Jacksonville v. City of Jacksonville

OCCUPY JACKSONVILLE,ZACHARY ADDAIR, ETHANBOX, and KRISTIAN GORE, Plaintiffs,

v.CITY OF JACKSONVILLE, Defendant.

Case No. 3:11-cv-01264-J-37MCR

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

Date: April 16, 2012

ORDER

This cause is before the Court on the following:

1. The Court's Order to Show Cause (Doc. No. 24), entered on March 12, 2012;

2. Unopposed Motion to Amend Complaint with Incorporated Memorandum of Law (Doc. No. 25), filed on March 15, 2012;

3. Statement of Cause Regarding Justiciability (Doc. No. 26), filed on March 15, 2012; and

4. Defendant, the City of Jacksonville's, Response in Opposition to Plaintiffs' Motion to Amend Complaint (Doc. 25) and "Statement of Cause Regarding Justiciability" (Doc. 26) (Doc. No. 27), filed on March 21, 2012.

BACKGROUND

Occupy Jacksonville ("Occupy"), Zachary Addair, Ethan Box, and Kristian Gore (collectively, "Plaintiffs") filed this action on December 27, 2011. Plaintiffs seek declaratoryrelief, injunctive relief, and compensatory damages pursuant to 42 U.S.C. § 1983 for "ongoing and threatened injury to the First, Fourth, and Fifth Amendment rights of individuals and an unincorporated association engaged in lawful expressive activity within the City of Jacksonville, Florida." (Id. at ¶ 1.) They assert facial challenges against the constitutionality of several provisions of the Ordinance Code of the City of Jacksonville, Florida ("Code"). (Id. at ¶ 3.) Plaintiffs also challenge the Code's application to their demonstrations outside City Hall and the use of the City's police powers to "suppress, squelch or chill" their "rights to political expression and to petition the government for redress of grievances." (Id.)

A. The Occupy Jacksonville Movement

Occupy is a "grassroots, local organization formed in solidarity with the Occupy Wall Street movement." See Occupy Jacksonville Announces the End of the 24-7 Occupation, http://occupy-jax.org/news (last visited Apr. 13, 2012). Plaintiffs describe the group as an "unincorporated association¹ of individuals" who are "imminently concerned about the current status of the country's political and economic system" and direction who have "spontaneously gathered to bring visibility to the institutional corruption of the political system, namely the influence of private money on the political system and process at all levels of government." (See Doc. No. 1, ¶ 13.) The coalition's "core purpose" is "to bring awareness to and foster the tools for education and change to address its concerns about the U.S. political process and economic policies through symbolic 'occupation' of public space." (Id.)

On or about November 5, 2011,² Occupy began "an around-the-clock vigil outside of City Hall." (Id. at ¶ 15.) They maintained a continuous 24-hour, 7-day-a-week ("24/7") presence on the sidewalk in front of Jacksonville's City Hall. Occupy's members sat in folding chairs on the sidewalk, held and displayed handmade signs and posters, sometimes wrote messages in chalk on the sidewalk, and at times played loud music. (See Doc. No. 27, p. 2.) The group also erected "literature displays" on long tables they brought to the protest site, and kept large, plastic storage containers, tarps, and other miscellaneous items at the site. (See id. )

"During the first few days of the vigil, deputies of the Jacksonville Sheriff's Office ("JSO") distributed to protestors a copy of Code Section 614.138 with the definition of camping and the prohibition against sleeping, camping, lodging, or lying in public emphasized." (Doc. No. 1, ¶ 17.) Although protestors "had not been sleeping on site," they were keeping "literature" in a tent to protect it "from the elements" and made "coffee and tea at the protest site." (Id.) After the JSO presented them with copies of the ordinance, they removed the tent and stopped making tea and coffee. (See id.)

B. The Demand Letter

On December 22, 2011, the City's Deputy General Counsel, Howard M. Multz, "hand-delivered" a letter (the "Demand Letter") to the protest site. (Id. at ¶ 19; id. at p. 11.) The Demand Letter informed Occupy that protest signs displayed "in the right of way oron city property [would be] subject to confiscation and the owner of such signs [would be] subject to civil sanctions and/or other enforcement." (Id. at ¶ 20; id. at p. 11.) The letter also informed the protestors that the items they were storing on the sidewalk in front of City Hall created a safety hazard and violated Section 614.138 of the Code. (Id. at p. 11.)

