In re: Vic Sasso

Filing 2

Memorandum Opinion and Order denying #1 Motion for TRO; Plaintiff must submit the filing fee within one business day of the entry of this order. (Ordered by Judge Brantley Starr on 6/1/2020) (lrl)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

VIC SASSO,
Plaintiff,
v.
CITY OF DALLAS, and CITY OF
DALLAS POLICE DEPARTMENT,
Defendants.

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Civil Case No. 3:20-CV-1398-S

MEMORANDUM OPINION AND ORDER
This is an application for a temporary restraining order regarding Dallas’s
curfew. George Floyd died under the knee of a Minneapolis police officer on May 25.
Protests ensued across the nation. Some turned violent, including in Dallas. The
City of Dallas responded with a local disaster declaration from the mayor that paved
the way for a curfew in certain areas. After the city manager issued a curfew in
Dallas, Sasso filed this application for a temporary restraining order. He argues that
the curfew facially violates the First, Fourth, Eighth, and Fourteenth Amendments,
and the Commerce Clause in the United States Constitution, as well as the First,
Fourth, and Fourteenth Amendments’ counterparts in the Texas Constitution. The
Court DENIES the request for a temporary restraining order because Sasso has
failed to meet his burden to show irreparable harm to himself, that the harm of the

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curfew of limited geography and duration is worse than the harm of a temporary
restraining order, or that the public interest favors the temporary restraining order.
I.

Factual Background

The protests that precipitated the curfew at issue in this application occurred
on May 29 and 30. The protests devolved into vandalism, looting, and violence. 1
On May 31, 2020, Texas Governor Greg Abbott declared a state of emergency
under section 418.014 of the Texas Government Code. Under section 418.017 of that
code, Governor Abbott authorized “the use of all available resources of state
government and of political subdivisions that are reasonably necessary to cope with
this disaster.” 2 Under section 418.016(a), he suspended “all relevant provisions
within Chapter 1701 of the Texas Occupations Code, as well as Title 37, Chapters
211–29 of the Texas Administrative Code, to the extent necessary for the Texas
Commission on Law Enforcement to allow federal law enforcement officers to perform
peace officer duties in Texas” and “any other regulatory statute.” 3
After the Governor’s emergency declaration, Dallas Mayor Eric Johnson issued
his own emergency proclamation under Chapter 418 of the Texas Government
Code. 4 The mayor’s emergency proclamation invoked Section 14.B of the Dallas City

1 This application was filed ex parte, which means without traditional notice to the city. The
Court relies on the application, the attached disaster declaration, and other government documents of
which the Court may take judicial notice.
2

TEX. GOV’T CODE § 418.017.

3 “Governor Abbott Declares State of Disaster Following Violent Protests,” Office of the Texas
Governor, May 31, 2020 (https://gov.texas.gov/news/post/governor-abbott-declares-state-of-disasterfollowing-violent-protests2).

See “Mayor Eric Johnson Issues Proclamation Declaring A Local State of Disaster,” City of
Dallas, May 31, 2020 (Mayor Eric Johnson on Sunday issued a Proclamation Declaring A Local State
4

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Code, which authorizes the Dallas city manager to, among other powers and duties,
“order a curfew into effect in all or any delineated part of the city and to exempt from
the curfew any person whose movement is essential to the health, safety, and welfare
of the public.” 5 That same afternoon, Dallas City Manager T.C. Broadnax issued
Emergency Regulations Ordinance 31544 (curfew ordinance), approved by Dallas
City Attorney Christopher J. Caso, detailing the curfew’s immediately effective
requirements:
(a) A nighttime curfew is established for the areas described in Exhibit
A, which is attached to and made a part of these emergency
regulations, including all public places and streets, daily from 7:00
p.m. until 6:00 a.m. the following morning.
(b) During the hours of curfew, all persons must not travel on any public
street or be in any public space within the areas described in Exhibit
A.
(c) All law enforcement, fire, medical personnel, and members of the
news media, as well as other designated persons authorized by the
City of Dallas, Dallas Police Department, Dallas County, or the State
of Texas are exempt from the curfew. Individuals traveling to and
from work, seeking medical attention or engaging in exempt
activities, fleeing dangerous situations, or experiencing
homelessness are also exempt.
(d) For purposes of these emergency regulations, “travel” incudes
without limitation, travel on foot, bicycle, skateboard, scooter,
motorcycle, automobile, or any other mode of transporting a person
from one location to another.

of Disaster for civil disorder and threats of rioting. The proclamation allows the city manager, under
Section 14B of the Dallas City Code, to issue emergency regulations, including a curfew. The details
of those emergency regulations will be announced shortly by the city manager's office. The disaster
declaration is set to expire in seven days.”). See generally Proclamation Declaring a Local State of
Disaster,
Office
of
Dallas
Mayor
Eric
Johnson,
May
31,
2020
(https://content.govdelivery.com/attachments/TXDALLAS/2020/05/31/file_attachments/1463340/Procl
amation_Declaring_A_Local_State_Of_Disaster_-_Rioting-Looting_(George_Floyd's_Death).pdf).
5

The Dallas City Code § 14B-7 (City Manager – Powers and Duties).

