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Case 3:13-cv-01479-P Document 12 Filed 04/19/13 Page 2 of 12 PageID 101 (“Expressway Tower”) located at 6116 Central Expressway. 1 Although this space lies on the east side of the Central Expressway, the proposed protest area affords Plaintiffs a direct line of sight to the Bush Center. 2 This location is important to Plaintiffs because the planned demonstrations are being held in connection with the events surrounding the dedication of the Bush Center. Order 3:13-CV-1479-P Page 2 of 12 In planning for their protest activities at Expressway Tower, Plaintiffs contacted the Dallas Police Department in order to verify that their conduct would not subject them to citation or other sanction. Members of the Dallas Police Department informed Plaintiffs that holding any sign on the sidewalk at or near Expressway Tower would constitute a violation of Section 28- 158.1 of the Dallas City Code (“the Ordinance”). The Ordinance states: A person commits an offense if he carries or otherwise displays a sign 3 on, over, or within 75 feet of the roadway of any of the following streets or highways in a manner intended to attract the attention of vehicle occupants on those streets or highways. 4 Dallas, Tex., Code § 28-158.1(b). In particular, Plaintiffs learned that they would be issued a citation if they held signs within seventy-five feet or less of the access road running northbound on the Central Expressway. Dallas police officers further noted that Plaintiffs would be able to hold signs in protest so long as they stood more than seventy-five feet from the access road, which would place them at or near the parking lot of Expressway Tower, rather than on the sidewalk adjacent to the Central Expressway access road. 1 Central Expressway is a locally-known alternative name for certain portions of U.S. 75. 2 Several streets and roads on the west side of central expressway near the Bush Center will be inaccessible during its opening due to either security concerns or crowd-control. 3 The Ordinance defines a sign as “any device, flag, light, figure, picture, letter, word, message, symbol, plaque, poster, or other thing that is designed, used, or intended to advertise or inform.” Dallas, Tex., Code § 28-158.1(a). 4 The Ordinance contains a specifically enumerated list of highways to which it applies, including Central Expressway. Dallas, Tex., Code § 28-158.1(b).
Case 3:13-cv-01479-P Document 12 Filed 04/19/13 Page 3 of 12 PageID 102 Order 3:13-CV-1479-P Page 3 of 12 On April 11, 2013, Plaintiffs filed suit against Defendant City of Dallas (“the City”) and sought a Temporary Restraining Order and Preliminary Injunction declaring the Ordinance unconstitutional on its face and as applied to Plaintiffs. Following the City’s removal of this action on April 16, 2013, the Court expedited the briefing on the preliminary injunction and held a hearing on April 18, 2013. II. Jurisdiction In a separately filed Motion, Plaintiffs have moved to remand this matter to state court, arguing that the City improperly removed from state court. (Doc. 5.) A defendant may remove a suit from state court to federal court only if the action could have originally been filed in federal court. 28 U.S.C. § 1441(a). In this case, the City filed a Notice of Removal and claimed that federal question jurisdiction arises from Plaintiff’s cause of action under 42 U.S.C. § 1983. (Doc. 1 at 5-6.) The Court finds that this is an adequate showing so as to confer jurisdiction of this First Amendment case. 5 III. Preliminary Injunction Federal Rule of Civil Procedure 65 provides that the Court may issue a preliminary injunction to restrain or require certain acts. For the grant of injunctive relief, a movant must demonstrate the following equitable factors: “(1) a substantial likelihood of success on the 5 Plaintiffs have also noted that they are defendants in an ongoing criminal trial in Dallas Municipal Court for previous violations of the Ordinance. (Doc. 5 at 2.) As part of this suit, Plaintiffs state that on January 21, 2013 they were engaged in “a peaceful rally in favor of the First Amendment at the intersection of Mockingbird Lane and Central Expressway.” (Doc. 1 at 17.) Plaintiffs state they were given citations under the Ordinance by members of the Dallas Police Department and were told they would be arrested if they did not lower or cover their signs. (Id.) Plaintiffs have raised a defense of the unconstitutionality of the Ordinance in the criminal proceedings. According to Plaintiffs, the City Municipal Judge is holding the criminal case in abeyance pending the outcome of this suit. As a result, Plaintiffs have asked the Court to abstain pursuant to Younger v. Harris, 401 U.S. 37 (1971). (Id. at 3.) In the instant ruling, the Court is ruling only on the Plaintiffs’ request for declaratory and injunctive relief regarding their planned activities in connection with the opening and dedication of the George W. Bush Library on April 22- 25, 2013. This Order expresses no opinion on the Ordinance regarding the citations given to Plaintiffs on January 21, 2013, as it occurred in a different location and was not a protest conducted in connection with the opening of the Bush Center.
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