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Memorandum in Support of Motion for Temporary Restraining Order and Preliminary Injunction

Memorandum in Support of Motion for Temporary Restraining Order and Preliminary Injunction

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Published by Tom Ciesielka
Filed by Plaintiffs: Dr. Bartolo Spano, Craven-Pamlico Christian Coalition, Jerry Schill, Jim Bottcher, Pat O’Connell, Ken Limmer, Artemio Aneuber, and Mary Aneuber vs. Defendants which include: the City of Jacksonville, the Mayor of Jacksonville, the Chief of Police, City Council of Jacksonville.
Filed by Plaintiffs: Dr. Bartolo Spano, Craven-Pamlico Christian Coalition, Jerry Schill, Jim Bottcher, Pat O’Connell, Ken Limmer, Artemio Aneuber, and Mary Aneuber vs. Defendants which include: the City of Jacksonville, the Mayor of Jacksonville, the Chief of Police, City Council of Jacksonville.

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Published by: Tom Ciesielka on Nov 02, 2011
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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF NORTH CAROLINA
 DR. BARTOLO SPANO, CRAVEN-PAMLICOCHRISTIAN COALITION, a nonprofit organization,JERRY SCHILL, JIM BOTTCHER, PAT O’CONNELL,KEN LIMMER, ARTEMIO ANEUBER, and MARYANEUBER,Plaintiffs,vs.THE CITY OF JACKSONVILLE, SAMMY PHILLIPS, asthe Mayor of Jacksonville, THE CITY COUNCIL OFJACKSONVILLE, MICHAEL G. YANIERO, in his officialcapacity as Jacksonville Chief of Police, and LT. SEANMAGILL, in his official capacity as an officer of theJacksonville Police Department,Defendants.
)
 
)))))))))))))))))Case No. 11-cv-00187MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
 NOW COME plaintiffs, Dr. Bartolo Spano, Craven-Pamlico Christian Coalition,Jerry Schill, Jim Bottcher, Pat O’Connell, Ken Limmer, Artemio Aneuber, and MaryAneuber, by and through their undersigned counsel, and submit this Memorandum inSupport of their Motion for Temporary Restraining Order and Preliminary Injunction.
INTRODUCTION
Plaintiffs challenge the constitutionality of the Jacksonville Municipal Code,Article IV, Sections 23-58 et. seq. ("Parades and Public Assemblies"), as enacted and asapplied. Jacksonville's scheme chills the constitutionally protected speech of anyonewishing to communicate political or religious beliefs in the City's public places. It isunconstitutional on its face because it does not exempt small groups from its reach, doesnot afford “ample alternatives for communication,” and does not contain “narrow,objective, and definite” standards to guide the licensing authority.
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Case 4:11-cv-00187-BO Document 2-1 Filed 11/01/11 Page 1 of 20
 
Plaintiffs also believe the ordinance was unconstitutionally applied to them. Their small group had to secure a permit. The City issued the permit but later revoked it. Itsrationale for this ad hoc revocation—"concerns about public safety"—appears to be a pretext. The City’s true motive seems to have been either administrative convenience— restricting assembly to paved sidewalks to avoid the headache of locating public rights of way on unpaved walkways—or to placate persons complaining about Plaintiffs’ speech.Either way, the City unlawfully suppressed Plaintiffs’ speech.
STANDARD FOR TEMPORARY RESTRAINING ORDER ANDPRELIMINARY INJUNCTION
This Court should grant injunctive relief to Plaintiffs because they meet all four requirements for a preliminary injunction:
They are likely to succeed on the merits (Section I,
infra
);
An infringement of free speech rights constitutes irreparable harm (SectionIIA,
infra
);
The balance of hardships tips decidedly in Plaintiffs’ favor because the City isnot harmed at all by allowing Plaintiffs to exercise their free speech rights(Section IIB,
infra
); and
 
The public interest is served by correcting infringements of constitutionalrights (Section IIC,
infra
).
 See WV Ass'n. of Club Owners & Fraternal Servs.,
 
 Inc. v. Musgrave
, 553 F.3d 292, 298(4th Cir. 2009), citing
Winter v. National Resources Defense Council 
, 555 U.S. 7, 10(2008). The standard is the same for a temporary restraining order issued with notice tothe defendants.
 Bieros v. Nicola
, 857 F.Supp. 445, 446 (E.D. Pa. 1994).
ARGUMENTI. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.A. The Burden Falls On The City To Prove The Constitutionality Of ItsOrdinance And Its Actions.
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“When the Government restricts speech, the Government bears the burden of provingthe constitutionality of its actions.”
United States v. Playboy Entertainment Group, Inc.
,529 U.S. 803, 816 (2000);
 Ashcroft v. American Civil Liberties Union
, 542 U. S. 656, 666(2004). Ordinarily “the burdens at the preliminary injunction stage track the burdens attrial.”
Gonzales v. O Centro Espirita
, 546 U.S. 418, 429 (2006). But the burden isinverted in this constitutional challenge. This Court should grant both a temporaryrestraining order and preliminary injunction unless the City can show that Plaintiffs areunlikely to succeed on the merits.
B. The Ordinance Is A Prior Restraint On Free Speech In A TraditionalPublic Forum—Subject To Heightened Judicial Scrutiny.
Plaintiffs desire to communicate on a public sidewalk—a traditional public forumthat occupies "a special position in terms of First Amendment protection."
 Boos v. Barry
,485 U.S. 312, 318 (1988), quoting
United States
v.
Grace
, 461 U.S. 171, 180 (1983).The government's ability to restrict expressive activity in such places "is very limited."
 Id 
. at 177. Jacksonville's permit scheme is a prior restraint because it requires groups toobtain a permit before engaging in constitutionally protected speech.
Cox v. City of Charleston
, 416 F.3d 281, 284 (4th Cir. 2005);
Shuttlesworth v. City of Birmington
, 394U.S. 147, 150-151 (1969). There is a "heavy presumption" against its constitutionality.
 Forsyth County v. Nationalist Movement,
505 U.S. 123, 130 (1992);
 Bantam Books, Inc.v. Sullivan,
372 U.S. 58, 70 (1963).It is offensive—not only to the values protected by the First Amendment, but tothe very notion of a free society—that in the context of everyday public discoursea citizen must first inform the government of her desire to speak to neighbors andthen obtain a permit to do so.
Watchtower Bible & Tract Soc't of NY, Inc. v. Vill. of Stratton
, 536 U.S. 150, 165-66(2002).
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