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Bush Library Protest Suit Response

Bush Library Protest Suit Response

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Published by Robert Wilonsky
The city says protestors can't protest too close to the opening of the George W. Bush Presidential Center due to city ordinance.
The city says protestors can't protest too close to the opening of the George W. Bush Presidential Center due to city ordinance.

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Published by: Robert Wilonsky on Apr 17, 2013
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04/17/2013

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Case 3:13-cv-01479-P Document 6 Filed 04/17/13

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION PAUL HELLER, LESLIE HARRIS, DEBORAH BELTRAN, GARY STUARD, DIANE BAKER, and MAVIS BELISLE, Plaintiffs, v. CITY OF DALLAS, Defendant. § § § § § § § § § § §

3:13-cv-1479-P

ECF

DEFENDANT’S BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTION TO THE HONORABLE COURT: Defendant, the City of Dallas (the “City”), hereby files its Brief in Response to Plaintiffs’ Motion for Temporary Restraining Order and Injunction. The Court should deny the request

because Plaintiffs’ pleading does not satisfy the elements for entitlement to injunctive relief. I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, Paul Heller, Leslie Harris, Deborah Beltran, Gary Stuard, Diane Baker, and Mavis Belisle (collectively, “Plaintiffs”), intend to stage protests along the roadway near the George W. Bush Presidential Center (the “Bush Center”) at Southern Methodist University (“SMU”) for the period preceding and during the opening and dedication of the Bush Center on April 25, 2013. (Pls.’ Orig. Pet. at 3-4). Specifically, Plaintiffs plan to protest along the side of the U.S. Highway 75 (“Central Expressway”) service road between Mockingbird Lane and SMU Boulevard on or near SMU property that Plaintiffs state SMU has agreed to let them use for their protest. (Id.)

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In January 1989, the Dallas City Council adopted Ordinance No. 20169 (the “Ordinance”), codified as Section 28-158.1 of the Dallas City Code (the “Code”).1 The Ordinance prohibits the carrying or display of a sign on, over, or within 75 feet of the roadway of designated streets or highways in the City if the signs are displayed “in a manner intended to attract the attention of vehicle occupants on those streets or highways.” Dallas, Tex., Code § 28-158.1(a)-(b) (Exhibit A).2 The portion of Central Expressway where Plaintiffs wish to demonstrate is included in the designated streets and highways covered by the 75-foot setback requirement. Dallas, Tex., Code § 28-158.1(a)-(b) (Exhibit A). The Code defines “roadway” as including both “that portion of a street improved, designed or ordinarily used for vehicular traffic and that portion of a street used for drainage.” Dallas, Tex., Code § 1-5. (Exhibit B). The Code provides that “street” shall “include any highway, boulevard, alley, street, avenue or public place or square, bridges, viaducts, culverts, underpasses, overpasses, tunnels and causeways in the city, dedicated or devoted to public use.” Dallas, Tex., Code § 1-5. (Exhibit B) The Code also provides a definition of “highway” that is virtually identical. Therefore, the 75-foot setback zone is measured from the curb of Central Expressway service roadway and includes the abutting sidewalk where Plaintiffs plan to protest. Plaintiffs filed their civil action in the 116th Judicial District Court, Dallas County, Texas, against the City on April 11, 2013. Plaintiffs’ Original Petition in the state court action included an application for temporary restraining order (“TRO”), temporary injunction and permanent injunction, seeking to enjoin the City from enforcing the Ordinance, including the period preceding and during the opening and dedication of the Bush Center on April 25, 2013. On April 16, 2013, pursuant to Sections 1441 and 1446 of Title 28 of the United States Code, the City removed the case

1 All references herein to the “Ordinance” or “Code” are intended to encompass both. The City respectfully asks the Court to take judicial notice of all relevant provisions of the Dallas City Code cited herein. For clarity and convenience, a true and correct copy of relevant provisions of the Code cited are attached herewith. Section 28-158.1 makes exceptions for directional warning or traffic signs and signs intended to summon emergency assistance.
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to the United States District Court for the Northern District of Texas, Dallas Division, and this matter is currently pending before this Court. Because Plaintiffs cannot meet the elements necessary to entitle them to the extraordinary relief of a TRO or injunction, the Court should deny their application. II. LEGAL STANDARD

