Temporary Restraining Order Denial Regarding SDMC 54.0110

Citizens Oversight (2011-12-01)

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TRO_denied.pdf: Ruling by the court regarding request for TRO on SDMC54.0110

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

EUGENE DAVIDOVICH, an individual;
DAVINA LYNCH, an individual; and
JOHN KENNEY, an individual,
Plaintiffs,

vs.
CITY OF SAN DIEGO,
Defendant.

CASE NO. 11cv2675 WQH-NLS
ORDER

HAYES, Judge:
The matter before the Court is the Ex Parte Application for Temporary Restraining
Order filed by Plaintiffs Eugene Davidovich, Davina Lynch, and John Kenney. (ECF No. 7).

I. Background
On November 16, 2011, Plaintiffs Eugene Davidovich, Davina Lynch, and John Kenney
initiated this action by filing a “Complaint for Temporary Restraining Order, Preliminary
Injunction, Permanent Injunction and Declaratory Relief” against the City of San Diego. (ECF
No. 1). The Complaint asserts two claims titled: “Injunctive Relief” and “Declaratory Relief”
and alleges that San Diego Municipal Code section 54.0110 titled “Unauthorized
Encroachments Prohibited” which provides: “It is unlawful for any person to erect, place,
allow to remain, construct, establish, plant, or maintain any vegetation or object on any public
street, alley, sidewalk, highway, or other public property or public right-of-way....” is
unconstitutional. Id. at 2-3. Plaintiffs seek “a declaration that [San Diego Municipal Code]

section 54.0110 is void for vagueness and overbreadth” and an injunction “prohibiting
Defendant and its agents or employees from enforcing [San Diego Municipal Code] section
54.0110.” Id. at 3-4. The declarations attached to the Complaint state that Plaintiffs are
members of the Occupy San Diego movement, which is “a protest in solidarity with the
Occupy Wall Street movement for economic and social justice” being held at the Civic Center
Plaza in downtown San Diego. (ECF No. 1-1 at 2; 1-5 at 1; 1-6 at 1). Plaintiffs allege that
the “police sometimes choose to enforce section 54.0110 very strictly, requiring that no one
entering Civic Center Plaza place any object on the ground, particularly when members of the
protest group ‘Occupy San Diego’ enter the Plaza. On other occasions or with respect to other
individuals, the police allow objects to be placed on the ground.” (ECF No. 1 at 3). Plaintiffs
allege that the “ordinance has a chilling effect on free expression ....” Id.

On November 17, 2011, Plaintiffs filed an Ex Parte Application for Temporary
Restraining Order. (ECF No. 7). On November 18, 2011, Defendant City of San Diego filed
an Opposition to the Ex Parte Application for Temporary Restraining Order. (ECF No. 18).
On November 21, 2011, Plaintiffs filed a Reply. (ECF No. 23).

On November 21, 2011, the Court heard oral argument on the Ex Parte Application for
Temporary Restraining Order. At oral argument, Plaintiffs stated that they assert a facial
challenge to San Diego Municipal Code section 54.0110 in the Ex Parte Application for
Temporary Restraining Order and Plaintiffs reserved the right to bring an as-applied challenge.

II. Discussion
When the nonmovant has received notice, as here, the standard for issuing a temporary
restraining order is the same as that for issuing a preliminary injunction. See Stuhlbarg Int’l
Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “[A] preliminary
injunction is an extraordinary and drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520
U.S. 968, 972 (1997) (quotation omitted). To obtain preliminary injunctive relief, a movant
must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20
(2008); see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)
(“[S]erious questions going to the merits and a balance of hardships that tips sharply towards
the plaintiff can support issuance of a preliminary injunction....”).

A. Success on the Merits
Plaintiffs seek “a temporary restraining order enjoining the City of San Diego and its
agents and employees from enforcing [San Diego Municipal Code] section 54.0110.” (ECF
No. 7-1 at 5). Plaintiffs contend that the general application of San Diego Municipal Code
section 54.0110 by City officials infringes their First Amendment right to free speech.
Plaintiffs contend that San Diego Municipal Code section 54.0110 is void for vagueness in
violation of the Due Process Clause of the Fourteenth Amendment.

Defendant contends that San Diego Municipal Code section 54.0110 is a constitutional,
content neutral, reasonable time, place, and manner restriction narrowly tailored to advance
the substantial interests of “protecting the public’s health, safety and welfare, protecting the
City’s properties from damage, overuse, and unsanitary conditions, and maintaining the City’s
public areas as right-of-ways, free of obstructions and clutter, open for the use and enjoyment
of the public.” (ECF No. 18 at 8).

