     Case: 19-20514      Document: 00515213076         Page: 1    Date Filed: 11/25/2019




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

                                                                                FILED
                                      No. 19-20514                      November 25, 2019
                                                                           Lyle W. Cayce
GERRY MONROE,                                                                   Clerk


                                 Plaintiff - Appellant,
v.

HOUSTON INDEPENDENT SCHOOL DISTRICT,

                                 Defendant - Appellee.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:19-CV-1991


Before ELROD, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Houston Independent School District (“HISD”) banned Gerry Monroe
from all HISD “[f]acilities, activities and meetings.” The facilities ban followed
two different HISD meetings. At the first, a reassignment hearing for an HISD
employee, Monroe became belligerent, yelled, banged on the table, swore
profusely, and insulted administrators almost incessantly. Monroe said, “I’m
gonna turn that m*****f***ing school upside down” and that he was going “to
knock out three of [HISD’s] principals.” Monroe repeatedly yelled racial
epithets that do not merit reprinting, even with asterisks.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      Two days later, Monroe attended an HISD board meeting. He wore a
bandana around his neck and a t-shirt with an HISD principal’s picture on it.
Above her picture, the shirt said, “PRINCIPAL IRMA SANDATE MUST GO!”;
below her picture, it said, “BECAUSE SHE DON’T LIKE BLACK PEOPLE.”
Monroe gave an angry speech and repeatedly called the principal an “idiot.” He
insisted that she immediately be fired. At the end of his speech, Monroe paused
and raised the bandana over his mouth towards his eyes and said, “I got a team
that can protect every last one of [the teachers]. You need some help?”
Lowering his bandana, Monroe shouted “Do something with that idiot over
there. This is the mandate: Either you take her out or I’m going to take her
out.” Throughout his speech, including during the mandate, he pointed at the
board with a hand gesture that, according to some in the room, looked like a
gun. Monroe stated that he did not remember using a gun gesture during the
meeting.
      On April 11, 2019, HISD issued a criminal trespass warning that banned
Monroe from HISD facilities indefinitely. Monroe sued. His complaint stated
that “HISD ‘banned’ him from entering all HISD facilities;” that this “ ‘ban’ . . .
prevented [him] from attending the May 9, 2019 meeting of the HISD Board of
Trustees;” and that this “ban” constituted a “prior restraint” and “viewpoint
discrimination.” He also sought to enjoin HISD officials from enforcing the
“April 11, 2019 indefinite ‘ban’ on him entering its facilities, meetings, and
activities.”
      After Monroe filed suit, HISD changed its facilities ban. The day before
the motion hearing in district court, HISD sent Monroe a new letter stating
the ban would end on December 31, 2019. That July 10 letter also included a
list of bullet points detailing what it called “existing HISD policy.” According
to this letter, HISD considers the following to be “conduct [that] disrupts and
interferes with proceedings[:]” “name-calling,” the use of signs or clothing
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“containing offensive or derogatory remarks about any HISD Board member
or employee,” “yelling,” and the use of “offensive” language. The letter warns
Monroe that he may be punished if he “engage[s] in conduct listed above on
HISD property.” Monroe did not amend his complaint to challenge the July 10
letter or amend his request for a preliminary injunction to challenge this
“clarification” of “existing HISD policy.”
      On July 11, 2019, the district court held a preliminary injunction
hearing. The parties discussed the July 10 letter, and the court noted that “the
criminal trespass warning remains in effect through December 31, 2019, in
other words, a period of less than six months.” The court advised HISD to
remove certain representations in the July 10 letter that Monroe objected to.
After this hearing—on July 15, 2019—HISD sent Monroe a letter that removed
those representations. The remaining four paragraphs of the letters are
identical: These sections detail the duration of the facilities ban, a process for
contacting school principals, and a bullet point list of conduct and speech HISD
considers inappropriate. Monroe did not amend his complaint or his request
for preliminary injunction to challenge the July 15 version of HISD’s ban.
Finally, on July 19, 2019, the district court refused to enjoin HISD. The court
analyzed the ban as it was “stated in [HISD’s] July 15, 2019 letter.”
      Monroe appealed the denial of a preliminary injunction. We have
jurisdiction under 28 U.S.C. § 1292(a)(1). Our review is for abuse of discretion.
Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009).
      On appeal, Monroe challenges the July 15 ban and also challenges
HISD’s references to “existing HISD policy” in their most recent letters to him.
Monroe raises a number of issues with this “existing HISD policy” and its
restrictions on “offensive” speech and “name-calling” that, if true, would give
us grave concerns under the First Amendment. After all, “[t]he language of the
political arena . . . is often vituperative, abusive, and inexact”—and yet the
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First Amendment often safeguards such speech. Watts v. United States, 394
U.S. 705, 708 (1969). And a rule could not be viewpoint neutral “if it provided
that public officials could be praised but not condemned.” Matal v. Tam, 137 S.
Ct. 1744, 1766 (2017).
       Here, however, neither “existing HISD policy” nor HISD’s “clarification”
in the July 10 or July 15 letters are mentioned anywhere in Monroe’s
complaint. Neither is mentioned in his request for preliminary injunction. And
while “existing HISD policy” was obliquely mentioned at that hearing, Monroe
did not object when asked by his own attorney whether he intends to follow
HISD’s rules and regulations in the future. Monroe acknowledged that he was
“very embarrassed” by his conduct and promised to comply with HISD’s rules
and regulations—specifically, that he would be “professional . . . [and
participate] in a manner where people don’t feel threatened.” The record on the
“existing HISD policy” and its clarification is thus nonexistent or at best
undeveloped. 1 For this reason, it is inappropriate for this court to rule on
Monroe’s newfound challenge to “existing HISD policy” or HISD’s clarification
thereto.