There are four prerequisites for obtaining the extraordinary relief of a temporary restraining order or preliminary injunction. To prevail, a plaintiff must show: (i) a substantial likelihood of success on the merits; (ii) a substantial threat of immediate and irreparable harm for which it has no adequate remedy at law; (iii) that greater injury will result from denying the temporary restraining order than from its being granted; and (iv) that a temporary restraining order will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Auth. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc). The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted. Miss. Power & Light Co. v. United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir. 1985); Clark, 812 F.2d at 993. Otherwise stated, if a party fails to meet any of the four requirements, the court cannot grant the temporary restraining order or preliminary injunction. Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 763 (N.D. Tex. 2007). Furthermore, the purpose of a temporary restraining order is to preserve the status quo pending a hearing on the preliminary injunction. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). Because there is no threat of imminent harm at stake, the City respectfully requests that the Court deny Plaintiff’s motion for TRO and schedule a hearing on Plaintiffs’ request for preliminary injunction to afford the parties an opportunity to present this matter more fully to the Court.

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III.

ARGUMENT AND ANALYSIS

Plaintiffs contend the City’s Ordinance is overbroad, vague, and an unconstitutional restriction on their First Amendment right to protest on the sidewalk abutting the highways specified in the Ordinance. (Pls. Orig. Pet. at 4, 6-9). The Ordinance is a reasonable, content-neutral restriction on the time, place, and manner of speech permitted along the side of highways in the City in the interest of public safety. The Ordinance does not prohibit Plaintiffs from expressing their views near the Bush Center either during the April 25th dedication or at any other time. The Ordinance does not prohibit Plaintiffs from carrying and displaying signs, generally, in an organized protest. The Ordinance does not restrict Plaintiffs from expressing their views at every sidewalk or public location in the City by shouting, chanting, singing, sitting down, or distributing literature; it merely prohibits them from carrying or displaying signs intended to attract the attention of highway drivers. Plaintiffs will suffer no immediate or irreparable harm by: (1) moving their protest to another site, (2) moving their protest within the same general area as long as they are 75 feet from the roadway, or (3) holding their protest at that location without carrying or displaying signs intended to distract nearby drivers. A. Likelihood of Immediate and Irreparable Harm

With respect to Plaintiffs’ request for a TRO, Plaintiffs’ Petition does not show that they will suffer irreparable harm before an evidentiary hearing can be had on their request for a preliminary injunction. Plaintiffs state they wish to engage in their planned protest activities from April 22 through April 25, 2013. (Pls.’ Orig. Pet. at 14.) Therefore, no harm will occur before April 22. The City requests that the Court deny the TRO application and set this case for a hearing on Plaintiffs’ application for a preliminary injunction to give the parties the opportunity prepare and present evidence. The City will show that its 75-foot restriction on carrying signs near a highway is a reasonable time, place, and manner restriction in light of its significant interest in preventing

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driver distraction on the main lanes of highways as well as the busy service roads of highways. The City also intends to show that service roads of highways are included in the Ordinance’s 75-foot setback for individuals carrying signs for the same public safety considerations as for the main lanes of highways because drivers exiting the main lanes of highways at fast speeds are negotiating the same lanes of traffic with drivers attempting to enter the main lanes as well as other drivers entering or exiting the adjoining properties. The City requests the opportunity through a preliminary

injunction hearing to demonstrate to the Court that it has significant safety reasons to prohibit the carrying of signs within 75 feet of the designated freeways. More broadly, with respect to Plaintiffs’ request for preliminary and permanent injunction, Plaintiffs’ petition shows no irreparable harm to Plaintiffs if the City enforces its Ordinance. Plaintiffs’ petition, along with telephone conferences between the City and Plaintiffs’ attorneys, indicates that SMU has given Plaintiffs permission to occupy, along with potentially 200 other protestors, a parking area adjacent to an SMU-owned office tower on the east side of Central Expressway directly across the highway from the Bush Center. While Plaintiffs have alleged that they cannot access this area without walking along the service road, the City intends to present evidence that the area is accessible to cars and pedestrians by entering on the north side of the parking lot at SMU Boulevard between Central Expressway and Greenville Avenue, within walking distance from two DART rail stations. Accordingly, there is nothing that would in any way prevent Plaintiffs from holding a demonstration or protest at that site. Rather, Plaintiffs are complaining that the City’s 75-foot setback would do precisely what the Ordinance intends—prevent the distraction of drivers along a busy roadway. B. Balance of Hardships and Public Interest

