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Salman Tro Request Denied

Salman Tro Request Denied

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Published by ray stern

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Published by: ray stern on Apr 20, 2011
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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONAMichael Salman and Suzanne Salman,Plaintiffs,vs.City of Phoenix, et al.,Defendants.))))))))))) No. CV-11-646-PHX-FJM
We have before us plaintiffs’ motion for a temporary restraining order (doc. 2) andmemorandum in support (doc. 3). Plaintiffs seek to enjoin defendants from enforcing codesand ordinances “against plaintiffs to prohibit private worship, bible studies and the placementof reader board with religious messages at the residence and from prosecuting, sentencing,arresting or incarcerating plaintiffs.” Motion at 4.We first note that plaintiff’s motion violates LRCiv 7.2(e), limiting all motions,including supporting memoranda, to seventeen pages. In addition, plaintiffs’ seventy pagecomplaint violates Rule 8(a), Fed. R. Civ. P., which restricts plaintiffs’ pleading to a “shortand plain statement of the claim showing that the pleader is entitled to relief.”Plaintiffs allege that on September 27, 2010, plaintiff Michael Salman was sentenced by the Municipal Court of the City of Phoenix to serve sixty days in jail for using his propertyas a church. His appeal of the conviction is currently pending. On January 20, 2011, plaintiff Suzanna Salman was charged with violating city ordinances for displaying biblicalscripture on a reader board in front of plaintiffs’ residence. On March 21, 2011, pursuant to
Case 2:11-cv-00646-FJM Document 5 Filed 04/08/11 Page 1 of 4
12345678910111213141516171819202122232425262728- 2 -a warrant, police entered plaintiffs’ residence, after which plaintiff Michael Salman wascharged with seven building code violations. Plaintiffs allege that defendants’ enforcementof its codes violates plaintiffs’ rights under the Religious Land Use and InstitutionalizedPersons Act, 42 U.S.C. § 2000cc, et seq., the First, Fourth, and Fourteenth Amendments of the United States Constitution, Article 2, Sections 4, 5, and 6 of the Arizona Constitution,and the Arizona Free Exercise of Religion Act, A.R.S. § 41-1493 et seq. Plaintiffs further claim that the City of Phoenix Sign Ordinance and Assembly Ordinance and Codes areunconstitutionally vague. Plaintiffs ask us to enjoin the pending state criminal proceedingsagainst them.To obtain a temporary restraining order, plaintiffs must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm if defendants are not enjoined; (3)that the balance of equities tips in their favor; and (4) that a restraining order is in the publicinterest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, ___, 129 S. Ct. 365, 374(2008).
Plaintiffs’ likelihood of success on the merits is quite low. We are very likely todismiss this action on abstention grounds. Under principles of comity and federalism, theavailability of injunctive relief against state criminal proceedings is very narrow. Youngev. Harris, 401 U.S. 37, 53, 91 S.Ct. 746, 755 (1971). We do not “restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Id., 401 at 43–44, 91 S.Ct. at 750. The allegedinjury must go beyond that which is “incidental to every criminal proceeding broughtlawfully and in good faith,” and the possible unconstitutionality of a statute on its face doesnot in itself justify an injunction against good-faith attempts to enforce it. Younger, 407 U.S.at 49, 56, 46 S.Ct. at 754, 755. “The accused should first set up and rely upon his defensein the state courts, even though this involves a challenge of the validity of some statute,unless it plainly appears that this course would not afford adequate protection.” Fenner v.
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12345678910111213141516171819202122232425262728- 3 -Boykin, 271 U.S. 240, 244, 46 S.Ct. 492, 493 (1926).We abstain pursuant to Younger if three criteria are met: “(1) state judicial proceedings must be ongoing; (2) the state proceedings must implicate an important stateinterest; and (3) the state proceedings must offer an adequate opportunity to litigate federalconstitutional issues.” Fort Belknap Indian Community v. Mazurek, 43 F.3d 428, 431 (9thCir. 1994).These three requirements seem to be present in this action. First, state judicial proceedings are ongoing. At the time plaintiffs filed their federal complaint, they weresubject to pending criminal proceedings in state court. See Dubinka v. Judges of Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). Plaintiffs allege that Michael Salman’s convictionis on appeal and that he has been charged but not yet convicted for violating seven buildingcodes. Complaint at 2. Plaintiff Suzanne Salman has been charged but apparently not yetconvicted for violating city zoning ordinances. Id. Second, the criminal proceedingsimplicate an important state interest. Plaintiffs challenge not just defendants’ enforcementof the law, but also seek to invalidate several sections of the City of Phoenix’s zoning codeand ordinances. See e.g., Complaint at 50 (alleging defendant City of Phoenix’s codes andordinances violate plaintiffs’ rights to free exercise of religion). These codes promote theimportant state interest in the safety and well-being of Phoenix citizens. See Meredith v.Oregon, 321 F.3d 807, 818 (9th Cir. 2003) (promotion of public safety satisfies state interest prong of Younger). Third, the pending state proceedings afford them an adequateopportunity to litigate their federal constitutional claims. We see no reason why plaintiffscannot assert their claims as a defense to the state proceedings.
There is no likelihood of irreparable harm. The complaint shows that plaintiffs have been in a dispute with the City of Phoenix and their neighbors at least since 2007. Michael’strial was held last summer. Plaintiffs are not prevented from worshiping together in their home. They are only prevented from using their home as a church and imposing their 
Case 2:11-cv-00646-FJM Document 5 Filed 04/08/11 Page 3 of 4

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