Harmon v. City of Norman

981 F.3d 1141

Toby HARMON ; Shane Dodson; Tammi Dodson, Plaintiffs - Appellants,

v.CITY OF NORMAN, OKLAHOMA ; Jeff Robertson, in his individual capacity acting as a police officer for the City of Norman, Oklahoma; Does 1-5, Defendants - Appellees.

No. 18-6187

United States Court of Appeals, Tenth Circuit.

FILED December 7, 2020

David Markese, Chuluota, Florida (Frederick H. Nelson, American Liberties Institute, Orlando, Florida, on the brief), for Plaintiffs – Appellants.

Rickey J. Knighton II (Kristina L. Bell, with him on the brief), Assistant City Attorneys, Norman, Oklahoma, for Defendants – Appellees.

Before LUCERO, EBEL, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

In this 42 U.S.C. § 1983 action, Plaintiffs—three individuals who protest against abortion—challenge Norman, Oklahoma's disturbing-the-peace ordinance, on its face and as the City has applied it to them. The specific issue presented in this interlocutory appeal is whether the district court abused its discretion in refusing to enjoin the City from enforcing the ordinance against Plaintiffs during this litigation. Having jurisdiction under 28 U.S.C. § 1292(a)(1), we conclude that the district court did not abuse its discretion in denying Plaintiffs’ request for a preliminary injunction because they failed to show that they are substantially likely to succeed on the merits of their claims. We, therefore, AFFIRM.

I. BACKGROUND¹

The City's disturbing-the-peace ordinance, § 15-503, provides:

No person shall disturb the peace of another by:

(1) Violent, obstreperous, or improper conduct or carriage which in its common acceptance is calculated, or where the natural consequence is to cause an assault, battery or other breach of the peace;

(2) Unseemly, obscene, offensive, insulting or abusive language which in its common acceptance is calculated, or where the natural consequence is, to cause an assault, battery, or other breach of the peace;

(3) Playing or creating loud or unusual sounds;

(4) Circulating literature which casts ridicule upon any deity or religion, which in its common acceptance is calculated to cause an assault, battery, or other breach of the peace;

(5) Displaying any sign, emblem, badge, flag or other device, which in its common acceptance is calculated, or where the natural consequence is, to cause an assault, battery, or other breach of the peace.

(Aplt. App. 81.)

"The plaintiffs are individuals who, on religious and other grounds, are opposed to abortion." (Id. 103.) "For many years, Plaintiffs and their associates have attempted to share [their] message with signs, tracts and speaking to the general public in the Public Spaces of the City." (Id. 12 ¶ 49.) This includes "protest[ing] outside a Norman facility where a doctor performs abortions." (Id. 104.) During these protests, "Plaintiffs have occupied positions on public streets or sidewalks a relatively short distance (what appears to be 20-25 yards) from the entrances to the facility. From those vantage points, they verbally engage with persons entering the clinic, trying to persuade them to reject abortions." (Id. )

"Norman [police] officers have cited plaintiffs, or threatened to cite plaintiffs, for violation of the [City's disturbing-the-peace] ordinance when their protests were conveyed by loud speaker or other means of amplification which made their shouted comments audible inside the clinic." (Id. ) The citation a Norman police officer issued Harmon in March 2016, for example, charged that Harmon was "using a PA system and disrupting the business." (Id. 83.) The City eventually dismissed that citation "in the interest of justice." (Id. 85.) In October 2016, Defendant Robertson, a Norman police officer, threatened to cite Harmon if he used a "plastic hand-held cone" outside the clinic to amplify his voice. (Id. 13 ¶ 61.)

There is also evidence that the City has cited people for disturbing the peace under this ordinance based on loud yelling or screaming. For instance, in 2017, officers cited an individual (Katherine Robinson) who was outside the clinic for disturbing the peace when her screaming and yelling was heard inside the clinic. The City did not prosecute this citation, either. "There is also evidence that, on one occasion, officers cited plaintiff Harmon for violation of the ordinance based on him yelling at a person leaving the clinic and following them onto adjacent property." (Id. 104.)

