           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 9, 2009

                                       No. 08-50914                    Charles R. Fulbruge III
                                                                               Clerk

MICHAEL JOHN; ANN JOHN; DAN GONZALES; ROBERT MARTINEZ

                                                   Plaintiffs - Appellants
v.

CITY OF SAN ANTONIO; HENRY BASSUK; THOMAS HILTPOLD;
DARLENE MCCOY; RICHARD MILLER; CHRIS PREUSS

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                                   (07-CV-380)


Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       The Appellants in this appeal are vendors who formerly sold their wares
along the pedestrian walkways of the San Antonio Riverwalk. They filed this 28
U.S.C. § 1983 action against the City of San Antonio, alleging City ordinances
2006-11-01-1256 and 2006-11-02-1257 unconstitutionally restrict vending along
the San Antonio Riverwalk and in downtown San Antonio generally.
Specifically, the Appellants alleged the ordinances unconstitutionally restrict


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-50914

commercial speech, are overbroad and vague, and deny them a right to earn a
living.   The Appellants also asserted against the City claims of police
misconduct, all arising from City police officers’ interactions with Appellant
Michael John. Our review of the record satisfies us that the district court’s
summary judgment for the City was proper.
      The Appellants provided no evidence that the ordinances have been used
to restrict noncommercial speech, and our own reading of the ordinances
satisfies us that they are neither overbroad nor vague.        To the extent the
ordinances restrict commercial speech, they easily survive the test articulated
in Central Hudson Gas & Electric Corporation v. Public Service Commission of
New York, 447 U.S. 557 (1980), because they directly advance the City’s interests
in safety and aesthetics and are no more extensive than necessary.
      For similar reasons, the ordinances survive due process analysis. The Due
Process Clause protects an individual’s liberty interest in the freedom to earn a
living and requires, at a minimum, that a state action affecting that liberty
interest be rationally related to some legitimate government purpose. Daniels
v. Williams, 474 U.S. 327, 331 (1986). We have no trouble concluding that safety
on pedestrian walkways is a legitimate government purpose.           Because the
ordinances are rationally related to safety, they do not unconstitutionally
impinge upon the Appellants’ right to earn a living.
      Finally, even assuming the Appellants established individual instances of
police misconduct, they failed to establish a pattern of police misconduct
constituting a City policy or custom, and therefore failed to establish a necessary
element of municipal liability under Monell v. Department of Social Services, 436
U.S. 658 (1978).
      Accordingly, the judgment of the district court is
                                                                      AFFIRMED.



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