Juracek et al v. Detroit, City of et al

Filing 48

ORDER granting Plaintiffs' 34 Motion for Temporary Restraining Order. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES A. JURACEK and
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE, &
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW),
Plaintiffs,
Civil Action No. 13-CV-10190
Honorable Denise Page Hood

v.
CITY OF DETROIT, CITY OF DETROIT
POLICE DEPARTMENT and COBO
CENTER, Operated by DETROIT REGIONAL
CONVENTION FACILITY AUTHORITY,
Defendants.
_____________________________________/

ORDER GRANTING PLAINTIFFS’
MOTION FOR TEMPORARY RESTRAINING ORDER
On December 23, 2013, Plaintiffs James Juracek and the International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America (“UAW”) filed a two-count Amended Verified Complaint captioned
“count Amended Verified Complaint for a Temporary Restraining Order and Other
Relief” against the City of Detroit (the “City”), City of Detroit Police Department,
and Cobo Center. [Docket No. 30] Plaintiffs allege that the Defendants are liable
under 42 U.S.C. § 1983 for attempting to violate Plaintiffs’ First Amendment right
1

to Freedom of Speech by prohibiting Plaintiffs from displaying their signs on the
sidewalk on the west side of Washington Boulevard adjacent to the Cobo Center
during the 2014 Auto Show. Before the Court is Plaintiffs’ Motion for Temporary
Restraining Order. [Docket No. 34, filed December 23, 2013] Both Defendant
Cobo Center [Docket No. 42] and Defendant City of Detroit [Docket No. 43] filed
a response in opposition on January 8, 2014. Plaintiffs filed a reply on January 9,
2014. [Docket No. 45] For the reasons stated below, Plaintiffs’ Motion for
Temporary Restraining Order is GRANTED.
I.

BACKGROUND
Nissan North America, Inc. (“Nissan”) operates an automobile assembly

plant in Canton, Mississippi. [Verified Compl. ¶9; Amended Verified Compl.
¶10] Workers at the Canton plant have sought an agreement with Nissan on an
election process where the workers can vote on whether to form a union. [Verified
Compl. ¶9; Amended Verified Compl. ¶10] The UAW has assisted with these
efforts.

[Verified Compl. ¶9; Amended Verified Compl. ¶10]

Various

community groups in Mississippi have also joined the efforts. [Verified Compl.
¶10; Amended Verified Compl. ¶11]
Juracek, an UAW representative, was responsible for coordinating public
activities at the 2013 North American International Auto Show (the “Auto Show”).
2

The Auto Show is a yearly automobile exhibition show held at Cobo Center.
[Verified Compl. ¶8, 13; Amended Verified Compl. ¶9, ] Cobo Center is
located at 1 Washington Boulevard in Detroit, Michigan and is operated by the
Detroit Regional Convention Facility. [Verified Compl. ¶5; Amended Verified
Compl. ¶7]
On January 17, 2013, Plaintiffs filed a Motion for Temporary Restraining
Order. [Docket No. 5] The facts alleged in this motion are identical to those
alleged in Plaintiffs’ January 17, motion with little exception. In that Motion,
Plaintiffs stated that on January 7, 2013, Juracek and another UAW member met
with Auto Show Chief of Security Carl Berry and Cobo Center’s Manager of
Public Safety and Security Bruce Smith.

[Verified Compl. ¶14; Amended

Verified Compl. ¶15] During that meeting, Juracek informed Berry that UAW
members intended to display signs in relation to the dispute with Nissan at the
2013 Auto Show. [Verified Compl. ¶15; Amended Verified Compl. ¶16] Berry
indicated that signs could not be displayed inside Cobo Center but displaying signs
outside of Cobo Center was not his concern. [Verified Compl. ¶15; Amended
Verified Compl. ¶16]
On January 14, 2013, Juracek and 15 others displayed signs at various points
on the sidewalks adjacent to the Cobo Center, on the west side of Washington

3

Boulevard. [Verified Compl. ¶16; Amended Verified Compl. ¶17] The signs
were held by hand and displayed at chest level and those holding signs stood still.
[Verified Compl. ¶17; Amended Verified Compl. ¶18]

The signs were

approximately 26 inches wide and 40 inches high and displayed the name and
photograph of an employee at the Nissan facility in Canton, Mississippi with the
words “Nissan Technician, Mississippi, Threatened by Nissan.” [Verified Compl.
¶18; Amended Verified Compl. ¶19]
Shortly after Juracek and others began displaying the signs, Detroit Police
Department officers told Juracek that the signs could not be displayed on the west
side of Washington Boulevard because Cobo Center had advised them that its
property extended to the edges of the streets surrounding the Center. [Verified
Compl. ¶19; Amended Verified Compl. ¶20] The officers informed the group
that they had to move to the east side of Washington Boulevard if they wanted to
continue displaying their signs.