After receiving the Demand Letter, Plaintiffs filed their Complaint (Doc. No. 1), a Motion for Temporary Restraining Order (Doc. No. 2), and an Emergency Motion for Preliminary Injunction and Request for Expedited Hearing (Doc. No. 3) on December 27, 2011. Later that day, the City of Jacksonville's General Counsel, Cindy A. Laquidara, sent Occupy's counsel a letter in which she "clarified" an "apparent misunderstanding" between Occupy and the City "with regard to the Demand Letter." (Doc. No. 22, p. 5.) She informed Plaintiffs that the City "had no immediate intention to remove signs or personal belongings from the front of City Hall and had intended merely to notify Occupy . . . that enforcement procedure would begin." Id.

C. The January 19th Letter

A few weeks later, on January 19, 2012, Ms. Laquidara sent Plaintiffs a more comprehensive letter, addressing the allegations in their Complaint (the "January 19th Letter"). (See Doc. No. 22, pp. 6-7.) She informed them that Section 656.1333(k) was inapplicable to their conduct, and that "if a sign would be legal [under Section 656.1315] if it were a business sign, then it would be considered legal regardless of the content of its message so long as the message was protected First Amendment speech, (i.e., not, for example, obscene)." (See Doc. No. 22, pp. 6-7.)

The City did, however, continue to consider Occupy to be in violation of Section 614.138 of the Code, which prohibits "camping in the designated 'Urban CoreEnhancement Area,' " in which City Hall is located. (Id. at p. 6.) The letter stated that Plaintiffs were "violating this ordinance, as would any group delivering any message irrespective of their viewpoint should that group sleep, camp, lodge, or lie on public property." (Id.)

D. The End of the 24/7 Protest

On Saturday, March 3, 2012, Occupy voluntarily ended its 24/7 protest. (Id. at Ex. A.)³ According to the most recent posting in the "News" Section of the Occupy website, "[t]he decision [to end the occupation] was reached at the General Assembly held on Saturday, March 3rd, as an overwhelming majority of Occupy Jacksonville members felt that it was time for Occupy Jacksonville to evolve to a new stage in [the] struggle for political, social and economic justice." See Occupy Jacksonville Announces the End of the 24-7 Occupation, http://occupy-jax.org/news (last visited Apr. 13, 2012) (emphasis added).

On March 12, 2012, after learning that the protesters were no longer present outside City Hall and that Occupy had decided to cease its "occupation" of the sidewalk, the Court entered an Order sua sponte, directing Plaintiffs to show cause why this action should not be dismissed for lack of a case or controversy. (Doc. No. 24.) They responded on March 15, 2012, arguing that a case or controversy remains despite their decision to cease the 24/7 protest. Plaintiffs also filed a Motion to Amend Complaint (Doc. No. 25) at that time.⁴ Shortly thereafter, the City filed its Response to the Motion to Amend (Doc. No. 27), in which it asserts that there is no longer a justiciable case or controversy ripe for judicial review.

APPLICABLE LAW

"Standing and ripeness present the threshold jurisdictional question of whether a court may consider the merits of a dispute." Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006) (Elend II). "The [ripeness doctrine] deals with when a party can seek pre-enforcement review: 'whether there is sufficient injury to meet Article III's requirement of a case or controversy and, if so, whether the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decision-making by the court.' " Id. at 1210-11 (citing Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997) (quoting Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995)). The issue of ripeness originates from the Constitution's Article III requirement that in order for a federal court to have jurisdiction to hear a case, there must exist an actual case or controversy. Id. at 1204-05; Constitution Art. III, § 2, cl. 1. This jurisdictional limitation "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded." Allen v. Wright, 468 U.S. 737, 750 (1984). For federal subject matter jurisdiction to exist, a real case or controversy must exist throughout the litigation. Chiles v. Thornburgh, 865 F.2d 1197, 1202 (11th Cir. 1989).

A justiciable controversy "must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversyadmitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. of Hartford, Connecticut v. Haworth, 300 U.S. 227, 240-41 (1937) (citations omitted). To determine whether an anticipatory challenge to government action is justiciable, the court must ask "whether the plaintiff is seriously interested in disobeying, and the defendant is seriously intent on enforcing the challenged measure." Int'l Soc. for Krishna Consciousness of Atl. v. Eaves, 601 F.2d 809, 818 (5th Cir. 1979). "Federal courts lack subject matter jurisdiction where intervening events in an action render the claims moot." United States v. DeKalb Cnty., Ga., No. 1:10-cv-403, 2011 WL 6369569, at *5 (N.D. Ga. Oct. 11, 2011) (...