A party presents a facial challenge to the constitutionality of an ordinance when the
party challenges the general application of the ordinance. See Doe v. Reed, _ U.S._, 130
S.Ct. 2811, 2817 (2010) (“[A] claim is ‘facial’ in that it is not limited to plaintiffs’ particular
case, but challenges application of the law more broadly to all [similar plaintiffs]”); Jerry
Beeman & Pharm. Serv., Inc. v. Anthem Prescription Mgmt, LLC, 652 F.3d 1085, 1097 (9th
Cir. 2011) (a party alleges a facial challenge when the party alleges that the statute is
unconstitutional “against whomever it is enforced” rather than “only as applied in the context
of plaintiffs’ suit.”). “A successful challenge to the facial constitutionality of a law invalidates
the law itself.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). Facial
challenges to statutes may be made on First Amendment grounds “where statutes, by their
terms, purport to regulate the time, place, and manner of expressive or communicative

conduct.” Broadrick v. Oklahoma, 413 U.S. 601, 612-13 (1973) (citations omitted); see also
Roulette v. City of Seattle, 97 F.3d 300, 303 (9th Cir. 1996).
The First Amendment precludes the enactment of laws “abridging the freedom of
speech.” U.S. Const. amend. I. The First Amendment protects literal speech as well as some
expressive or communicative conduct. Spence v. Wash., 418 U.S. 405, 409 (1974). Expressive
or communicative conduct is entitled to First Amendment protection where it is “sufficiently
imbued with elements of communication.” Id.; see also Clark v. Cmty for Creative
Non-Violence, 468 U.S. 288, 294 (1984) (finding that camping on park lands, including “the
use of park lands for living accommodations, such as sleeping, storing personal belongings,
making fires, digging, or cooking ... may be expressive and part of the message delivered by
the demonstration [regarding homelessness].”) (citations omitted) (emphasis added). For the
purpose of this Ex Parte Application for Temporary Restraining Order, the Court presumes that
San Diego Municipal Code section 54.0110 restricts expressive or communicative conduct.
See Clark, 468 U.S. at 294.

i. Reasonable Time, Place, and Manner Restriction
Defendant contends that San Diego Municipal Code section 54.0110 is content neutral
and serves significant government interests in “protecting the public’s health, safety and
welfare, protecting the City’s properties from damage, overuse, and unsanitary conditions, and
maintaining the City’s public areas as right-of-ways, free of obstructions and clutter, open for
the use and enjoyment of the public.” (ECF No. 18 at 8). Defendant contends that San Diego
Municipal Code section 54.0110 is narrowly tailored because it does not preclude Plaintiffs
from communicating their message.

“Expression, whether oral or written or symbolized by conduct, is subject to reasonable
time, place, or manner restrictions.” Clark, 468 U.S. at 294. The restriction must be content
neutral. Id. “[W]hether a statute is content neutral or content based is something that can be
determined on the face of it ....” G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1071
(9th Cir. 2006) (quotation omitted). Legislation is not content neutral where it “singles out
certain speech for differential treatment based on the idea expressed.” A.C.L.U. of Nevada v.

City of Las Vegas, 466 F.3d 784, 794 (9th Cir. 2006) (citing Foti, 146 F.3d at 636 n.7).

The reasonable time, place, or manner restriction must be “narrowly tailored to serve
a significant governmental interest, and ... leave open ample alternative channels for
communication of the information.” Clark, 468 U.S. at 293-94 (quotation omitted); see also
Doe v. Reed, 586 F.3d 671, 678 (9th Cir. 2009) (content neutral restrictions with an “incidental
effect” on expressive conduct must survive intermediate scrutiny) (citing United States v.
O’Brien, 391 U.S. 367, 376 (1968)); Jacobs v. Clark County Sch. Dist., 526 F.3d 419, 434 (9th
Cir. 2008)). The regulation “need not be the least restrictive or least intrusive means,” so long
as the regulation does not “burden substantially more speech than is necessary” to achieve the
significant government interest. Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989).