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(e) For purposes of these emergency regulations, “public place” means
any place, whether on privately or publicly owned property,
accessible to the general public, including but not limited to streets,
highways, alleys, sidewalks, vacant lots, parks, public buildings,
parking lots, and unsupervised property. 6
Exhibit A includes the following description of the areas under curfew:
the area bounded by Riverfront Boulevard to the west, Oak Lawn
Avenue to the northwest, Lemmon Avenue to the northeast, Haskell
Avenue to the northeast, Main Street to the southeast, Canton Street to
the south, Hall Street to the southeast, Malcolm X Boulevard to the
northeast, Hickory Street to the southeast, Cesar Chavez Boulevard to
the northeast, and Corinth Street to the southwest. 7
Later that same day, Sasso (a Dallas resident), filed his emergency application
for an ex parte temporary restraining order to enjoin and restrain the City of Dallas
from enforcing its curfew ordinance [Doc. No. 1]. 8
II.

Legal Background

A court should issue a temporary restraining order if the movant shows:
(1) a substantial likelihood of success on the merits, (2) a substantial
threat of irreparable injury if the injunction is not issued, (3) that the
threatened injury if the injunction is denied outweighs any harm that
will result if the injunction is granted, and (4) that the grant of an
injunction will not disserve the public interest. 9

Emergency Regulations Ordinance (31544), City of Dallas (May 31, 2020), at 2
(https://dallascityhall.com/DCH_Documents/covid19/Emergency_Regulations_Ordinance_(31544)__Rioting-Looting_(George_Floyd’s_Death).pdf).
6

7

See id., Exhibit A, at 1.

The application for temporary restraining order technically challenged the mayor’s disaster
declaration. But that declaration wasn’t what established the curfew. The city manager’s Emergency
Regulations Ordinance 31544 (the curfew ordinance) established the curfew. The Court charitably
construes the application to challenge that curfew ordinance.
8

9

Paulson Geophysical Servs., Inc. v. Sigmar, 529 F.3d 303, 309 (5th Cir. 2008).

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III.

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Application

Even if Sasso’s conclusory recitations of constitutional allegations met his
burden to show he will prevail on the merits of his claims, Sasso nowhere alleges
what irreparable harm will befall him if the curfew remains in effect (nor does he
brief whether his cursory allegations of constitutional harm can trigger a
presumption of harm under Supreme Court or Fifth Circuit precedent).
But more fundamentally, 10 Sasso must show that the harm of no temporary
restraining order will outweigh the harm of having one, and that the temporary
restraining order is in the public interest. Sasso failed to show how the curfew that
is only applicable in limited areas of Dallas, for limited times of day, and for limited
days is worse (due to constraints on constitutional rights) than what it seeks to cure
(vandalism, looting, and violence).

This is no city-wide curfew.

Rather, it is

geographically tailored in light of the vandalism, looting, and violence the city has
encountered.

It also allows peaceful assembly elsewhere.

This is analogous to

“reasonable time, place, or manner restrictions” 11 that the Supreme Court has upheld

Speaking of fundamentals, one wonders where Sasso has standing. The Supreme Court
generally forbids taxpayer standing against the federal government because the taxpayer is so far
removed from the expenditure. Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 487 (1923)
(“But the relation of a taxpayer of the United States to the federal government is very different. His
interest in the moneys of the treasury—partly realized from taxation and partly from other sources—
is shared with millions of others, is comparatively minute and indeterminable, and the effect upon
future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis
is afforded for an appeal to the preventive powers of a court of equity.”). More recently in
DaimlerChrysler Corp. v. Cuno, the Supreme Court did not question the plaintiff’s municipal taxpayer
standing, just that the relief sought was an injunction of state action instead of municipal action. 547
U.S. 332, 353 (2006). The Supreme Court held that there generally is no state taxpayer standing. Id.
at 346. Accordingly, it appears that future development of this case may show that Sasso has
municipal taxpayer standing.
10

11

Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).

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against First Amendment challenges to local ordinances because “they are narrowly
tailored to serve a significant governmental interest, and that they leave open ample
alternative channels for communication of the information.” 12 Other courts weighing
the harms and public interest in analogous situations have held likewise. 13
IV.

Conclusion

In short, Sasso has not met his burden of showing irreparable harm to himself,
that the harm of the curfew is worse than the harm of a temporary restraining order,
or that the public interest favors the temporary restraining order. Accordingly, the
Court denies the application. 14
IT IS SO ORDERED this 1st day of June 2020.

BRANTLEY STARR
UNITED STATES DISTRICT JUDGE

12

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

See, e.g., Nat’l Tank Truck Carriers, Inc. v. City of New York, 677 F.2d 270, 274 (2d Cir. 1982)
(upholding city ban and curfew on natural gas transportation because “these inconveniences are not
unconstitutionally disproportionate when balanced against the public interest in avoiding a
catastrophic accident in a densely populated urban area”); Isbell v. City of Oklahoma City, Okla., 2011
WL 6152852, at *9 (W.D. Ok 2011) (upholding a park curfew and ban on camping because “the
requested injunction would be contrary to a federal policy of permitting governments to set reasonable
restrictions on the use of public forums within their jurisdiction”); Moorhead v. Farrelly, 723 F. Supp.
1109, 1115 (D.V.I. 1989) (upholding curfew over constitutional challenge because “the pleading does
not establish that the irreparable harm he suffered outweighs the compelling public interest in the
protection and safety of the residents”).
13

14 The Court has been advised by the clerk that the applicant has made multiple attempts to
submit the filing fee though CM/ECF but has been unsuccessful. The Court has considered his
application based on the clerk’s representation that the plaintiff has made diligent efforts to pay the
fee but is experiencing technical difficulties. The Court orders the plaintiff to submit the filing fee
within one business day of the entry of this order.