     Case: 16-11335   Document: 00514126173     Page: 1   Date Filed: 08/22/2017




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

                                 No. 16-11335
                                                                         Fifth Circuit

                                                                       FILED
                                                                 August 22, 2017

RICKY D. MOORE,                                                   Lyle W. Cayce
                                                                       Clerk
             Plaintiff - Appellant

v.

DAVID O. BROWN, in his official capacity as Chief of Police for the Dallas
Police Department; LARRY D. LITTON, individual and official capacity as
Sergeant for the Dallas Police Department; CITY OF DALLAS, TEXAS,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:
      Plaintiff Ricky Moore appeals the district court’s denial of his motion for
preliminary injunction to enjoin the enforcement of two rules affecting his
ability to speak in a public park. We find no error on the part of the district
court and therefore AFFIRM.
                                I. Background
      This dispute centers on Plaintiff Ricky Moore’s speech rights in Klyde
Warren Park, a 5.2-acre park that connects downtown and uptown Dallas,
Texas. Despite its relatively small size, the park contains numerous facilities
for recreational activities, including two pavilions, a children’s park, a
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                                  No. 16-11335
playground, and several open grassy areas, including the Great Lawn. The
park is managed and operated by the Woodall Rodgers Park Foundation in
accordance with the Woodall Rodgers Deck Plaza Use Agreement. The Use
Agreement authorizes the Foundation to issue “reasonable rules and
regulations” for the park. Two of these rules mandate when an individual must
possess a permit at Klyde Warren Park. The first rule states that “a permit
may . . . be required for any activity that is intended to attract an audience (a
‘public event’).”   Second, the Foundation prohibits “structures larger than 4’
by 4’” in the park without a permit.
      Moore is an evangelical Christian and a branch director of Open-Air
Campaigners, a Christian mission organization.             In order to spread his
Christian message, Moore looks to have conversations with individuals or
small groups in busy public places in order to share his faith. Moore generates
these conversations with the use of a portable sketch board that displays
painted riddles. Moore sets up the sketch board and waits for people to come
and ask about the riddle. The sketch board is approximately four feet in width,
two feet in length, and six-and-a-half feet in height.
      Moore first started going to Klyde Warren Park with his sketch board in
early 2013. Moore’s location of choice in the park was on or next to Hart
Boulevard, which is a pedestrian-only walking path that cuts through the
Great Lawn. Moore alleges he was initially able to set up his sketch board and
talk to people without incident. But beginning in April 2013, park personnel
informed Moore on multiple separate occasions that his expression violated the
public event rule. In each instance, Moore was asked to (1) apply for a permit
with the Foundation, (2) take his expression to Pearl Lawn, another section of
the park, or (3) leave the park entirely. These interactions culminated on April
30, 2015, when Moore was given these same three options by park staff but
declined to leave because he believed his expression was protected under the
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                                   No. 16-11335
First Amendment. Moore subsequently received a criminal trespass warning
from Defendant Sergeant Larry Litton and was prohibited from returning to
any area of Klyde Warren Park for ninety days.
      Moore subsequently wrote a letter addressed to the Mayor of Dallas, the
City Attorney, and the Chief of Police explaining his situation and asserting
that the rules were not constitutionally valid. The Foundation responded by
defending its actions and suggesting that Moore could engage in his expression
on the external sidewalks without a “public event” permit. The Foundation
letter stated that Moore would still have to obtain “a permit before erecting a
structure on the external sidewalks.” Moore was invited to engage in further
dialogue, including an in-person meeting. Instead, Moore sued the City of
Dallas, Chief of Police David O. Brown, in his official capacity, and Sergeant
Litton, in his individual and official capacity.
      A day after filing his complaint, Moore filed a motion for preliminary
injunction.      Defendants subsequently sent Moore a letter before filing a
response to his motion “to make clear [the Foundation’s] position regarding Mr.
Moore’s desire to use the Park for his stated purposes.” This second letter
stated that:
               [a]s we have discussed on numerous occasions, and
               consistent with Park policies, Mr. Moore is free to
               engage in the type of activity described in the
               Complaint anywhere on the external sidewalks of
               Klyde Warren Park—including areas of Hart
               Boulevard other than the walkway single contiguous
               to the Great Lawn—provided that his activity does not
               result in intentional damage to Park property or
               unduly interfere with a previously-issued permit for
               the same area.
A footnote further explained that:
               [d]ue to the Park’s interest in safety and in avoiding
               damage to Park property, a permit is generally

