunction, a bond must be posted, but it is
well-established that “the amount of security required by the rule
is a matter within the discretion of the trial court and the court
may elect to require no security at all.”
BellSouth Telecomms.,
Inc. v. MCImetro Access Transmission Servs., LLC, 425 F.3d 964,
971 (11th Cir. 2005) (citations omitted).
Given the limited scope
of the preliminary injunction to be issued, the Court finds it
appropriate to require a nominal $100 bond to be posted.
Accordingly, it is hereby
ORDERED:
1.
Plaintiffs’ Motion for Preliminary Injunction (Doc. #4)
is GRANTED IN PART and DENIED IN PART.
2.
Defendants,
Defendants,
are
and
all
preliminarily
those
acting
enjoined
- 23 -
and
in
concert
with
restrained
from
enforcing against Plaintiffs and those similarly-situated Section
86-2, Subpart A of Chapter 86 of the Code of Ordinances of the
City of Fort Myers to the extent that it prohibits conduct “tending
to
hinder
or
impede[]
the
free
and
uninterrupted
passage
of
vehicles, traffic or pedestrians.”
3.
The motion is otherwise DENIED.
4.
Pursuant to Fed. R. Civ. P. 65(c), Plaintiffs shall post
a bond in the amount of $100, as payment of damages to which
Defendants may be entitled for wrongful injunction or restraint.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2014.
Copies:
Counsel of Record
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16th
day
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