United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
C. GODBEY, UNITED STATES DISTRICT JUDGE
Order addresses Plaintiffs Yvette Gbalazeh, Lee Sunbury, and
Fred Sims' application for preliminary injunction .
By previous Order, the Court denied 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 reserved judgement on Plaintiffs' challenge to
Texas Transportation Code § 552.007 (“section
552.007”) until after the Texas Attorney General had an
opportunity to intervene, pursuant to Federal Rule of Civil
Procedure 5.1. The sixty day period outlined in Rule 5.1(c)
has elapsed and the Attorney General has not intervened. The
Court thus has authority to rule on Plaintiffs' challenge
to section 552.007, and, for the reasons stated below, grants
Plaintiffs' motion and issues the Preliminary Injunction
filed contemporaneously with this Order.
Origins of the Dispute
case is about the enforcement of three panhandling laws in
Dallas, Texas. The Court addressed the first two, Dallas
Ordinances §§ 31-35 and 28-63.3, in its previous
Order. Now, it addresses the third: section 552.007. Section
552.007 prohibits a person standing in a roadway to solicit a
ride, contribution, employment, or business from an occupant
of a vehicle. The statute makes a single exception for
individuals that have gained the permission of local
government to solicit charitable contributions, i.e., local
fire departments' “fill the boot” campaigns.
Plaintiffs allege that they have been cited under section
552.007 and that it violates their First and Fourth Amendment
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).
The Court Grants Plaintiffs Injunctive Relief
Court holds that Plaintiffs are likely to succeed on the
merits of their First Amendment challenge to section 552.007.
A regulation “is content based if [it] applies to
particular speech because of the topic discussed or the idea
or message expressed.” Reed, 135 S.Ct. at
2227. Section 552.007 is a content based restriction. The
ordinance does not stop individuals from standing in the
roadway to advocate for a political campaign or church. But
once the speakers begin to offer or ask for something from
drivers, their speech runs afoul of section 552.007. Indeed,
of the various forms of protected speech, the statute picks
and prohibits only solicitation, and makes an explicit
exception for pre-approved charitable solicitations.
Accordingly, the Court holds that section 552.007 is a
content based restriction on speech.
552.007 also does not survive strict scrutiny. The Court
agrees with the City that traffic safety is a compelling
interest. See e.g. McLaughlin v. Lowell, 140
F.Supp.3d 177, 190-91 (D. Mass. 2015); City of Baton
Rouge, 876 F.2d at 497-98 (citing Heffron v.
Int'l Soc'y for Krishna Consciousness, Inc., 452
U.S. 640 (1981)). But the statute is not particularly well
structured to serve that interest. The Court denied
Plaintiffs' relief with respect to section 28-63.3
because solicitation from the side of the road is more
dangerous than any other form of speech from the same
location: if successful, solicitation necessarily draws the
individual into the roadway. But the same logic does not
apply with section 552.007. There is no reason to think that
solicitation from within the roadway is any more dangerous
than other forms of speech or pre-approved charitable
solicitations from within the roadway. Thus, section 552.007
is clearly under-inclusive. Accordingly, the Court holds that
section 552.007 is not narrowly tailored to fulfill a
compelling government interest. Plaintiffs are thus likely to
succeed on the merits of their First Amendment challenge to
have also shown a risk of irreparable injury. “The loss
of First Amendment freedoms, for even minimal amounts of
time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976). The Court
holds that section 552.007 poses a threat to Plaintiffs'
First Amendment rights. Thus, Plaintiffs have shown a threat
of irreparable injury.
light of this, the balance of harms tilts in favor of an
injunction. The City argues that preventing enforcement of
section 552.007 will render it unable to sufficiently protect
against traffic hazards. The Court disagrees. The City has
other laws it can use to protect against traffic hazards in
the interim that do not risk citing and arresting people
under a potentially unconstitutional law. See App.
to Pls.' Third Am. Class Action Compl. & Appl. for
Prelim. In., [64-2], Ex. 21.
the public interest, “it is always in the public
interest to prevent the violation of a party's
constitutional rights.” Simms v. District of
Columbia, 872 F.Supp.2d 90, 105 (D.D.C. 2012). The
enforcement of section 552.007 potentially violates First