                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               MAY 12 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHN THOMAS COOPER, JR.;                         No. 15-15092
JONATHAN McLANE,
                                                 DC No. 4:12 cv-0208 DCB
              Plaintiffs - Appellees,

 v.                                              MEMORANDUM*

CITY OF TUCSON; FRED GRAY, JR.;
KELLY GOTTSCHALK; RICHARD
MIRANDA,

              Defendants - Appellants.


                   Appeal from the United States District Court
                            for the District of Arizona
                  David C. Bury, Senior District Judge, Presiding

                      Argued and Submitted August 11, 2015
                            San Francisco, California

Before:       REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.

      The City of Tucson (“City”) and three City employees appeal from the

district court’s order granting Plaintiffs a preliminary injunction. We have




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
jurisdiction under 28 U.S.C. § 1292(a)(1), and we vacate the injunction and remand

for further proceedings.

      Plaintiffs, two homeless Arizona residents, are members of the Occupy

Movement who “occupy” the public sidewalk to the east of the Veinte De Agosto

Park (“VDA sidewalk”) in downtown Tucson. Plaintiffs brought an action under

42 U.S.C. § 1983, alleging that the City arrested them and seized their property

despite their compliance with Tucson City Code (“TCC”) § 11-36.2. Section 11-

36.2 prohibits a person from sitting or lying on the sidewalk unless the individual

is engaged in First Amendment activities, leaves open a five-foot unobstructed

path, and remains at least eight feet from any doorway or business entrance.

      In response, the City argues that Plaintiffs violated two other ordinances,

TCC §§ 16-35 and 25-51, which impose a blanket prohibition on the obstruction of

public sidewalks with any object or thing. Notably, these ordinances do not define

“obstruction.” To fill this gap, the City adopted the 3-B Policy. The 3-B Policy

permits individuals exercising their First Amendment rights to have with them on

the sidewalk three “B”s – a bedroll, backpack, and non-alcoholic beverage; any

item exceeding these three “B”s is effectively construed as an obstruction in

violation of §§ 16-35 and 25-51.




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      In December 2014, the district court issued a preliminary injunction

enjoining the City from:

      1.     Applying the 3-B Policy as a basis for an arrest, physical or by
             citation, or to threaten arrest on the basis of the 3-B Policy.
      2.     Applying the 3-B policy as a basis for seizing or threatening to
             seize personal property.
      3.     Applying the 3-B Policy to define obstruction; obstruction shall
             be defined in accordance with TCC § 11-36.2 which allows the
             free exercise of First Amendment rights, including free exercise
             of religion, speech and assembly; provided, however, that the
             person sitting or lying on the public sidewalk remains at least
             eight (8) feet from any doorway or business entrance, leaves
             open a five (5) foot path and does not otherwise block or
             impede pedestrian traffic.
      4.     Seizing any personal property that in good-faith does not appear
             to be abandoned.
      ....

The injunction thus rejected the City’s use of the 3-B Policy to define

“obstruction” in §§ 16-35 and 25-51 in favor of § 11-36.2’s First Amendment

exception.

      In February 2016, in response to our order to show cause, the parties

informed this Court that the City had amended the TCC ordinances. These

amendments, effective January 8, 2016, expressly disclaim the applicability of

TCC § 11-36.2’s First Amendment exception to §§ 16-35 and 25-5. Additionally,

§§ 16-35 and 25-5, as amended, now define “obstruction.” Between 7 a.m. and 10

p.m., the ordinances maintain the pre-amendment blanket ban: any item placed on


                                          3
the sidewalk is deemed an obstruction in violation of the ordinance. Between 10

p.m. and 7 a.m., an item is an obstruction unless:

       1.     The item(s) or object(s) are, in aggregate, four (4) cubic feet or
              smaller; and
       2.     The item or object is personally attended by its owner; and
       3.     The item or object is not affixed in any manner; and
       4.     The item or object is placed at least five feet (5') back from the
              edge of the sidewalk that is adjacent to the street, and
       5.     Where the sidewalk is wider than eight feet (8'), the item or
              object is placed only within the three feet (3') of width of the
              portion of the sidewalk that is furthest back from the adjacent
              street.

       Plaintiffs also disclosed to the Court that their presence on the VDA

sidewalk had recently decreased or temporarily ceased. Nevertheless, they assert

that they continue to have a concrete interest in occupying the public sidewalk and

intend to resume occupation within the next three months. The City does not

refute Plaintiffs’ assertions.

       In light of the amended ordinances,1 the preliminary injunction is no longer

responsive to either the laws governing individuals and items on Tucson’s public

sidewalks or the City’s enforcement of those laws. Accordingly, we vacate the

preliminary injunction. Because Plaintiffs intend to continue occupying the VDA

       1
              Because no change has been made with respect to any ordinance
regarding the seizure of abandoned property, this disposition does not preclude the
district court from reinstating section 4 of the preliminary injunction, should it
deem such reinstatement appropriate in the present circumstances.

                                           4
sidewalk, however, we remand to the district court to determine whether a revised

preliminary injunction is appropriate, in view of the amended ordinances. See

A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1098 (9th Cir. 2002)

(explaining that a district court has inherent authority to modify a preliminary

injunction based on changed circumstances or new facts); see also Smith v. Obama,

No. 14-35555, 2016 WL 1127087, *1 (9th Cir. Mar. 22, 2016) (remanding certain

claims “for the district court to determine whether they are moot and, if they are

not, for the district court to resolve them in light of the intervening change in the

law”).

         Each party shall bear its or his own costs on appeal.

         VACATED and REMANDED.




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