[Verified Compl. ¶20; Amended Verified

Compl. ¶21] The group complied. [Verified Compl. ¶20; Amended Verified
Compl. ¶21]
Cobo Center Regional Vice President and General Manager Thom Connors
called Juracek later that day (January 14, 2013), and they scheduled a meeting to
be held on January 15, 2013, at the Cobo Center.

4

[Verified Compl. ¶21;

Amended Verified Compl. ¶22] Connors, Smith, and Berry, other Cobo Center
representatives, and two Detroit Police Officers, including Lt. U. Renee Hall met
with Juracek. [Verified Compl. ¶22; Amended Verified Compl. ¶23] During
this meeting, Connors indicated that the sidewalk space on the west of Washington
Boulevard was Cobo Center property and signs could not be displayed there.
[Verified Compl. ¶23; Amended Verified Compl. ¶24] Connors provided a
property survey, which showed that the sidewalk space on the west of Washington
Boulevard was in fact east of Cobo Center and a public sidewalk. [Verified
Compl. ¶24; Amended Verified Compl. ¶25] Lt. Hall noted that the display of
signs presented a safety concern, though he and the others in attendance failed to
cite any authority for his conclusion. [Verified Compl. ¶25; Amended Verified
Compl. ¶26]

On January 18, 2013, this Court entered an Order Granting

Plaintiffs’ Motion for Temporary Restraining Order [Docket No. 11], enjoining
Defendants “from prohibiting Plaintiffs from displaying placards on the west side
of Washington Boulevard” for fourteen days following entry of the Order.
In Plaintiffs’ Amended Complaint, Plaintiffs note that “Defendant Cobo
Center . . . advised Plaintiffs that it believes Plaintiffs’ January 17, 2013,
Complaint sought relief only in connection with the 2013 Auto Show.” [Amended
Verified Compl. ¶34] Based on this representation, Plaintiffs contend that they

5

“reasonably believe Defendants may interfere with [their] distribution of leaflets,
and display of signs, on the City sidewalk on the west side of Washington
Boulevard during the 2014 Auto Show.”

[Amended Verified Compl. ¶35]

Additionally, Plaintiffs apprise the Court that beyond the allowance of the Court’s
January 18, 2013, Order, Plaintiffs intend to “distribute leaflets and display signs
on the exterior sidewalk and plaza areas between the City sidewalks and the Cobo
Center Building.”

[Amended Verified Compl. ¶36]

Plaintiffs state that

Defendant Cobo Center believes these areas “are its property” and “will seek to
prohibit Plaintiffs from engaging in such activity at the 2014 Auto Show.”
Plaintiffs request that this Court “issue a Temporary Restraining Order barring
Defendants from prohibiting Plaintiffs from holding placards and leafleting on the
sidewalk on the west side of Washington Boulevard adjacent to the Cobo Center
and on the exterior public plazas and sidewalks between the City sidewalk and the
Cobo Center building.” [Pl. Mot. at 25]
It is apparent that all parties agree that the sidewalk on the west side of
Washington Boulevard adjacent to the Cobo Center is a “public forum,” therefore,
by its nature, granting Plaintiffs freedom to exercise their First Amendment rights.
For this reason, the Court will address only the contested areas, the exterior public
plazas and sidewalks between the City sidewalk and the Cobo Center building

6

stairways leading up to the entry door, for purposes of this motion. The Court
notes that the ordinance Defendants rely on in this case states the following:
Any and all Demonstration Activities must be conducted
outside of the Cobo Center on public property so as not
to obstruct or interfere with traffic flow, entrances, exits,
access to Cobo Center for the Authority, its employees,
agents, permittees, licensees, vendors, contractors, Cobo
Center security, law enforcement, fire department
representatives, or any other invitees of the Authority
(the “Authority’s Invitees”) or cause or create safety
issues or concerns, unless otherwise specifically
authorized in writing by the Authority.
[Def. Ex. E]. Demonstration Activities are defined as “any or all of picketing,
leafleting, and/or demonstrations.” [Def. Ex. E].
II.