If the Court enjoins the City from enforcing its ordinances, the potential risks to public safety greatly outweigh any harm that the Plaintiffs may suffer by: (1) moving their demonstration

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by 75 feet, (2) moving their demonstration to another site, or (3) demonstrating at that site in ways that do not involve carrying signs intended to distract nearby drivers. As noted, Plaintiffs are free to display signs and express their views anywhere outside the 75-foot setback zone abutting the major highways. There are many public streets and roads near the SMU campus and the Bush Center that do not fall within the City’s 75-foot setback zone for highways, and Plaintiffs can garner as much attention for their protest elsewhere due to the increased traffic expected in and around the entire area during the dedication. By contrast, the potential hazards that a large group of protesters would create by standing immediately next to fast-moving traffic on the highway3 are life-threatening, particularly during the time frame that Plaintiffs are seeking to demonstrate. Traffic in that area is expected to be greater than usual on the Bush Center’s opening day, and will likely involve more drivers from outside the area who are unfamiliar with the roads. C. Likelihood of Success on the Merits

Plaintiffs’ challenge to the Ordinance does not have a substantial likelihood of success on the merits. A government may enforce restrictions on the time, place, and manner of speech as long as the restrictions (i) are content neutral, (ii) are narrowly tailored to serve a significant government interest, and (iii) leave open ample alternative channels for communication of the information. Frisby v. Schultz, 487 U. S. 474, 481 (1988) (quoting Perry Educ. Ass’n v. Perry Local Educators' Ass’n, 460 U. S. 37, 45 (1983). Here, the Ordinance is a content-neutral regulation because it applies to any sign carried or displayed in a manner intended to attract the attention of nearby motorists. In addition, the Supreme Court has long held that governments have significant interests in promoting public safety and the free flow of traffic. See, e.g., Madsen v. Women’s Health Ctr., 512 U.S. 753, 768 (1994) (finding the state “has a strong interest in ensuring the public safety and

Under section 28-45(b) of the Code, the permitted speed limit along the service road at that section of Central Expressway is 40 miles per hour. If given the opportunity to present evidence at a hearing, the City intends to show that traffic often exceeds that speed on the service road.

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order, in promoting the free flow of traffic on public streets and sidewalks”); Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981) (recognizing the state interest in the safety and convenience of citizens using public fora). The Ordinance applies only to the largest highways in the City, which have many motor vehicles traveling at high rates of speed, some of which are merging onto and off of those highways. Restricting the carrying of signs directed at the motorists on busy highways is narrowly tailored to achieve this interest. See Ward v. Rock Against Racism, 491 U.S. 781, 798-800 (1989) ; Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 817 (1984) (“[I]f the City has a sufficient basis for believing that billboards are traffic hazards and are unattractive, ‘then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them.’”); Ayres v. City of Chicago, 125 F.3d 1010, 1015 (7th Cir. 1997) (“There are unquestionable benefits from regulating peddling . . . [including] the control of congestion.”). And as for ample alternative avenues for communication, the Ordinance prohibits carrying signs intended to attract the attention of drivers only in the 75-foot zone next to major highways in the City. There are hundreds of miles of sidewalks and thousands of acres of parks and other public fora in the City where Plaintiffs may carry signs and attempt to attract the attention of drivers and others. In addition, Plaintiffs may hold a demonstration within the 75-foot zone and express their views to the public in ways not involving signs, such as by shouting, chanting, singing, or distributing literature. See Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1201 (10th Cir. 2005). Accordingly, the Ordinance provides ample alternative channels of communication because it: (1) applies only to a few major highways in the City, (2) does not prohibit Plaintiffs from carrying signs while they protest anywhere beyond the 75-foot zone next to highways, and (3) does not prohibit Plaintiffs from expressing their views within the 75-foot zone in ways that do not involve carrying signs. See Schenck v. Pro-Choice Network, 519 U.S. 357, 376

