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American Civil Liberties Union of Idaho, Inc. v. City of Boise

United States District Court, D. Idaho

January 2, 2014

AMERICAN CIVIL LIBERTIES UNION OF IDAHO, INC., an Idaho nonprofit corporation, LARRY SHANKS, and TROY MINTON, Plaintiffs,
v.
CITY OF BOISE, an Idaho municipal corporation, Defendant

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[Copyrighted Material Omitted]

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For American Civil Liberties Union of Idaho, Inc., an Idaho nonprofit corporation, Larry Shanks, Troy Minton, Plaintiffs: Eric S Tars, LEAD ATTORNEY, National Law Center on Homelessness & Poverty, Washington, DC; Richard Alan Eppink, LEAD ATTORNEY, American Civil Liberties Union of Idaho Foundation, Boise, ID.

For City of Boise, an Idaho municipal corporation, Defendant: Scott B Muir, LEAD ATTORNEY, Boise City Attorney's Office, Boise, ID.

OPINION

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MEMORANDUM DECISION AND ORDER

Honorable Edward J. Lodge, U.S. District Judge.

Pending before the Court in the above-entitled matter is Plaintiffs' Motion for Preliminary Injunction (Dkt. 4). The parties stipulated to an expedited briefing schedule since the ordinance at issue in this case becomes effective on January 2, 2014. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.

BACKGROUND

Plaintiffs American Civil Liberties Union of Idaho, Inc. (" ACLU" ), Larry Shanks (" Shanks" ), and Troy Minton (" Minton" ) filed a Complaint and Motion for Preliminary Injunction alleging Defendant City of Boise's (" City" ) Ordinance NO. ORD-34-13 (" ORD -34-13" ) is in violation of the United States Constitution, 42 U.S.C. Section 1983 and the Idaho Constitution. Specifically, the First Amendment and the

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Equal Protection Clause of the Fourteenth Amendment. Additionally, Plaintiffs argue the ordinance is unconstitutionally vague.

ORD34-13 was passed by the Boise City Council and approved by the Mayor on September 17, 2013 and becomes effective on January 2, 2014. The City maintains the ordinance does not violate the United States Constitution or the Idaho Constitution and is not vague or overbroad. The City argues the ordinance was passed to expand the City's existing aggressive solicitation ordinance as well as to curb harassing or unsafe panhandling. The City's press release indicates the ordinance came in response to requests fro local business owners and residents who have reported an increase in panhandling activities in recent years.

ORD34-13 defines " aggressive manner" solicitation and prohibits the same. Plaintiffs do not challenge this portion of the ordinance. Rather, Plaintiff's challenge ordinance's prohibition of non-aggressive solicitations for donations of money or property in other public areas. The Plaintiffs claim the ordinance unlawfully restricts their freedom of speech. The City argues the restriction of speech is a proper time, manner and location restriction in order to satisfy a legitimate governmental interests. Further, the City challenges the Plaintiffs' standing to bring this action.

STANDARD OF REVIEW

To obtain a preliminary injunction, Plaintiffs must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to them in the absence of preliminary relief; (3) that the balance of equities tips in their favor; and (4) that an injunction is in the public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20-23, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Ninth Circuit has held that " 'serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Further, " under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction." Id. at 1131 (emphasis in original).

For First Amendment challenges where the plaintiff makes a colorable First Amendment claim, the burden shifts to the defendant to justify its speech restrictions. Thalheimer v. City ...


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