ANALYSIS
Federal Rule of Civil Procedure 65(b) allows the Court to issue a temporary

restraining order if the following circumstances are met:
(A) specific facts shown by affidavit or by a verified
complaint clearly show that immediate and irreparable
injury, loss, or damage will result to the movant before
the adverse party can be heard in opposition;
(B) the movant’s attorney certifies to the court in
writing any efforts made to give the notice and the
reasons why it should not be required.
Fed. R. Civ. P. 65(b). Rule 65(b) is clear that the possibly drastic consequences of
a restraining order mandate careful consideration by a trial court faced with such a

7

request. 1966 Advisory Committee Note to 65(b). Before a court may issue a
temporary restraining order, it should be assured that the movant has produced
compelling evidence of irreparable and imminent injury and has exhausted
reasonable efforts to give the adverse party notice.1 Fuentes v. Shevin, 407 U.S. 67
(1972); Boddie v. Connecticut, 401 U.S. 371 (1971); Sniadach v. Family Finance
Corp., 339 U.S. 337 (1969); 11 Wright & Miller, Federal Practice and Procedure §
2951, at 504–06 (1973). Other factors such as the likelihood of success on the
merits, the harm to the non-moving party and the public interest may also be
considered. Workman v. Bredesen, 486 F.3d 896, 904–05 (6th Cir. 2007); 11
Wright & Miller at § 2951, at 507–08.
On January 18, 2013, this Court entered an Order Granting Plaintiffs’ prior
Motion for Temporary Restraining Order, regarding the 2013 Auto Show. [Docket
The Court must note the unique procedural history in this case, as it relates to the
instant Motion for Temporary Restraining Order. On December 16, 2013, the
Court held a status conference with all parties in this case. At that conference,
Plaintiffs notified the Court of their concern regarding their plan to exercise their
First Amendment rights at the 2014 Auto Show. Defendants expressed their
opinion that the temporary restraining order granted by this Court on January 18,
2013, did not extend to the 2014 Auto Show because the time of effect had
elapsed. On December 19, 2013, the Court issued an order captioned “Order
Regarding Various Dates” which granted Plaintiffs leave to file an Amended
Complaint as well as a new Motion for Temporary Restraining Order. [Docket
No. 19] This Order also granted Defendants leave to file a response to Plaintiffs’
motion and provided Plaintiffs the opportunity to reply to any response Defendants
filed. Though the Court is satisfied that the nature of this motion is one requesting
a temporary restraining order, the Court notes that in this instance, the issue was
fully briefed and all parties were given notice of the pendency of this motion.
1

8

No. 11] In that order, the Court determined that Plaintiffs’ motion satisfied the
requirements necessary to issue a temporary restraining order. Specifically, the
Court determined that Plaintiffs made an adequate showing that they would be
“irreparably harmed absent a temporary restraining order” because they would “be
unable to display their signs or communicate their ideas to Auto Show attendees.”
[Order at 4] As to the likelihood of success on the merits, the Court determined
that “because the streets surrounding Cobo Center blend into the public sidewalk
and there appears to be no way to distinguish alleged private property from public
streets,” the public street and sidewalk surrounding Cobo Center is a “public
forum.”

[Order at 5] The Court addressed the requirements for granting a

temporary restraining order as they pertain to the facts and request discussed in the
instant motion below.
A. Likelihood of Success on the Merits
As to the likelihood of success on the merits, the Court is again convinced
that Plaintiffs are likely to demonstrate success on the merits.

The First

Amendment, applied to state and local governments through the Fourteenth
Amendment, prohibits the government from making any law that “abridge[s] the
freedom of speech.” U.S. Const. amend I; Parks v. City of Columbus, 395 F.3d
643, 647 (6th Cir. 2005).

The Court must ask itself three questions when

9

determining the constitutionality of a speech regulation: (1) whether the speech is
protected by the First Amendment; (2) the type of forum at issue and the standard
applied to that forum; and (3) whether the restriction satisfies the applicable
standard. Miller v. City of Cincinnati, 622 F.3d 524, 533 (6th Cir. 2010). Basic in
our jurisprudence is the idea that public streets and sidewalks are public fora;
public “streets . . . have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.” Hague v. Comm. for
Indus. Org., 307 U.S. 496, 515 (1939); see also Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983).
It is apparent that the public street surrounding Cobo Center is a public
forum. Defendants do not object to Plaintiffs’ designation of the west side of
Washington Boulevard as a public forum and the Court again grants Plaintiffs the
opportunity to exercise their First Amendment rights in this area.