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(1997); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08 (1981); Taxpayers for Vincent, 466 U.S. at 812. Plaintiffs allege the Ordinance is not content-neutral because there are scores of building signs within the 75-foot zone or is not being enforced against building signs with commercial messages. (Pls. Orig. Pet. at 11.) But the chapter of the City Code in which the Ordinance is located clearly does not apply to signs on buildings. Chapter 28 is entitled “Motor Vehicles and Traffic.” It contains regulations concerning only motor vehicles and pedestrians. For example, nearby sections of that chapter prohibit pedestrians from crossing or walking along freeways and prohibit picking up hitchhikers on freeways. See Dallas, Tex., Code §§ 28-157, 28-158. Building signs are regulated by Chapter 51A, Article VII, of the Dallas City Code. See Dallas, Tex., Code §§ 51A-7.101 (“Purpose”), § 51A-7.209 (“Signs Displaying Noncommercial Messages”), § 51A -7.304 (“Detached Signs”). Similar traffic safety concerns are addressed; among the purposes of the separate building sign regulations is “[t]o promote the efficient transfer of information in sign messages by providing that: /. . . persons exposed to signs are not so overwhelmed by the number of messages presented that they cannot find the information they seek, and are able to observe or ignore messages, according to the observer’s purpose.” Id. § 51A7.101(b)(4). The Ordinance addresses signage held and displayed by individuals, who, standing at streetlevel and immediately next to the roadway, pose a greater traffic distraction and danger. Such signs pose a greater distraction and danger than building signs because carried signs are constantly moving about (instead of being stationary like building signs) and are much harder to read due to having small letters and pictures (unlike building signs). Accordingly, drivers will be more likely to break suddenly in order to satisfy their curiosity about the nature of the signs and person carrying them. Moreover, the Ordinance equally prohibits the carrying of commercial as well as

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noncommercial signs.4 Accordingly, the Ordinance is narrowly tailored to serve the City’s significant interest in promoting public safety near its most heavily traveled roadways by reducing the distraction of persons waving signs at the drivers—regardless of the content involved. IV. CONCLUSION AND PRAYER

For the reasons stated herein, the City respectfully requests that the Court deny Plaintiffs’ application for temporary restraining order, preliminary injunction, and permanent injunction. The City also requests the opportunity to present evidence before the Court in a preliminary injunction hearing, and to all other relief to which it may be entitled. Respectfully Submitted, THOMAS P. PERKINS, JR. Dallas City Attorney /s/ James B. Pinson CHRISTOPHER D. BOWERS Texas Bar No. 02731300 chris.bowers@dallascityhall.com JAMES B. PINSON Texas Bar No. 16017700 james.pinson@dallascityhall.com JENNIFER C. WANG Texas Bar No. 24049537 jennifer.wang@dallascityhall.com Assistant City Attorneys Dallas City Attorney’s Office 1500 Marilla Street, Room 7DN Dallas, Texas 75201 Telephone: (214) 670-3519 Telecopier: (214) 670-0622 ATTORNEYS FOR THE CITY OF DALLAS

At most, the Ordinance is underinclusive because it does not apply to building signs (regulated elsewhere in the City Code). But the relationship between the sign restrictions and safety does not change merely because the Ordinance is underinclusive. See Brewster v. City of Dallas, 703 F. Supp. 1260, 1265 (N.D. Tex. 1988) (citations omitted).

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CERTIFICATE OF SERVICE I hereby certify that on April 17, 2013, I electronically filed the foregoing document with the clerk of the court for the United States District Court, Northern District of Texas, using the electronic case filing system of the court. I hereby certify that I have served all counsel

electronically or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2) as indicated below: Via First-Class Mail Bruce Anton Sorrels, Udashen & Anton 2311 Cedar Springs Road, Suite 250 Dallas, Texas 75201 Via First-Class Mail Mary Margaret Penrose Texas Wesleyan School of Law 1515 Commerce Street Fort Worth, Texas 76102 Via First-Class Mail Anne Shuttee Law Office of Anne Shuttee 6060 North Central Expressway, Suite 560 Dallas, Texas 75206 COUNSEL FOR PLAINTIFFS /s/ James B. Pinson James B. Pinson

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