In Clark, the Supreme Court considered whether a content neutral restriction against
camping in public parks, preventing individuals from sleeping in tents to protest homelessness,
was a reasonable time, place, and manner restriction. The Court found that the government
had a substantial interest in maintaining public parks “in an attractive and intact condition” as
well as ensuring that public parks remain readily available to other members of the public.
Clark, 468 U.S. at 296. The Court found that restricting camping on public property was
narrowly tailored and that “using these areas as living accommodations would be totally
inimical to these purposes....” Id. The Court concluded that the ban on sleeping in the public
park was a reasonable time, place, and manner restriction. Id.; see also Lubavitch Chabad
House, Inc. v. City of Chicago, 917 F.2d 341, 347 (7th Cir. 1990) (holding that there is no
“private constitutional right to erect a structure on public property. If there were, our
traditional public forums, such as our public parks, would be cluttered with all manner of
structures.”).

In this case, the prohibition against unauthorized encroachments in San Diego
Municipal Code section 54.0110 is content neutral because it does not single out any type of
speech or provide differential treatment based on the idea expressed. San Diego Municipal
Code section 54.0110 serves significant government interests in protecting the public’s health,
safety, and welfare; maintaining public property; and ensuring that the public space is free of

obstructions and is available for the use and enjoyment of members of the public. San Diego
Municipal Code section 54.0110 is narrowly tailored because it is limited to proscribing
intrusion upon the maintenance, use, and enjoyment of public space. San Diego Municipal
Code section 54.0110 allows ample alternative channels for communication and does not
preclude Plaintiffs from communicating their message.

Based on the record, the Court concludes that San Diego Municipal Code section
54.0110 is a content neutral, reasonable time, place, and manner restriction which is narrowly
tailored to serve a significant governmental interest and leaves open ample alternative channels
for communication.

ii. Overbroad
Plaintiffs contend that San Diego Municipal Code section 54.0110 is overbroad on the
grounds that it “sweeps unnecessarily broadly and thereby invades areas of protected
freedoms.” (ECF No. 7-1 at 5). Plaintiffs contend that San Diego Municipal Code section
54.0110 “has a chilling effect on free expression in that individuals are often not permitted to
even place protest signs down next to where they are standing[]” and that the ordinance
“prohibits not only the placement of First Amendment protected literature tables, but any other
object on any city property.” Id. (emphasis omitted) (citing A.C.L.U. of Nevada v. City of Las
Vegas, 466 F.3d 784, 791-99 (9th Cir. 2006)).

Plaintiff Davidovich has submitted a declaration in which he states that he entered the
Civic Center Plaza with a three-gallon bucket containing a tomato plant that had a protest sign
and an American flag affixed to it. Davidovich states that he sat down on the steps of the plaza
and placed the plant beside him when he was approached by a police officer who told him to
pick up the plant. Plaintiff Kenney has submitted a declaration in which he states that he was
told by a police officer that he could not put his bag, jacket, or backpack down in the Civic
Center Plaza and that he was told to pick a sign up from the ground while he was writing on
it. Plaintiff Lynch has submitted a declaration in which she states that a police officer
informed her that she could not place any object down in the Civic Center Plaza. Plaintiffs
have also submitted declarations from individuals who are not parties to this case who state

that police officers told them that they could be arrested for putting their crutches and a purse
on the ground.

Defendant contends that enforcement of San Diego Municipal Code section 54.0110
“is limited to those persons who attempt to and/or do erect or leave objects unattended on
public property on a permanent, indefinite, or otherwise clearly non-temporary basis, i.e., when
there is some degree of permanence to the encroachment.” (ECF No. 18 at 12-13). Defendant
contends that San Diego Municipal Code section 54.0110 prevents unsanitary and unsafe
conditions in public places. Defendant contends that San Diego Municipal Code section
54.0110 does not prevent individuals from demonstrating or otherwise engaging in speech
activities; it prevents individuals from “camping and storing their personal property in a public
place.” Id. at 13.

“In a facial challenge to the overbreadth ... of a law, a court’s first task is to determine
whether the enactment reaches a substantial amount of constitutionally protected conduct.”
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). If the
law reaches activity protected by the First Amendment, “a law may be invalidated as overbroad
if a substantial number of its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” United States v. Stevens, _ U.S. _, 130 S. Ct. 1577, 1587
(2010) (quotations omitted). To succeed in their challenge of the ordinance based on
overbreath, Plaintiffs must “demonstrate [overbreath] from the text of [the ordinance] and from
actual fact that a substantial number of instances exist in which the [ordinance] cannot be
applied constitutionally.” N.Y. State Club Ass’n v. City of N.Y., 487 U.S. 1, 14 (1988).
“Invalidation for overbreadth is strong medicine that is not to be casually employed.” United
States v. Williams, 553 U.S. 285, 293 (2008) (quotations and citations omitted).