Though

Defendant Cobo Center does not dispute the labeling of “public forum” to that
space, Defendant argues that its “‘front porch,’ plaza area, and stairways leading
up to the entry doors is on Cobo Center property, not public sidewalks,” and are
“non-public fora.”

10

The Court notes, as it did in its January 18, 2013, Order, that the area
surrounding Cobo Center blends into the public sidewalk and there appears to be
no way to distinguish alleged private property from public streets. This “blending”
includes the plaza area as well as the stairway. Defendants have not provided the
Court with any documentation to show a demarcation that sets these areas apart
from the public sidewalk. See United Church of Christ v. Gateway Econ. Dev.
Corp. of Greater Cleveland, Inc., 383 F.3d 449, 452 (6th Cir. 2004) (finding that
the privately owned sidewalk surrounding a church was a public forum when the
sidewalk “blend[ed] into the urban grid, borders the road, and looks just like any
public sidewalk” and was public thoroughfare.). For these reasons, the Court is
satisfied that the plaza area is a “public forum” for purposes of First-Amendment
protection. The Court is also satisfied that the stairway, though connected and
leading directly into the Cobo Center, is a “public forum” as related to Plaintiffs’
ability to exercise their First Amendment rights in this area.
A content-based regulation on speech in a traditional public forum must pass
strict scrutiny and will be invalidated unless the government is able to show that
the regulation is necessary to satisfy a compelling interest and is narrowly tailored
to meet that interest. Perry, 460 U.S. at 45; Cornelius v. NAACP Legal Defense
Fund & Educ. Fund, Inc., 473 U.S. 788, 800 (1985). Content-neutral regulations,

11

which regulate the time, place, and manner of speech, are appropriate if they are
narrowly tailored to achieve a significant government interest and leave open
alternative channels of communication. Id. It appears that the regulation in this
case is content-neutral as the Court has no reason to believe that Plaintiffs are the
only citizens required to comply.

However, the Court is not convinced that

Defendants’ proposed regulation of the space “leave[s] open alternative channels
of communication” or is “narrowly tailored to achieve a significant government
interest.”
Assuming, arguendo, that the plaza area and stairways leading to the entry
doors are not “public fora” for First Amendment purposes, the Court is still
unpersuaded that Defendants’ proposed restrictions are reasonable.

Although

“[c]ontent-based restrictions on speech in public and designated public fora are
subject to strict scrutiny,” Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir. 2007)—a
test that does not apply here—“[t]he government may lawfully restrict speech in a
nonpublic forum so long as the restrictions are viewpoint neutral and reasonable in
light of the purpose served by the forum.” Id. at 257 (emphasis added). For rules
that restrict speech in nonpublic fora, the Court “appl[ies] the traditional timeplace-and-manner test to the regulation.” Jobe v. City of Catlettsburg, 409 F.3d
261, 267 (6th Cir. 2005) (citing Members of City Council of Los Angeles v.

12

Taxpayers for Vincent, 466 U.S. 789, 808, 815 (1984)).

“To qualify as a

reasonable time-place-and-manner regulation of speech, the [restriction] must (1)
be content-neutral, (2) serve a significant government interest, (3) be narrowly
tailored to serve that government interest and (4) leave open ample alternative
channels of communication.” Id. The Court again notes its determination that
Defendants’ restriction is content-neutral. However, the Court is not satisfied that
the restriction⎯though possibly serving a government interest which the Court
views as public safety⎯is “narrowly tailored” to serve that government interest and
leaves open ample alternative channels of communication. This factor weighs in
favor of granting Plaintiffs’ motion.
B. Irreparable Harm
It is well established that a plaintiff’s harm is not irreparable if it is fully
compensable by money damages. Basicomputer Corp. v. Scott, 973 F.2d 507, 511
(6th Cir. 1992). An injury is not fully compensable by money damages, however, if
the nature of the plaintiff’s loss would make damages difficult to calculate. Id. at
511–12. “The loss of First Amendment freedoms, for even minimal periods of
time unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,
373 (1976); Newsome v. Norris, 888 F.3d 371, 378 (6th Cir. 1989).

Here,

Plaintiffs have made an adequate showing that they will be irreparably harmed

13

absent a temporary restraining order enjoining Defendants from preventing them
from holding placards and leafleting on the sidewalk on the west side of
Washington Boulevard adjacent to the Cobo Center and on the exterior public
plazas and sidewalks between the City sidewalk and the Cobo Center building.
This factor weighs in Plaintiffs’ favor.
C. Potential Harm to the Non-moving Party and Whether the Public
Interest is Served
When determining whether to grant a motion for preliminary injunction, the
Court must also consider whether issuance of an injunction will cause substantial
harm to others and whether the public interest is served by issuance of an
injunction. See Teamsters Local Union 299 v. U.S. Truck Co. Holdings, 87 F.
Supp. 2d 726, 733 n.2 (E.D. Mich. 2000) (citations omitted). Reviewing the
pleadings currently before the Court, the Court is satisfied that these factors also
weigh in Plaintiffs’ favor.

