Bush Library Protest Suit Response

DEFENDANT’S BRIEF IN RESPONSE TO PLAINTIFFS’

MOTION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTION

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, § 3:13-cv-1479-P

§

v. §

§ ECF

CITY OF DALLAS, §

§

Defendant. §



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.)

Case 3:13-cv-01479-P Document 6 Filed 04/17/13 Page 1 of 10 PageID 47



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.

2 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.




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.




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




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




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

3 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.




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




(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. § 51A-

7.101(b)(4).

The Ordinance addresses signage held and displayed by individuals, who, standing at street-

level 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




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

[email protected]

JAMES B. PINSON


[email protected]

JENNIFER C. WANG


[email protected]

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

4 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).




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


Case 3:13-cv-01479-P Document 6-1 Filed 04/17/13 Page 1 of 2 PageID 57

Bush Library Protest Suit Response

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