Plaintiffs plan to continue their protests, but fear that, in doing so, they will be cited or arrested, and fined under the ordinance for disturbing the peace. Plaintiffs, therefore, initiated this litigation under 42 U.S.C. § 1983 against the City and one of its police officers, Jeff Robertson, as well as other unidentified John Doe officers, alleging Norman's disturbing-the-peace ordinance, on its face and as applied to Plaintiffs, violates their First Amendment rights to free speech and free exercise of religion, as well as their Fourteenth Amendment right to due process. As relief, Plaintiffs seek declaratory and injunctive relief, and damages.

Soon after filing this lawsuit, Plaintiffs moved for a preliminary injunction, asking the district court to enjoin the City from enforcing its disturbing-the-peace ordinance against them during the course of this litigation. After conducting a hearing, the district court denied that request, ruling Plaintiffs had failed to establish a substantial likelihood that they would prevail on the merits of their claims. Plaintiffs challenge that decision in this interlocutory appeal. See 28 U.S.C. § 1292(a)(1) (giving courts of appeal jurisdiction over interlocutory appeals from district court orders denying an injunction).

II. STANDARD OF REVIEW

We review the district court's decision to deny Plaintiffs a preliminary injunction for an abuse of discretion. See Mrs. Field's Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir. 2019).

"A district court's decision crosses the abuse-of-discretion line if it rests on an erroneous legal conclusion or lacks a rational basis in the record. As we review a district court's decision to grant or deny a preliminary injunction, we thus examine the court's factual findings for clear error and its legal conclusions de novo."

Id. at 1232–33 (quoting Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 796-97 (10th Cir. 2019) ).

A preliminary injunction is "an extraordinary remedy never awarded as of right," Benisek v. Lamone, ––– U.S. ––––, 138 S. Ct. 1942, 1943, 201 L.Ed.2d 398 (2018) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ); it is "the exception rather than the rule," United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888 (10th Cir. 1989). In order to obtain a preliminary injunction, Plaintiffs must show that (1) they are substantially likely to succeed on the merits of their claims, (2) they will suffer irreparable harm if the injunction is denied, (3) their threatened injury without the injunction outweighs any harm to the party opposing the injunction, and (4) the injunction, if issued, is not adverse to the public interest. See Mrs. Fields Franchising, 941 F.3d at 1232.

Addressing only the first requirement, the district court denied Plaintiffs a preliminary injunction, concluding they had not established a substantial likelihood that they will prevail on the merits of their claims. See generally Verlo v. Martinez, 820 F.3d 1113, 1126 (10th Cir. 2016) (noting that, "[i]n the First Amendment context, ‘the likelihood of success on the merits will often be the determinative factor’ because of the seminal importance of the interests at stake" (quoting Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc), aff'd, 573 U.S. 682, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) )). This is the issue we consider on appeal. In order to show a substantial likelihood of success on the merits, Plaintiffs had "to make a prima facie case showing a reasonable probability that [they] will ultimately be entitled to the relief sought." Automated Mktg. Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972).

III. DISCUSSION

A. Plaintiffs’ as-applied First Amendment claim

Plaintiffs’ primary claim is that Defendants violated the First Amendment by applying § 15-503(3)—prohibiting "disturb[ing] the peace of another by ... [p]laying or creating loud or unusual sounds"—to them.² In considering Plaintiffs’ motion for a preliminary injunction, the district court reasonably addressed this as-applied claim first. See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (indicating it is usually better to address an as-applied challenge before a facial overbreadth argument).

1. Parties’ burdens in response to Plaintiffs’ motion for a preliminary injunction

As an initial matter, we address the parties’ burdens pertaining to this as-applied First Amendment challenge to a time, place and manner restriction. While it is Plaintiffs’ burden, as the movants, to make a showing sufficient to justify a preliminary injunction, "the burdens at the preliminary injunction stage track the burdens at trial." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (citing Ashcroft v. Am. Civ. Liberties Union, 542 U.S. 656, 665-66, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) ). Here, then, Plaintiffs had the initial burden of showing that the First Amendment applies to their conduct. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 n.5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) ; see also Rodney A. Smolla, 1 Smolla & Nimmer on Free Speech § 8:49 (updated Oct. 2020). The City concedes that it does.

The burden then shifted to the City, as the proponent of the challenged regulation, to establish the validity of applying § 15-503(3) to Plaintiffs. See Gonzales, 546 U.S. at 429-30, 126 S.Ct....