The Court has considered whether issuance of a

temporary restraining order will cause substantial harm to others, including the
non-moving party. The Court appreciates Defendant Cobo Center’s interest in
preventing a “potentially hazardous condition.”

The Court notes Defendants’

references to “shuttle busses dropping off at the curb, school busses, private
chauffeured transportation, public and private shuttles, taxi-drive-up, and valet
activities taking place in that area.” However, the Court is not convinced that these
14

activities rise to the level necessary to curb Plaintiffs’ rights, holding signs and
leafleting being “expressive activit[y] involving ‘speech’ protected by the First
Amendment.” United States v. Grace, 461 U.S. 171, 176 (1983). Defendants have
presented no evidence, and the Court finds none, that Plaintiffs’ activities would
“cause a serious safety issue due to congestion and vehicle movements.” For this
reason, this factor weighs in favor or granting Plaintiffs’ motion.
The Court is also satisfied that granting a temporary restraining will serve
the public interest. Plaintiffs are attempting to exercise their right to engage in
protected speech.

Public interest weighs in favor of Plaintiffs having the

opportunity to do so.
III.

CONCLUSION
In a letter dated January 6, 2014, Defendant City of Detroit stated that it

“had no intention of prohibiting demonstrations on the public sidewalks at this
year’s Auto Show . . . .” [Pl. Reply at Ex. 7] The Court recognizes that “[c]ertain
limitations might be appropriate if the demonstrators were to block ingress or
egress, create a dangerous condition or incite violence,” but as noted by the City,
there is no reason to believe that this is Plaintiffs’ intention. The Court determines
that the areas of requested access, namely the sidewalk on the west side of
Washington Boulevard adjacent to the Cobo Center, the exterior public plazas

15

including the stairway, and the sidewalks between the City sidewalk and the Cobo
Center building are “public fora.” Further, even if the Court deems the areas
outside of the sidewalk on the west side of Washington Boulevard adjacent to the
Cobo Center as “non-public fora,” the Court is unpersuaded that Defendants’
proposed restriction is reasonable because the Court is not convinced that
Plaintiffs’ proposed actions pose the “legitimate concern for public safety and
security during the auto show” that Defendants purport.
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion for Temporary Restraining Order
[Docket No. 34, filed December 23, 2013] is GRANTED pursuant to Fed. R. Civ.
P. 65(b).
IT IS FURTHER ORDERED that Defendants are ENJOINED from
prohibiting Plaintiffs from holding placards and leafleting on the sidewalk on the
west side of Washington Boulevard adjacent to the Cobo Center and on the
exterior public plazas and sidewalks between the City sidewalk and the Cobo
Center building. This temporary restraining order expires within 14 days of entry
of the order. Fed. R. Civ. P. 65(b)(2).
IT IS FURTHER ORDERED that although Plaintiffs have not addressed
the security requirement set forth in Fed. R. Civ. P. 65(c), the Court will not

16

require a security since the matter involves a constitutional issue affecting the
public.
IT IS FURTHER ORDERED that for the limited purpose of the entry of
this Order ONLY, and the directives therein, the Order Staying Action against the
City of Detroit and the Detroit Police Department [Docket No. 24, August 12,
2013] is lifted. The stay otherwise continues.
IT IS FURTHER ORDERED that Defendant, City of Detroit’s Motion for
Leave to File Amended Brief in Opposition to Plaintiffs’ Motion for Temporary
Restraining Order is GRANTED.2
IT IS SO ORDERED.

Dated: January 10, 2014

s/Denise Page Hood
DENISE PAGE HOOD
U.S. DISTRICT COURT JUDGE

I hereby certify that a copy of this order was served upon the attorneys of record on
this date, January 10, 2014, by electronic and/or ordinary mail.

s/LaShawn R. Saulsberry
Case Manager

On January 10, 2014, Defendant City of Detroit delivered to the Court a Motion
for Leave to File Amended Brief in Opposition to Motion for Temporary
Restraining Order as well as an Amended Answer to Plaintiffs’ Motion for
Temporary Restraining Order.

2

17