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                                  No. 16-11335
            required for structures larger than 4’ x 4’. Based on
            the allegations in Mr. Moore’s complaint, the Park is
            happy to issue a long-term permit for the use of his
            sketch board in the locations described above.
The letter closed by stating “[b]ecause Mr. Moore is free to engage in the
conduct he has described in areas that are ‘on or in close vicinity to Hart
Boulevard,’ the Park believes that any confusion should now be resolved, and
that there is no need for further litigation.”
      Six days after sending this letter, Defendants filed their response to
Moore’s motion for preliminary injunction.       In that response, Defendants
argued that the public event rule did not apply to Moore and that his challenge
to that rule was moot. The remainder of Defendants’ response argued, inter
alia, that Moore’s use of the sketch board violated the “structure rule,” and that
the structure rule was constitutional.
      The district court denied Moore’s motion. Moore’s challenge to the public
event rule was held to be moot as Defendants conceded in their response that
Moore’s activity “does not constitute a public event” and “the City Defendants
represent that they will no longer apply the Public Event Rule against Moore.”
As to the structure rule, the district court first held that Moore failed to
demonstrate a substantial likelihood of success on the merits of his First
Amendment claim because “Moore has not shown that the Structure Rule, as
applied to him, violates his First Amendment rights.” It also held that Moore
failed to establish that the structure rule was an unreasonable time, place, or
manner restriction.     Finally, the court determined that Moore failed to
demonstrate a substantial likelihood of success on the merits of his Fourteenth
Amendment claim because Moore failed to demonstrate that the structure rule
was unconstitutionally vague. Moore timely appealed.




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                                      No. 16-11335
                               II. Standard of Review
       We review a district court’s denial of a preliminary injunction for an
abuse of discretion. Opulent Life Church v. City of Holly Springs, 697 F.3d 279,
288 (5th Cir. 2012). In order to obtain a preliminary injunction, a movant must
demonstrate (1) a substantial likelihood of success on the merits; (2) a
substantial threat of irreparable harm if the injunction does not issue; (3) that
the threatened injury outweighs any harm that will result if the injunction is
granted; and (4) that the grant of an injunction is in the public interest. Byrum
v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). Factual findings are reviewed
for clear error, while legal conclusions are reviewed de novo. Id.
       Under the clearly erroneous standard, this court upholds findings by the
district court that are plausible in light of the record as a whole. Chemtech
Royalty Assocs., L.P. v. United States, 766 F.3d 453, 460 (5th Cir. 2014).
Moore’s argument, in essence, is that he is entitled to a preliminary injunction
as a matter of law. “Only under ‘extraordinary circumstances’ will this court
reverse the denial of a preliminary injunction.” Anderson v. Jackson, 556 F.3d
351, 355–56 (5th Cir. 2009) (quoting White v. Carlucci, 862 F.2d 1209, 1211
(5th Cir. 1989)).
                                    III. Discussion
       Moore’s appeal asserts a number of challenges to the district court’s
determination that Moore failed to demonstrate a substantial likelihood of
success on the merits on his claims that the structure rule and the public event
rules were unconstitutional. 1 We agree with the district court’s determination.



       1 Although both rules were promulgated by the Foundation, a private entity, Moore
has not joined the Foundation or any of its employees as defendants and instead sues the
City of Dallas and two officers of the Dallas Police Department. Defendants do not argue
that the Foundation is a necessary party and do not contest the fact that they sought to
enforce at least one of the rules in question. In any event, even if we assume arguendo that
the Foundation was a government actor for purposes of the constitutionality analysis, we
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                                       No. 16-11335
At this early stage in the litigation, Moore has not demonstrated a substantial
likelihood of success on his challenges to either rule.
A. Structure Rule
       The structure rule prohibits “structures larger than 4’ by 4’” without a
permit. Moore argues that the structure rule is unconstitutional because the
rule: (1) is overly broad or not narrowly tailored; (2) grants unbridled
discretion; and (3) is unduly vague.              None of these arguments, however,
constitute “extraordinary circumstances” necessitating the reversal of the
district court. Anderson, 556 F.3d at 355–56.
       1. The Structure Rule Is Narrowly Tailored and Leaves Open Ample
          Alternative Channels of Communication
       In concluding that Moore failed to establish a substantial likelihood of
success on his First Amendment claim against the structure rule, the district
court held that: (1) Moore failed to establish that the structure rule is an
unreasonable time, place, and manner restriction; (2) the structure rule affords
adequate alternative means of expression; and (3) Moore had not established
that Defendants enforced the structure rule in a discriminatory manner or
otherwise singled him out for selective prosecution. As part of its holding, the
district court found that Defendants have at least two governmental interests
in the structure rule: safety concerns and the coordination of multiple uses of
a limited space.
       Content-neutral regulations of time, place, and manner of expression in
a public forum are permitted when they are narrowly tailored to serve a
significant government interest and leave open ample alternative channels of
communication. Serv. Emp. Int’l Union, Local 5 v. City of Houston, 595 F.3d
588, 596 (5th Cir. 2010) (“SEIU”); see also Packingham v. North Carolina, 137


