Rhode Island Homeless Advocacy Project et al v. City of Cranston et al
Filing
6
MEMORANDUM AND ORDER granting 2 Motion for TRO; taking under advisement 2 Motion for Preliminary Injunction until a hearing is held. So Ordered by Chief Judge William E. Smith on 8/3/2017. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
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)
)
)
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Plaintiffs,
)
)
v.
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CITY OF CRANSTON, by and through
)
DAVID CAPUANO, in his official
)
capacity as City Treasurer; ALLAN )
FUNG, in his official capacity as )
Mayor of the City of Cranston; and )
MICHAEL J. WINQUIST, in his
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official capacity as Chief of
)
Police of the City of Cranston,
)
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Defendants.
)
___________________________________)
RHODE ISLAND HOMELESS ADVOCACY
PROJECT; KAREN ROSENBERG; DEBORAH
FLITMAN; and FRANCIS WHITE, JR.,
C.A. No. 17-334 S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
In
February
2017,
the
City
Council
of
Cranston
passed
Ordinance 2017-1, entitled “Prohibition Against Distribution to
and Receiving from Occupants of Motor Vehicles” (“Ordinance”).
This Ordinance replaced Chapter 10.40.070 of the Code of the City
of
Cranston,
entitled
“Solicitation
on
Roadways
Prohibited.”
Before the Court is Plaintiffs’ Motion for Temporary Restraining
Order and Preliminary Injunction (ECF No. 2) to enjoin the City
from enforcing the Ordinance while Plaintiffs litigate their First
Amendment
challenges.
For
the
reasons
discussed
below,
Plaintiffs’ Motion for Temporary Restraining Order is GRANTED.
To determine whether to grant preliminary injunctive relief,
including a temporary restraining order, the Court considers four
well-established prongs:
(1) the likelihood of success on the merits; (2) the
potential for irreparable harm if the injunction is
denied; (3) the balance of relevant impositions, i.e.,
the hardship to the nonmovant if enjoined as contrasted
with the hardship to the movant if no injunction issues;
and (4) the effect (if any) of the court’s ruling on the
public interest.
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15
(1st Cir. 1996) (citation omitted).
The first prong is absolutely
necessary; without establishing a strong likelihood of prevailing
on the merits as opposed to a mere possibility of success, the
other
prongs
are
irrelevant.
Sindicato
Puertorriqueno
de
Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012) (quoting
Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010)).
Plaintiffs argue that the Ordinance is unconstitutional as
both a “content-based” restriction as well as a “content-neutral”
restriction.
A content-based restriction on speech would trigger
a “strict scrutiny” analysis, Reed v. Town of Gilbert, 135 S.Ct.
2218, 2227 (2015), and almost certainly establish a likelihood of
success on the merits.
restriction
is
Plaintiffs have not demonstrated that the
content
based,
so
the
Court
will
consider
Plaintiffs’ likelihood of success on the merits under the contentneutral analytical framework.
This framework requires Plaintiffs
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to make a prima facie showing that the Ordinance infringes on their
First Amendment rights. See Virginia v. Hicks, 539 U.S. 113, 122
(2003).
Once Plaintiffs make this showing, the burden shifts to
Defendants to show that the Ordinance is “narrowly tailored to
serve a significant governmental interest, and that [it] leave[s]
open
ample
alternative
channels
for
communication
of
the
information.” Cutting v. City of Portland, 802 F.3d 79, 84 (1st
Cir. 2015) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989)).
In support of their motion, Plaintiffs have submitted several
exhibits along
with
a
Verified
Complaint.
For
example,
one
Plaintiff has submitted an affidavit in support of his claim that
his First Amendment rights have been and continue to be impeded by
the Ordinance because he relies on donations from passing motorists
for financial support, and, based on his experience, the new
restrictions make it too difficult to panhandle successfully at
all in the City of Cranston. (Declaration of Francis White, Jr. ¶¶
4, 16, ECF No. 2-1.)
Defendants, at least at this preliminary
stage, do not dispute that handing out and receiving material is
a form of speech protected by the First Amendment.
Plaintiffs
have also shown that the sweep of the prohibition is quite broad
– it prohibits everything from firefighters passing the boot, to
an individual giving out a phone number or directions to a lost
motorist, to candidates for office handing out fliers, and more.
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So, there is little question that Plaintiffs have met their initial
burden of demonstrating infringement on First Amendment rights,
shifting the burden to Defendants.
Defendants, in response, rely entirely upon the legislative
findings in the Ordinance. With respect to the government interest
being served, the legislative findings make clear that Defendants
seek to protect the public from distracted driving by prohibiting
individuals from receiving or passing items to an occupant of a
vehicle while the individual stands in the roadway.
The findings
also include the number of car accidents in 2016 at twenty-one
intersections in the City of Cranston and refer to these numbers
as “high,” but do not contain any further information that in any
way connects
driving.
the
accident
data
to
the
problem
of
distracted
Moreover, the Ordinance does not prohibit hand-to-hand
transfers from persons standing on a sidewalk, nor does it restrict
a person on a sidewalk, a median, or the roadway from holding a
sign, yelling, chanting, or conversing with occupants of vehicles
while they are stationary.
Although
given
the
opportunity,
Defendants
submitted
no
evidence to support the safety issues identified in the findings,
nor to support a conclusion that the distractions eliminated by
the Ordinance are correlated with the number of traffic accidents
at intersections.
Simply put, the legislative findings are long
on conclusory observation but short on meaningful data connecting
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the chosen solution to an actual problem.
Further, Defendants
also have failed to explain how activities not prohibited by the
Ordinance (hand-to-hand exchanges with individuals on sidewalks or
large groups of people yelling with signs on a traffic median, for
example)
are
somehow
less
distracting
than
the
activities
prohibited.
The upshot is that, while perhaps a close call at this
preliminary stage, the Ordinance does not appear narrowly tailored
to the stated government interest, and Plaintiffs have therefore
established a strong likelihood of success on the merits of their
Verified Complaint.
After
likelihood
concluding
of
success
that
on
Plaintiffs
the
merits,
have
the
established
Court
must
a
presume
irreparable injury to Plaintiffs if their motion is denied. See
Fortuno, 699 F.3d at 10-11 (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976) (“[T]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable
injury.”)).
With respect to the third prong of the temporary
restraining order analysis, the Court finds that the harm to
Plaintiffs which would result from denying the motion - harm that
is
well
supported
by
the
Verified
Complaint
and
affidavits
submitted - outweighs the harm to Defendants by enjoining the
Ordinance, given the Ordinance was enacted only a few months ago.
Prior to its passage in February, the activities prohibited by the
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Ordinance were allegedly engaged in all over the City of Cranston
and, as stated above, there is no evidence before the Court to
show that any accidents were caused by those who engaged in the
newly-prohibited
activities
prior
to
the
enactment
of
the
Ordinance. Thus, Defendants have made no showing of harm resulting
from continuing to allow the prohibited activities.
Finally, the
Court finds that the public has a significant interest in local
policies that do not infringe individual First Amendment rights,
and
will
not
be
harmed
by
the
issuance
of
this
temporary
restraining order pending a final determination about whether the
Ordinance is, in fact, a violation of the First Amendment.
Plaintiffs’ Motion for Temporary Restraining Order (ECF No.
2) is, therefore, GRANTED.
Defendants are hereby enjoined from
enforcing the Ordinance until further order of the Court.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: August 3, 2017
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