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

                                                                            FILED
                                                                        November 25, 2008

                                       No. 08-30047                   Charles R. Fulbruge III
                                                                              Clerk

JOHN T NETHERLAND

                                                  Plaintiff-Appellee
v.

TROY EUBANKS, officially, and individually;
CITY OF ZACHARY, LOUISIANA

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CV-409


Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Troy Eubanks and the City of Zachary, Louisiana (collectively the “City”)
appeal a preliminary injunction enjoining their enforcement of Zachary Code
Ordinance § 58-93.2 (the “Ordinance”), which reads, in relevant part, as follows:
       (a) Disturbing the peace is the doing of any of the following in such
       a manner as would foreseeably disturb or alarm the public:
       ...



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-30047

      (2) Addressing any offensive, derisive, or annoying words to any
      other person who is lawfully in any street, or other public place; or
      call him by any offensive or derisive name, or make any noise or
      exclamation in his presence and hearing with the intent to deride,
      offend, or annoy him, or to prevent him from pursuing his lawful
      business, occupation, or duty . . . .
Because the district court did not consider any limiting construction of the
Ordinance before finding it facially unconstitutional, we vacate the preliminary
injunction and remand the case for reconsideration.
                       I. FACTS AND PROCEEDINGS
      Netherland took up a position outside of Sidelines Grill (“Sidelines”) on the
evening of November 18, 2006. The parties disagree about what happened next.
Netherland claims that he was quoting Biblical scripture in a loud voice,
including I Corinthians 5:9, saying “Know ye not that the unrighteous shall not
inherit the Kingdom of God?         Neither fornicators, idolaters, adulterers,
effeminate, abusers of themselves with mankind, covetous, thieves, revelers,
none of these shall enter into the Kingdom of God.” He states that he was
speaking from a grassy public easement between the Sidelines parking lot and
the road. The City claims that Netherland was standing in the parking lot
yelling at Sidelines customers that they were fornicators and whores and they
were condemned to Hell for going inside the establishment.
      The police were called and Netherland was eventually threatened with
arrest if he did not stop.    He left the scene and later sued for damages,
declaratory relief, and injunctive relief under 42 U.S.C. § 1983, 42 U.S.C. § 1988,
and 28 U.S.C. §§ 2201–02, alleging infringement of his First Amendment rights.
Netherland also filed a motion for a preliminary injunction, which the district
court granted after a hearing. The district court made several findings of fact,
but granted the injunction on the ground that the Ordinance was
unconstitutional on its face due to vagueness and overbreadth.
                         II. STANDARD OF REVIEW

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      In order to obtain a preliminary injunction, the plaintiff bears the burden
of persuasion on four elements:
      (1) a substantial likelihood that plaintiff will prevail on the merits,
      (2) a substantial threat that plaintiff will suffer irreparable injury
      if the injunction is not granted, (3) that the threatened injury to
      plaintiff outweighs the threatened harm the injunction may do to
      defendant, and (4) that granting the preliminary injunction will not
      disserve the public interest.
Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). Each of these
elements is a mixed question of law and fact where we review the factual
findings of the district court for clear error and the legal conclusions de novo.
Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998). A facial challenge to the
constitutionality of a statute, however, presents a pure question of law, which
we review de novo. Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662
(5th Cir. 2006). “[T]he ultimate decision whether to grant or deny a preliminary
injunction is reviewed only for abuse of discretion,” but if the decision is based
on erroneous legal principles, it is reviewed de novo. Hoover, 164 F.3d at 224;
Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 419 (5th Cir. 2001).
                               III. DISCUSSION
      The City’s only basis for appeal is that the district court erred in
evaluating Netherland’s likelihood of prevailing on the merits by finding the
Ordinance unconstitutional on its face.
      Courts must “proceed with caution and restraint” when considering a
facial challenge to the overbreadth and vagueness of a law. Erznoznik v. City of
Jacksonville, 422 U.S. 205, 216 (1975). “[A] court’s first task is to determine
whether the enactment reaches a substantial amount of constitutionally
protected conduct.” Vill. of Hoffman Estates v. The Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 494 (1982). In evaluating such a challenge, “a federal court
must, of course, consider any limiting construction that a state court or


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enforcement agency has proffered.” Id. n.5; see also Ward v. Rock Against
Racism, 491 U.S. 781, 795–96 (1989). In the absence of a limiting construction
from a state court, federal courts should “presume any narrowing construction
or practice to which the law is fairly susceptible.” City of Lakewood v. Plain
Dealer Publ’g Co., 486 U.S. 750, 770 n.11 (1988) (internal quotation marks
omitted); see also Ernnoznik, 422 U.S. at 216.
       In declaring the Ordinance unconstitutional on its face, the district court
failed to consider any narrowing construction from Louisiana courts or
determine, in the absence of state court decisions, if the Ordinance is “fairly
susceptible” to a narrowing construction. The doctrines of overbreadth and
vagueness apply to laws as construed by state courts—or as easily susceptible
to construction by those courts—not as written. See Osborne v. Ohio, 495 U.S.
103, 119–20 (1990). The language of the Ordinance is identical to the general
Louisiana disturbing the peace statute, LA. REV. STAT. § 14:103, and at least part
of that statute has been given a limiting construction by the Louisiana Supreme
Court. See State v. Jordan, 369 So.2d 1347, 1350 (La. 1979) (interpreting a local
disturbing the peace ordinance the same as the identically-worded state statute).
“[I]n such a manner as would foreseeably disturb or alarm the public” has been
interpreted to apply only to “conduct which is violent or boisterous in itself, or
which is provocative in the sense that it induces a foreseeable physical
disturbance.” Id. (quotation omitted); State v. Heck, 307 So.2d 332 (La. 1975);
see also Garner v. Louisiana, 368 U.S. 157, 166–67 (1961) (accepting this
interpretation from the Louisiana Supreme Court).1

       1
        It is also interesting to note that the language of subsection (a)(2) is very similar to
the language found constitutionally acceptable—with a sufficiently narrow construction—by
the Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 569 (1942). See also
Coates v. City of Cincinnati, 402 U.S. 611, 613 n.3 (1971) (quoting approvingly of the limiting
construction given the statute in Chaplinsky in a case with a much broader interpretation of
the word “annoying”).
       The New Hampshire statute at issue in Chaplinsky stated that:

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       We offer no opinion on whether the Ordinance as construed by the
Louisiana Supreme Court is constitutional or whether subsection (a)(2) may be
“fairly susceptible” to a narrowing construction.                  Possible narrowing
constructions of the Ordinance were not fully argued on appeal, and so we vacate
the preliminary injunction and remand this case to the district court for
reconsideration.
       We would, however, note that “for reasons relating both to the proper
functioning of courts and to their efficiency, the lawfulness of the particular
application of the law should ordinarily be decided” before considering a facial
challenge. Bd. of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989).
That is the “usual judicial practice,” and in a case such as this one where the
district court has already made extensive findings of fact, it may be appropriate
to first consider the application of the Ordinance to Netherland before engaging
in the “more difficult” problem of determining if the statute is unconstitutional
on its face. See id. at 484–85.
                                  IV. CONCLUSION
       For the foregoing reasons, we VACATE the preliminary injunction and
REMAND to the district court for reconsideration in light of this opinion.




      No person shall address any offensive, derisive or annoying word to any other
      person who is lawfully in any street or other public place, nor call him by any
      offensive or derisive name, nor make any noise or exclamation in his presence
      and hearing with intent to deride, offend or annoy him, or to prevent him from
      pursuing his lawful business or occupation.
315 U.S. at 569.

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