     Case: 12-31236       Document: 00512310790         Page: 1     Date Filed: 07/17/2013




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

                                                                            FILED
                                                                            July 17, 2013
                                     No. 12-31236
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JESSE MORRELL,

                                                  Plaintiff-Appellant,
v.

CITY OF SHREVEPORT; WILLIE L. SHAW, JR., in his official capacity;
JACQUELINE V. WILLIS, in her official and individual capacity; C.
STAFFORD, in his official and individual capacity,

                                                  Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:12-CV-1989



Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant (“Appellant”), Jesse Morrell, appeals the district court’s
December 4, 2012 denial of his second motion for preliminary injunction in this
constitutional challenge to various municipal ordinances of Shreveport,
Louisiana (the “City”). For the reasons provided herein, we AFFIRM.




       *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                       No. 12-31236

                                             I.
      Appellant is a self-described “street preacher.”              On the afternoon of
Saturday, July 30, 2011, Appellant located himself in front of the El Dorado
casino in Shreveport, on Clyde Fant Memorial Parkway near the intersection
with Milam Street. Using a bullhorn, Appellant repeated slogans such as “you
can’t spell casino without sin” to passers-by and casino patrons. He carried a
sign conveying a comparable message.
      Defendants-Appellees (“Appellees”)—two casino security guards, a
Shreveport police officer, and his supervisor—ordered Appellant to relocate by
one block, so as to distance himself from the casino. Appellees erroneously
stated that Appellant was on private land. Appellant, who recorded video of this
entire encounter, voluntarily left at this point.1
      Thereafter, Appellant emailed Shreveport’s City Engineer, who clarified
on Monday, August 1, 2011 (the next business day) that the precise location
where Appellant had stood on July 30 was indeed public land. Appellant also
emailed other City officials, inquiring whether he would need a permit for his
street preaching activities, even if on public land. A City official replied that an
official response would be forthcoming, but none ever was provided. In the
interim, Appellant concedes that he continued to street-preach on Shreveport
public lands.
                                             II.
      Appellant initiated the instant litigation on July 25, 2012. He first moved
for a preliminary injunction on August 14, 2012. The district court denied that
motion on September 20, 2012. Appellant filed an amended complaint on
September 24, 2012, as well as a second motion for preliminary injunction.
These are the live complaint and motion for purposes of this appeal. The district


      1
          We have reviewed this video, which is part of the record on appeal.

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                                  No. 12-31236

court denied the second motion for preliminary injunction on December 4, 2012.
Appellant timely filed this interlocutory appeal.
      The heart of Appellant’s prayer for relief is a challenge, under the First
Amendment to the U.S. Constitution, to those Shreveport municipal ordinances
that would restrict his street preaching activities. The crux of Appellant’s
motion for preliminary injunction is that, without a response from the City to the
permitting questions Appellant posed in his emails, he is effectively estopped
from engaging in street preaching activities on Shreveport public lands.
                                        III.
      “Our standard of review for a district court’s granting of a preliminary
injunction is whether the issuance of the injunction, in the light of the applicable
standard, constitutes an abuse of discretion.” Affiliated Prof’l Home Health Care
Agency v. Shalala, 164 F.3d 282, 284 (5th Cir. 1999) (per curiam) (citation and
internal quotation marks omitted). “In performing that review, findings of fact
that support the district court’s decision are examined for clear error, whereas
conclusions of law are reviewed de novo.” Id. at 284-85 (citation omitted).
                                        IV.
      As the district court explained in its September 20 and December 4, 2012
opinions, this Circuit employs a four-part test—which the applicant bears the
burden of satisfying—for entitlement to a preliminary injunction:             (i) “a
substantial likelihood that [the applicant] will prevail on the merits”; (ii) “a
substantial threat that [the applicant] will suffer irreparable injury if the
injunction is not granted”; (iii) that the applicant’s “threatened injury outweighs
the threatened harm to the party whom he seeks to enjoin”; and (iv) that
“granting the preliminary injunction will not disserve the public interest.”
Bluefield Water Ass’n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 252-53 (5th
Cir. 2009). “[A] preliminary injunction is an extraordinary remedy which should
not be granted unless the party seeking it has clearly carried the burden of

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                                  No. 12-31236

persuasion on all four requirements.” Id. at 253 (citation and internal quotation
marks omitted).
      In its December 4, 2012 opinion, the district court held that Appellant
cannot satisfy either of the first two prongs of this test. Because we affirm on
the basis that Appellant cannot satisfy the second prong, we need not address
whether he could satisfy the first prong.
      “[A] preliminary injunction will not be issued simply to prevent the
possibility of some remote future injury.” United States v. Emerson, 270 F.3d
203, 262 (5th Cir. 2001) (citation, footnote, and internal quotation marks
omitted).   “There must be a likelihood that irreparable harm will occur.
Speculative injury is not sufficient; there must be more than an unfounded fear
on the part of the applicant.” Id. (same) (emphasis in original). Thus, “[a]
presently existing actual threat must be shown.” Id. (same) (emphasis omitted).
That said, “the injury need not have been inflicted when [the] application is
made or be certain to occur; a strong threat of irreparable injury before trial is
an adequate basis.” Id. (same).
      Here, on September 19, 2012, the City filed a sworn affidavit stating that
Appellant may proceed with his street preaching without a permit so long as he
does not engage in “street performances,” as defined in § 42-347 of the City’s
municipal ordinances, or exceed the volume amplification threshold specified in
§ 58-30(20). In the event Appellant does engage in “street performances,” he
simply must obtain a permit by following the procedures specified in § 42-349,
and comply with § 42-348’s restrictions on performances that encroach upon
private lands, including its prohibition on amplification devices.
      In light of the City’s affidavit, and Appellant’s concession that he has
continued street preaching during the pendency of this litigation, we conclude
that there is not “a likelihood that irreparable harm will occur.” Rather than



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                                  No. 12-31236

erect a “presently existing actual threat,” the City has provided Appellant with
his requested guidance as to complying with its municipal ordinances.
      Appellant’s constitutional challenge to the municipal ordinances applicable
to his street preaching proceeds before the district court. At present, we take no
position on the merits of that challenge.
                                       V.
      For the foregoing reasons, we AFFIRM the district court’s December 4,
2012 denial of Appellant’s second motion for preliminary injunction.




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