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Case 3:13-cv-01479-P Document 12 Filed 04/19/13 Page 8 of 12 PageID 107 Order 3:13-CV-1479-P Page 8 of 12 Having examined both the Ordinance itself and the evidence presented at the preliminary injunction hearing, the Court preliminarily finds that ample support exists to permit a preliminary finding that the Ordinance is unconstitutionally vague and therefore void. First, the plain language of the Ordinance itself does not contain any reference to the terms access road or service road. 7 To support its position that the Ordinance includes service and access road portions of Central Expressway, the City has cited the General Provisions portion of the Dallas City Code, which defines a highway as: identified as: …any street, alley, highway, avenue or public place or square, bridges, viaducts, tunnels, underpasses, overpasses and causeways in the city, dedicated or devoted to public use. Dallas, Tex., Code § 1-5. Further confusing the issue is the Dallas City Code’s definition of a roadway, which is …that portion of a street improved, designed or ordinarily used for vehicular traffic and that portion of a street used for drainage. Id. Yet another definition contained in the Dallas City code notes that a street includes: …any highway, boulevard, alley, street, avenue or public place or square, bridges, viaducts, culverts, underpasses, overpasses, tunnels and causeways in the city, dedicated to or devoted to public use. Id. These definitions flow in an entirely circular fashion, many containing identical language or portions of other definitions, as is the case with the definition of a highway and a street. Each definition uses the very term it defines in the definition section. Notably, none of these definitions clearly or adequately suggest that a highway includes both the main thoroughfare as 7 Evidence in the record suggests that service roads are unique to Texas highways. Recognizing this fact, a statutorily defined term such as “highway” would need to account for this feature when regulating which conduct may occur in certain areas near the road.
Case 3:13-cv-01479-P Document 12 Filed 04/19/13 Page 9 of 12 PageID 108 well as all of its access and/or service roads. Applying this understanding to Plaintiffs and other putative sign-bearers along the Central Expressway, the Court is not convinced that an ordinary person of even extraordinary intelligence would understand that the restricted seventy-five foot sign-free zone actually begins from the outside sidewalk of Central Expressway’s access road. Order 3:13-CV-1479-P Page 9 of 12 The vagueness of the Ordinance also encourages its improper enforcement. As noted above, a penal statute must define a criminal offense in a way that does not encourage discriminatory and arbitrary enforcement. During the preliminary injunction hearing, the Court received evidence that even those tasked with enforcing the ordinance struggled to uniformly apply its plain terms. On cross-examination, Chief Shedd, head of the Dallas Police Department division tasked with enforcement of the Ordinance, demonstrated noticeable discomfort and confusion when presented with several hypothetical situations 8 regarding display of signage along the sidewalk of the Central Expressway service road. Many of Chief Shedd’s answers to these hypotheticals were either unresponsive or inconsistent. Furthermore, other evidence suggests that the Plaintiffs specifically asked Dallas Police Department officers if they would be cited under the Ordinance if they were to stand with their backs facing the Central Expressway access road with their signs facing the parking lot, not oncoming traffic, to take a photograph. Dallas Police Department officers stated that this would be a violation and that such conduct would subject Plaintiffs to citation. 9 During her testimony, Chief Shedd stated that she did not believe that this would be a violation. 8 The hypothetical situations were not difficult to imagine as having actually occurred, such as football fans bearing signs while on their way to Ford Stadium on the SMU campus or signs left unattended at the proposed protest site. 9 The officers expressed this belief notwithstanding the Ordinance’s plain language which requires a sign-bearer to act “in a manner intended to attract the attention of vehicle occupants” on the highway.
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