In A.C.L.U. of Nevada, plaintiffs brought a facial challenge and an as-applied challenge
to a content-based restriction on solicitation, a traditional form of free speech, in a public
forum. The Court of Appeals for the Ninth Circuit held that the content-based restriction on
certain types of solicitation was a facially unconstitutional regulation of speech protected by
the First Amendment. A.C.L.U. of Nevada, 466 F.3d at 797. Plaintiffs also challenged a

restriction on the use of tables to aid in solicitation. The Court of Appeals held that “the
erection of tables in a public forum is expressive activity protected by our Constitution to the
extent that the tables facilitate the dissemination of First Amendment speech.” Id. at 799. The
Court of Appeals stated: “We express no view as to whether the tabling ordinance would be
a constitutionally invalid restriction on the time, place, and manner of Plaintiffs’ free speech
in a traditional public forum in the absence of the [content-based] labor exemption.” Id. at 800
n.18. The Court of Appeals declined to hold that the tabling ordinance was facially
unconstitutional. Id. at 800 (“Although the record is sufficiently clear for us to hold that the
tabling ordinance is unconstitutional as applied to Plaintiffs’ expressive activities, nothing in
the record indicates that tables are used in the [public forum] for expressive purposes with
enough frequency to support Plaintiffs’ facial challenge to the ordinance.”) (emphasis added).

In this case, Plaintiffs make only a facial challenge and have reserved the right to make
an as applied challenge. San Diego Municipal Code section 54.0110 has the “plainly
legitimate sweep” of protecting the public’s health, safety and welfare; maintaining public
property; and ensuring that the public space is free of obstructions and available for the use and
enjoyment of members of the public. Stevens, 130 S. Ct. at 1587. The conduct targeted by the
ordinance relates to the maintenance, use, and enjoyment of public space and is not
constitutionally protected. See Village of Hoffman Estates, 455 U.S. at 494. To the extent that
the ordinance may restrict expressive conduct, Plaintiffs have failed to show that there are a
“substantial number of instances in which the [ordinance] cannot be applied constitutionally”
in relation to its “plainly legitimate sweep.” Stevens, 130 S. Ct. at 1587; N.Y. State Club Ass’n,
487 U.S. at 14. The Court finds that Plaintiffs have failed to show that they are likely to
succeed on the merits of their claim that San Diego Municipal Code section 54.0110 is facially
unconstitutional as overbroad.

iii. Vagueness
Plaintiffs contend that San Diego Municipal Code section 54.0110 is impermissibly
vague on the grounds that “it does not define a criminal offense with sufficient certainty so that
ordinary people can understand what conduct is prohibited, and it encourages arbitrary and

discriminatory enforcement.” (ECF No. 7-1 at 4). Plaintiffs contend that San Diego Municipal
Code section 54.0110 “fails to establish standards for the police and public that are sufficient
to guard against the arbitrary deprivation of liberty interests and fails to give fair notice of what
acts will be punished so that First Amendment rights are chilled.” Id.

Defendant contends that San Diego Municipal Code section 54.0110 defines the
prohibited conduct in a manner which can be understood by people of ordinary intelligence
because the ordinance “uses common terms found in the English dictionary.... [and] lists a
number of words or phrases having similar meanings.” (ECF No. 18 at 10). Defendant
contends that “when read together, in context, and based on human experience,” the ordinance
gives the reader fair warning regarding the proscribed conduct and provides sufficient guidance
to the police for enforcement. Id.

A statute is void for vagueness where a person of “common intelligence must
necessarily guess at its meaning and differ as to its application....” Connally v. General Const.
Co., 269 U.S. 385, 391 (1926). However, “the Constitution does not require impossible
standards; all that is required is that the language conveys sufficiently definite warning as to
the proscribed conduct when measured by common understanding and practices.” Roth v.
United States, 354 U.S. 476, 491 (1957) (quotations omitted); see also U.S. Civil Serv.
Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-79 (1973). “[T]he
void-for-vagueness doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v.
Lawson, 461 U.S. 352, 357 (1983) (citation omitted). In Kolender, the Supreme Court
explained:

Although the doctrine focuses on both actual notice to citizens and arbitrary
enforcement, we have recognized recently that the more important aspect of the
vagueness doctrine is not actual notice, but the other principal element of the
doctrine-the requirement that a legislature establish minimal guidelines to
govern law enforcement.

