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Gbalazeh v. City of Dallas

United States District Court, N.D. Texas, Dallas Division

April 11, 2019

YVETTE GBALAZEH, et al., Plaintiffs,
v.
CITY OF DALLAS, TEXAS, a municipality of the State of Texas, Defendant.

          MEMORANDUM OPINION AND ORDER

          David C. Godbey United States District Judge

         This Order addresses Plaintiffs Yvette Gbalazeh, Lee Sunbury, and Fred Sims' application for preliminary injunction [64]. For the reasons set forth below, the Court denies Plaintiffs' motion with respect to their challenges to Sections 31-35 and 28-63.3 of the Code of Ordinances of the City of Dallas. The Court reserves judgement on Plaintiffs' challenge to Texas Transportation Code § 552.007 until after the Texas Attorney General has had an opportunity to intervene, pursuant to Federal Rule of Civil Procedure 5.1.

         I. Origins of the Dispute

         This case is about the enforcement of three panhandling laws in Dallas, Texas. The first two, Dallas Ordinances §§ 31-35 and 28-63.3, are the focus of this Order. Section 31-35 prohibits solicitation by coercion, after sunset, and in certain specified areas of the City. Section 28-63.3 prohibits solicitation of occupants of vehicles from public property adjacent to the roadway. Section 28-63.3 defines solicitation as, either orally or in writing, (1) asking for a ride, employment, goods, services, financial aid, monetary gifts, or any article representing monetary value, for any purpose; or (2) offering to sell something; or (3) giving away goods, services or publications; or (4) asking for signatures on a petition. Plaintiffs allege that they have been cited under either one or both of these ordinances, and that both violate their First Amendment rights.

         II. Legal Standards

         To obtain a preliminary injunction, Plaintiffs must establish:

(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.

Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). To succeed on the merits of a First Amendment challenge, Plaintiffs must first categorize the type of restriction. If it is content based, the regulation must satisfy strict scrutiny and be narrowly tailored to a compelling government interest. Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2227 (2015). If it is content neutral, the ordinance must only satisfy intermediate scrutiny. Int'l Soc. for Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d 494, 497 (5th Cir. 1989).

         III. The Court Denies Plaintiffs Injunctive Relief

         A. Section 31-35 Does Not Pose a Risk of Irreparable Injury

         Failure to grant an injunction against section 31-35 would not create a substantial risk of irreparable injury. A city's voluntary cessation of an allegedly unconstitutional practice “moots a case only when ‘it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.'” Blitch v. City of Slidell, 260 F.Supp.3d 656, 662 (E.D. La. 2017) (citing Friends of the Earth, Inc. v. Laidlaw Envtl Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)).

         Every indication is that the City has stopped, and does not plan to resume, enforcing section 31-35. On February 8, 2018, the Dallas Police Department (“DPD ”) issued a bulletin officially directing officers not to enforce section 31-35. App. to Pls.' Third Am. Class Action Compl. & Appl. for Prelim. Inj., [64-2], Ex. 21. Plaintiffs' evidence suggests that even before the bulletin, DPD had a practice of not enforcing section 31-35. Only one of the named Plaintiffs has ever been cited under section 31-35, and those citations were issued over ten years ago. Id., Ex. 18. Further, when Plaintiffs asked DPD about enforcement of solicitation laws, it responded by stating it only enforces sections 28-63.3 and 552.007, and made no mention of section 31-35. Id., Ex. 19.

         Accordingly, the Court holds that it is not reasonable to assume that DPD will resume enforcement of section 31-35. Because Plaintiffs have therefore not shown that failure to grant an injunction against section 31-35 will result in a substantial threat of irreparable injury, the Court denies injunctive relief as to this ordinance.

         B. Section 28-63.3 is Narrowly Tailored to a ...


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