would still affirm the district court because we ultimately determine that Moore has failed to
carry his burden of demonstrating the unconstitutionality of either rule.
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S. Ct. 1730, 1736 (2017) (explaining intermediate scrutiny). “In the context of
intermediate scrutiny, narrow tailoring does not require that the least
restrictive means be used. As long as the restriction promotes a substantial
governmental interest that would be achieved less effectively without the
restriction, it is sufficiently narrowly tailored.” Id. Rules that incidentally
burden speech are evaluated in terms of their general effect. Baby Dolls
Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471, 485 (5th Cir. 2002). But
if a substantial portion of the burden on speech does not advance the goals of
the rule, the rule is not narrowly tailored. See Knowles v. City of Waco, 462
F.3d 430, 434 (5th Cir. 2006) (citing Ward v. Rock Against Racism, 491 U.S.
781, 799 (1989)).
      Here, we agree with the district court’s conclusion that the structure rule
meets the requirements of a content-neutral regulation of time, place, and
manner. The Defendants’ interests in safety and the coordination of uses of
extremely limited space are substantial. See Thomas v. City of Chi. Park Dist.,
534 U.S. 316, 322–23 (2002); Lauder, Inc. v. City of Houston, 751 F. Supp. 2d
920, 930 (S.D. Tex. 2010) (“The evidence in the present record amply supports
a finding that the City’s interests in public safety and aesthetics are
substantial.”), aff’d, 670 F.3d 664 (5th Cir. 2012) (per curiam). As to narrow
tailoring, requiring individuals who plan to bring objects larger than four feet
by four feet to acquire a permit advances the city’s safety and coordination
interests. Critical to this analysis is the relevant fact that Klyde Warren Park
has very limited open spaces. Klyde Warren Park is divided by and filled with
walking paths, gardens, a restaurant, a stage, and a separate children’s park.
When these areas are removed, the remaining open areas make up a small
space in a large city. Despite the relatively small size of the park, over one
million people visited the park in 2015, making the logistics of ensuring the
safety and security of all patrons a complex undertaking of which the structure
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                                 No. 16-11335
rule is a part. Requiring a permit for these structures advances interests in
both safety and coordination by allowing park managers to control how many
structures are in the park at any given time and where in the park those
structures are located. Finally, Moore still has an ample alternative in the
form of the Pearl Lawn, located a short distance away, where Moore can engage
in his expression without a permit at any time.
      Moore’s arguments to the contrary do not change our determination.
Moore argues that that the Defendants fail to demonstrate how banning his
sketch board furthers their safety interest. But this argument improperly
frames the inquiry: challenged rules must be evaluated in terms of their
general effect. See LLEH, Inc. v. Wichita Cty., 289 F.3d 358, 368 (5th Cir. 2002)
(“The six-foot buffer may have a significant impact on Babe’s; but . . .
‘regulations that burden speech incidentally. . . must be evaluated in terms of
their general effect.’” (quoting United States v. Albertini, 472 U.S. 675, 688–89
(1985)).   Moore also challenges the district court’s rejection of his factual
argument that multiple items are allowed in Klyde Warren Park every day
that he claims violate the structure rule. The district court did not abuse its
discretion in making this determination: there is no evidence that those items
were in violation of the structure rule or improperly in the park and Moore
offered no evidence demonstrating that the park treated others trying to use
the same area of Hart Boulevard for expression in a different manner. Finally,
we find unpersuasive Moore’s argument that Pearl Lawn is not an ample
alternative because of reduced foot traffic in that area. See Int’l Women’s Day
March Planning Comm. v. City of San Antonio, 619 F.3d 346, 372 (5th Cir.
2010) (“[A]n alternative venue for speech may still be constitutionally
adequate, even when there is a reduction in the potential audience for speech
in the alternative venue.” (citation omitted)). The structure rule is narrowly
tailored to promote the substantial interests of Defendants and leaves open
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                                     No. 16-11335
ample alternatives.       Moore therefore has not demonstrated a substantial
likelihood of success on the merits on this ground.
       2. Moore’s Claim of Unbridled Discretion Fails as the Structure Rule
       Lacks a Close Nexus to Expression 2
      The determination that the structure rule passes intermediate scrutiny
does not necessarily end our inquiry into constitutionality. “Of course even
content-neutral time, place, and manner restrictions can be applied in such a
manner as to stifle free expression.” Thomas, 534 U.S. at 323. Thus, “a
licensing statute placing unbridled discretion in the hands of a government
official or agency constitutes a prior restraint and may result in censorship.”
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988). In such a
case, “standards controlling the [enforcing agent]’s discretion must be
required,” or the enactment is unconstitutional for vesting unbridled discretion
in its enforcing agents. See id. at 760; see also Thomas, 534 U.S. at 323–24. A
regulation that requires a speaker to obtain a permit before speaking is a prior
restraint that is unconstitutional where, due to a lack of “narrow, objective,
and definite standards,” broad or unbridled discretion is granted, effectively
authorizing the suppression of speech prior to its expression. See SEIU, 595
F.3d at 596 (quoting Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–
51 (1969)).
       Moore argues that the structure rule has no objective standards and has
unclear exceptions which improperly grant unbridled discretion to Defendants.
Under City of Lakewood, a plaintiff may bring a facial unbridled discretion
challenge if two requirements are met. First, the plaintiff must demonstrate
a First Amendment censorship risk of either “self-censorship by speakers in