Kolender, 461 U.S. at 357-58 (quotations and citation omitted).

An ordinance that does not implicate constitutionally protected conduct is void for

vagueness only where it “is impermissibly vague in all of its applications.” Village of Hoffman
Estates, 455 U.S. at 495. However, an ordinance that “reaches a ‘substantial amount of
constitutionally protected conduct[]’” may be void for vagueness even where it is not vague
in all applications. Nunez v. City of San Diego, 114 F.3d 935, 940 (9th Cir. 1997) (quoting
Kolender, 461 U.S. at 359 n.8). “The need for definiteness is greater when the ordinance
imposes criminal penalties on individual behavior or implicates constitutionally protected
rights than when it regulates the economic behavior of businesses.” Nunez, 114 F.3d at 940.
San Diego Municipal Code section 54.0110 is titled “Unauthorized Encroachments
Prohibited” and provides: “It is unlawful for any person to erect, place, allow to remain,
construct, establish, plant, or maintain any vegetation or object on any public street, alley,
sidewalk, highway, or other public property or public right-of-way, except as otherwise
provided by this Code.” S.D. Mun. Code § 54.0110. San Diego Municipal Code section
11.0209 provides that “[w]ords and phrases ... shall be construed according to the context and
approved usage of the language.” S.D. Mun. Code § 11.0209(e).

The need for definiteness is present in this case because the Court has presumed that the
ordinance implicates constitutionally protected conduct. When considering the ordinary
meaning of the terms encroach, erect, place, remain, construct, establish, plant, and maintain,[1]
as well as their use in conjunction with each other, the ordinance plainly prohibits individuals
from using vegetation or objects to interfere with the maintenance, use, and enjoyment of
public property. The ordinance makes it unlawful for a person to “erect, place, allow to
remain, construct, establish, plant, or maintain any vegetation or object” upon public property
in order to advance substantial government interests in protecting the public’s health, safety

and welfare; maintaining public property; and ensuring that the public space is free of
obstructions and is available for the use and enjoyment of members of the public. S.D. Mun.
Code § 54.0110. The ordinance proscribes easily identifiable conduct which directly advances
the public interest. The Court concludes that the ordinance provides adequate guidelines to
govern law enforcement and to avoid the potential for arbitrarily suppressing First Amendment
liberties.2 See Kolender, 461 U.S. at 357. The Court finds that Plaintiffs have failed to show
that they are likely to succeed on the merits of their claim that San Diego Municipal Code
section 54.0110 is facially void for vagueness.

B. Irreparable Injury, Balancing of Hardships, Public Interest
“When ... a party has not shown any chance of success on the merits, no further
determination of irreparable harm or balancing of hardships is necessary.” Global Horizons,
Inc. v. United States Dep’t of Labor, 510 F.3d 1054, 1058 (9th Cir. 2007) (explaining that “this
rule applies with equal force to the public interest.”). A determination of irreparable harm,
balancing of the hardships, or public interest is not necessary at this stage of the proceedings
because the Court finds that Plaintiffs have failed to show a likelihood of success on the merits.

III. Conclusion
IT IS HEREBY ORDERED that the Ex Parte Application for Temporary Restraining
Order filed by Plaintiffs Eugene Davidovich, Davina Lynch, and John Kenney (ECF No. 7)
is DENIED.

DATED: December 1, 2011
WILLIAM Q. HAYES
United States District Judge

The dictionary defines encroach as: “to enter by gradual steps or by stealth into the
possessions or rights of another” or “to advance beyond the usual or proper limits.” Webster’s
II New College Dictionary, 371 (2001). The definition of erect is “to construct by assembling
materials and parts” or “to assemble or set up.” Id. at 381. The definition of place is “to put
in a particular position.” Id. at 841. The definition of remain is “to continue without change
of condition, quality, or place” or “to stay or be left over after removal, departure, loss, or
destruction of others.” Id. at 937. The definition of construct is “to put together by assembling
parts.” Id. at 242. The definition of establish is “to make secure or firm.” Id. at 384. The
definition of plant is “to place or set (e.g., seeds) in the ground to grow.” Id. at 843. The
definition of maintain is “to continue: carry on” or “to keep in existence.” Id. at 660.

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