       1  During oral argument, Monroe’s attorney stated that he submitted to the court a
written response to the July 15 letter prior to the court’s July 19 order. To the extent that
Monroe argues that his written response substitutes for a hearing under Rule 65(a), it does
not. See FED. R. CIV. P. 65(a)(2); 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2941 (3d ed. 2019) (“Some type of a hearing also implicitly is required by
subdivision (a)(2), which was added in 1966 and provides either for the consolidation of the
trial on the merits with the preliminary-injunction hearing or the inclusion in the trial record
of any evidence received at the Rule 65(a) hearing.”). For example, unlike a live hearing, a
one-sided, written statement from an attorney lacks direct witness testimony, the
opportunity to assess the credibility of witnesses, and the opportunity to challenge credibility
and evidence through cross-examination. Plus, neither the detailed fact section of Monroe’s
brief nor the district court’s order denying injunctive relief mentioned Monroe’s July 18
written submission, which underscores that it lacked substance sufficient to create a record
regarding HISD’s July 15 letter. The district court’s order does, however, recognize HISD’s
July 15 letter itself. Notably, the court’s analysis of the July 15 letter focuses on how it limited
the duration and scope of the April 12 criminal trespass warning, not on the new language
summarizing “existing HISD policy.”
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      The Federal Rules of Civil Procedure give the district court—not this
one—the tools to develop this record. Rule 65 requires a hearing before issuing
a preliminary injunction. See FED. R. CIV. P. 65(a)(2); 11A CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2941 (3d ed. 2019). But
at the Rule 65 hearing in this case, the facilities ban was the only issue in front
of the district court. As a result, the record does not indicate the “reasons why”
an injunction should be issued against the “existing HISD policy.” FED. R. CIV.
P. 65(d)(1)(A). The record also does not include what “specifically” an injunction
against enforcement of the “existing HISD policy” would do. FED. R. CIV. P.
65(d)(1)(B). And the record does not include information to “describe in
reasonable detail . . . the act or acts restrained.” FED. R. CIV. P. 65(d)(1)(C). For
instance, the record does not describe: (1) who at HISD enforces the “existing
HISD policy,” (2) how the “existing HISD policy” is enforced, (3) when it is
enforced, (4) in what contexts it is enforced, and (5) against whom it is enforced.
The requirements of Rule 65 are strict because a preliminary injunction “is an
extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 690 (2008).
Accordingly, it is appropriate to remand Monroe’s challenge to the existing
policy and the specific prohibitions in the July 10 and July 15 letters so the
district court can develop the record and provide a reasoned analysis.
      Given the parties’ representations at oral argument, the only aspect of
the facilities ban that remains before us is the prohibition on Monroe attending
HISD Board of Education meetings. The ban will expire of its own accord on
December 31, and the only regular meeting scheduled before then will occur
on December 12. It is also appropriate for the district court to revisit its
analysis of Monroe’s request to attend that meeting. 2


      2  We are not, as the concurring opinion contends, permitting Monroe to “amend his
injunctive request at argument before our Court.” Indeed, we expressly reject that attempt,
which is why we decline to analyze his challenge to existing HISD policy. Rather, we remand
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       The district court opinion does not analyze whether Monroe’s speech or
conduct constituted a true threat. The opinion properly acknowledges that
“‘[t]rue threats’ encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.” Virginia v. Black,
538 U.S. 343, 359 (2003). But it does not articulate what speech or conduct of
Monroe reached the level of a true threat. If no statement or action did, then
HISD would be restraining Monroe from speaking at a public meeting based
on the content of his speech or his viewpoint. “When we have no notion of the
basis for a district court's decision, because its reasoning is vague or was simply
left unsaid, there is little opportunity for effective review.” Myers v. Gulf Oil
Corp., 731 F.2d 281, 284 (5th Cir. 1984).             For that reason, “we have not
hesitated to remand a case to the district court for an explanation of its decision
when no explanation was originally given.” Gates v. Texas Dep’t of Protective
& Regulatory Servs., 537 F.3d 404, 418 (5th Cir. 2008).
       When conducting that analysis, the district court must exercise its own
judgment. A police officer’s testimony “that he felt Plaintiff’s threats at the
April 11 meeting were concerning from a law enforcement perspective” does
not suffice. Many statements that are “concerning from a law enforcement
perspective” are not “true threats” as a matter of law. See, e.g., N.A.A.C.P. v.
Claiborne Hardware Co., 458 U.S. 886, 902 (1982) (holding that the
admonishment “If we catch any of you going in any of them racist stores, we’re