      2 Although the district court did not explicitly address Moore’s unbridled discretion
claim, we address it now for the sake of completeness.
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                                 No. 16-11335
order to avoid being denied a license to speak” or “difficulty of effectively
detecting, reviewing, and correcting content-based censorship ‘as applied’
without standards by which to measure the licensor's action.”            City of
Lakewood, 486 U.S. at 759. Second, the “law must have a close enough nexus
to expression, or to conduct commonly associated with expression, to pose a
real and substantial threat of the identified censorship risks.” Id. Here, the
structure rule does not have a close nexus to expression at all. The structure
rule is more concerned with the management of certain large items in Klyde
Warren Park, regardless of any expression that those items may contain. This
is demonstrated by the various other Foundation rules that include tents and
tables as examples of structures. Because he cannot demonstrate a close
enough nexus between the structure rule and expression, Moore’s unbridled
discretion claim fails.
      3. The Structure Rule Is Not Unconstitutionally Vague
      The district court rejected Moore’s challenge to the structure rule under
the Fourteenth Amendment and held that “Moore has not demonstrated that
the Structure Rule is unconstitutionally vague.”      We agree.    Because the
structure rule arguably implicates Moore’s First Amendment rights and can
result in a trespass citation or quasi-criminal penalty, we apply the standard
for a vagueness challenge to a criminal statute. See Roark & Hardee LP v. City
of Austin, 522 F.3d 533, 552 (5th Cir. 2008); Ford Motor Co. v. Tex. Dep’t of
Transp., 264 F.3d 493, 508 (5th Cir. 2001). A criminal law is unconstitutionally
vague if it (1) “fails to provide those targeted by the statute a reasonable
opportunity to know what conduct is prohibited” or (2) “is so indefinite that it
allows arbitrary and discriminatory enforcement.” A.M. ex rel. McAllum v.
Cash, 585 F.3d 214, 224–25 (5th Cir. 2009) (quoting Women’s Med. Ctr. of N.W.
Hous. v. Bell, 248 F.3d 411, 421 (5th Cir. 2001)).