a challenge to the facilities ban that was adequately briefed and contested in the district
court. We need not hypothesize whether “the school board will defend itself under the ‘true
threat’ doctrine.” We know it will: It already did in its opposition to Monroe’s motion for
preliminary relief. See Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion
for Preliminary Injunction at 10 (“HISD reasonably construed Plaintiff’s threat that he would
‘take out’ one of its administrators as an unprotected ‘true threat.’”). What is lacking is
analysis of whether that statement actually rose to the level of a true threat.
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gonna break your d*** neck” did not constitute a true threat). Perhaps
Monroe’s statements are an attempt to get a principal fired through protest,
public activism, and political activity. Perhaps they were a legitimate threat to
murder a school principal. The district court needs to make that call.
      In doing so, the true threat determination must be limited to whether
Monroe “mean[t] to communicate a serious expression of an intent to commit
an act of unlawful violence to a particular individual or group of individuals.”
Black, 538 U.S. at 359. Whatever harm the target of the purported threat
received is irrelevant. This makes sense, since a statement can be a true threat
even when the speaker does not “intend to carry out the threat.” Id. at 560.
Principal Sandate was not at the board meeting, was not watching it live on
television, and did not learn of Monroe’s statement until the next day. It is
unclear what light she can shed on Monroe’s intention at the time of the
utterance. And if the speech was not a true threat, considerations of harm are
doubly barred. The Supreme Court has chosen “to protect even hurtful speech
on public issues to ensure that we do not stifle public debate.” Snyder v. Phelps,
562 U.S. 443, 462 (2011). That includes speech that actually causes harm. See
id. at 458–59 (setting aside a jury verdict imposing tort liability for intentional
infliction of emotional distress where the speech was on a matter of public
concern, and thus “entitled to ‘special protection’ under the First
Amendment”).
      Finally, and perhaps most importantly, the fora of a school and a school
board meeting must be distinguished. The district court correctly noted that
school officials have the power to “protect the public from . . . boisterous and
threatening conduct.” Carey v. Brown, 447 U.S. 455, 470 (1980) (quoting
Gregory v. Chicago, 394 U.S. 111, 118 (1969) (Black, J., concurring)). And it is
also true that educators have heightened abilities to restrict speech on school
property. See Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999). But the
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district court relied on those cases to determine that HISD reasonably banned
Monroe from speaking at a school board meeting. The reasonableness of his
ban must be evaluated in light of the purpose of that forum, not that of a
school. 3 And “[a]pplication of an incorrect legal standard is, by definition, an
abuse of discretion, and is reviewed de novo.” Ackal v. Centennial Beauregard
Cellular L.L.C., 700 F.3d 212, 215 (5th Cir. 2012).
       “We are a court of review, not of first view,” Cutter v. Wilkinson, 544 U.S.
709, 718 n.7 (2005), and the rules governing preliminary injunctions are strict.
We REMAND to the district court. The district court should determine in the
first instance whether and to what extent Monroe has adequately alleged a
violation of the “existing HISD policy” or HISD’s clarification thereof and,
following the mandates of Rule 65, determine whether a preliminary
injunction should issue. The court should also, in a manner consistent with
this opinion, decide whether HISD should be enjoined from enforcing its
facilities ban on Monroe at the December 12 Board of Education meeting.




       3 In fact, Monroe’s current challenge concerns only the ability to speak at the “Hearing
of Citizens” portion of the meeting. See Reply Br. at 13
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                                  No. 19-20514
ANDREW S. OLDHAM, Circuit Judge, concurring in part:
      I agree with much of the Court’s opinion on Rule 65 and its strictures.
My unease stems from the confusion over what exactly Monroe intends to
challenge and why. Our panel correctly rejects Monroe’s attempt to amend his
preliminary-injunction motion in a “post-hearing letter.” See supra at 4–5 n.1.
Shouldn’t we likewise reject his attempt to amend his injunctive request at
argument before our Court? Cf. id. at 6–8 (addressing arguments not raised in
Monroe’s preliminary-injunction request). When this case goes back to the
district court, maybe Monroe will decide to challenge the school district’s
“existing policies” in his motion for preliminary injunction. Or maybe he’ll
challenge something else. Cf. id. at 7–8 & n.3 (conflating challenged and
unchallenged HISD policies). Depending on what Monroe does on remand,
maybe the school board will defend itself under the “true threat” doctrine. Or
maybe they’ll invoke something else. I’d let the parties make those choices on
their own in the first instance. That is the sort of “concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult . . . questions.” Los Angeles v. Lyons, 461 U.S. 95,
101 (1983) (quotation omitted).
      The First Amendment protects some of the most important rights
recognized in our Constitution. And preliminary injunctions are powerful tools
for protecting those rights. It’s all the more important, then, to be exceedingly
precise in wielding the former, the latter, or in this case, both. I’d await a
proper vehicle before saying more.




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