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                                  No. 16-11335
      Here, the structure rule is not unconstitutionally vague.        Given the
structure rule’s across-the-board applicability to all items larger than four feet
by four feet, an individual would have a reasonable opportunity to know that
any item fitting that description likely cannot be brought into the park without
first obtaining a permit. By its very nature, “structure” appears to be a broad
term used to encompass any number of different items that the Defendants
hoped to prevent from entering the park and cluttering up the available space.
See Int’l Soc’y For Krishna Consciousness of Hous., Inc. v. City of Houston, 689
F.2d 541, 553 (5th Cir. 1982) (“The terms in question have a common, well-
understood meaning sufficiently plain to put on fair notice those subject to the
ordinance.”). Finally, we disagree with Moore’s contention that Defendants’
decision to argue that the structure rule applies after Moore initiated suit
demonstrates the rule’s vagueness. This argument does not accurately portray
the facts, as before the litigation ever began, Defendants stated in their
response to Moore’s initial letter that the structure rule may apply. But more
importantly, it does not automatically follow that Defendants’ decision to focus
on the structure rule’s application to Moore demonstrates its vagueness.
      At bottom, Moore cannot demonstrate a substantial likelihood of success
on the merits in his constitutional challenge to the structure rule. The district
court therefore did not err in denying Moore’s preliminary injunction in favor
of Defendants.
B. Public Event Rule
      The district court held that Moore’s claim regarding the public event rule
was moot based on the Defendants’ concession that Moore’s activity did not
constitute a public event. We agree.
      “[A]ny set of circumstances that eliminates the actual controversy after
the commencement of a lawsuit” generally “renders the claim moot.” Fontenot
v. McCraw, 777 F.3d 741, 747 (5th Cir. 2015) (quoting Ctr. for Individual
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                                       No. 16-11335
Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006)).                       A defendant
making such a claim of mootness “bears the formidable burden of showing that
it is absolutely clear the allegedly wrongful behavior could not reasonably be
expected to recur.” Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)). A government entity, however,
bears a lighter burden to prove that challenged conduct will not recur. See
Stauffer v. Gearhart, 741 F.3d 574, 582 (5th Cir. 2014).                    This is because
“Government actors in their sovereign capacity and in exercise of their official
duties are accorded a presumption of good faith because they are public
servants, not self-interested private parties.” Sossamon v. Lone Star State of
Tex., 560 F.3d 316, 325 (5th Cir. 2009), aff’d sub nom. Sossamon v. Texas, 563
U.S. 277 (2011). 3 The goal of this inquiry is to determine whether Defendants’
actions are either “mere litigation posturing” or actually extinguish the
controversy. See Fontenot, 777 F.3d at 748 (quotation omitted).
       In their response to Moore’s motion for preliminary injunction,
Defendants explained that once Moore filed his complaint and explicitly
spelled out his intended form of speech, the Defendants and their counsel had
the opportunity to determine whether that speech actually violated the public
event rule. Defendants acknowledged that “there has been some confusion and
miscommunication about the appropriate terminology” between Moore and
members of the park staff given that the staff believed Moore wanted to speak
to a large crowd. But in light of the clarity brought by Moore’s complaint, “the
park . . . made clear that its public event rule does not apply to Plaintiff’s
desired activity.”




       3 We also generally defer to a narrowing construction by government officials that
avoids a finding of unconstitutionality. See, e.g., Voting for Am., Inc. v. Steen, 732 F.3d 382,
396–97 (5th Cir. 2013) (collecting cases).
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                                      No. 16-11335
       This behavior by Defendants is sufficient to moot Moore’s challenge to
the public event rule. Despite Moore’s arguments to the contrary, Defendants’
actions are not litigation posturing. Defendants appear to have sought to
protect the park and maintain it as a “pedestrian-friendly, urban linkage park
and plaza” that “provides a vibrant destination for cultural, civic, and social
opportunities to the City’s citizens.”            In attempting to promote this goal,
Defendants mistakenly barred constitutionally-protected conduct but then
realized the error of their ways very early in the litigation. As government
actors, Defendants’ statement of non-enforcement is entitled to a presumption
of good faith. Sossamon, 560 F.3d at 325. The Defendants’ promise to not
prosecute Moore for his one-on-one and small group communication is
therefore sufficient to meet Defendants’ “lighter” burden to prove that the
challenged conduct will not recur. Stauffer, 741 F.3d at 582. The district court
thus did not err when it held that Moore’s claims against the public event rule
were moot. 4
                                    IV. Conclusion
       This appeal comes to us at an initial stage in the litigation process.
Moore still has the opportunity to return to the district court, collect more
evidence, and pursue his claims on the merits. At this stage, however, Moore
has failed to carry his burden to demonstrate that the district court erred in
concluding that he did not demonstrate a substantial likelihood of success on
the merits of his challenges to the structure rule and the public event rule.
       AFFIRMED.




       4 Moore also argues before us that he still has both a live claim against the public
event rule for nominal damages and a live facial challenge to the public event rule. But
Moore waived these arguments by failing to raise them before the district court, and we do
not consider them on appeal. Celanese Corp. v. Martin K. Eby Constr. Co., Inc., 620 F.3d 529,
531 (5th Cir. 2010).
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