                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
DEFENDING ANIMAL RIGHTS             )
TODAY AND TOMORROW,                 )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                 Civil Action No. 11-cv-00786 (ABJ)
                                    )
WASHINGTON SPORTS AND               )
ENTERTAINMENT, LP, et al.,          )
                                    )
                  Defendants.       )
____________________________________)


                                  MEMORANDUM OPINION

       On March 24, 2011, the Ringling Bros. and Barnum & Bailey circus came to town.

Compl. ¶ 8. On March 27, it packed up its tents and left. Id.

       During the nights that the circus was performing at the Verizon Center in the District of

Columbia, members of the organization Defending Animal Rights Today and Tomorrow

(“DARTT”), the plaintiff in this action, handed out leaflets concerning Ringling’s treatment of

animals. Compl. ¶ 10. According to both the plaintiff and the defendants, the leafleting activity

in question took place as the crowd of circus-goers exited the arena after each performance.

Riley Decl. ¶ 2; Alioto Decl. ¶ 8. On at least one of the evenings, there were approximately

seven protestors on hand to distribute fliers. Euler Decl.¶ 3.

        Plaintiff alleges that on March 24, Verizon Center employees directed the DARTT

members to move away from their position under the overhang that shelters the Verizon Center

doors “to the edge of the sidewalk,” Compl. ¶ 1; Riley Decl. ¶ 2, and that on March 25, a

Metropolitan Police Department officer instructed them “to move to a portion of the sidewalk
that was not underneath the overhang.” Compl. ¶ 14; Euler Decl. ¶ 3. 1 DARTT states that its

members “had the right to leaflet anywhere they chose on the sidewalk, provided that they were

not blocking egress or ingress or incommoding passersby,” Compl. ¶ 16, but they complied with

the instructions to move. Compl. ¶ 14. They contend that as a result, fewer circus patrons

accepted their fliers. Compl. ¶ 15; Riley Decl. ¶¶ 2-5; Euler Decl. ¶ 4.

       Plaintiff has moved for a preliminary injunction on behalf of its members “to prevent the

Defendants from interfering with their First Amendment right to peacefully and lawfully hand

out leaflets.” Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s Motion

for a Preliminary Injunction (“Pl.’s Memo.”) at 2. Since DARTT has alleged only that its

members will be seeking to “Defend[] Animal Rights . . . Tomorrow” and not “Today,” plaintiff

has failed to demonstrate that it is likely to suffer irreparable harm in the absence of preliminary

relief, and the motion will be denied.

       The complaint presents the question of whether directing the protesters to move their

leafleting activity from directly outside the arena doors to other points on the F Street sidewalk

was an unconstitutional infringement of their First Amendment rights, Compl. ¶ 2, or whether it

was reasonable restriction of the time, place, and manner in which they conducted one aspect of

their lawful activity. It also raises the questions, among others, of whether the instructions to



1       The photographs attached to the Declaration of Jeffrey Light, which is Exhibit 5 to
Plaintiff’s motion, depict the overhang. Plaintiff’s counsel avers that the concrete awning is
approximately 21 feet wide, Light Decl. ¶ 4, and defendant Washington Sports and
Entertainment, LP (“WSE”) does not challenge his measurements. See Defendant WSE’s
Opposition to Plaintiff’s Motion for Preliminary Injunction (“WSE Opp’n”) at 11 n.6. The
photographs and map attached to the Light Declaration reflect the fact that there is a strip of
sidewalk between the edge of the overhang and the curb directly in front of the arena, and that a
wider swath of sidewalk extends from the sides of the overhang to the end of the block in both
directions. The sidewalk leads directly to the entrance to the Metro at 7th and F Streets, N.W.
See Ex. 2 to Light Decl.


                                                 2
move – if they were improper – were issued pursuant to the governmental policy or custom that

is the necessary predicate for municipal liability, see Monell v. New York City Dep’t of Social

Services, 436 U.S. 658, 694 (1978) and Feirson v. District of Columbia, 506 F.3d 1063, 1066

(D.C. Cir. 2007), whether defendant Washington Sports and Entertainment, LP (“WSE”) is a

state actor, and whether the defendants can appropriately characterize the undifferentiated

portion of the F Street sidewalk that is shaded by the concrete overhang as “private property.”

See WSE Opp. at 5-7; Defendant District of Columbia’s Opposition to Plaintiff’s Motion for

Preliminary Injunction (“DC Opp’n”) § III; Riley Decl. ¶ 4; and Alioto Decl. ¶ 9. 2 But the court

need not address those matters at this time. “[A] court may deny a motion for preliminary

injunction and not address the remaining three factors where a plaintiff fails to establish

irreparable harm.” Fraternal Order of Police, Library of Congress Labor Committee v. Library

of Congress, et. al., 639 F. Supp. 2d 20, 24 (D.D.C. 2009) (citing CityFed Fin. Corp. v. Office of

Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)).

       A party seeking a preliminary injunction must establish the following: 1) he is likely to

succeed on the merits; 2) he is likely to suffer irreparable harm in the absence of preliminary

relief; 3) the balance of equities tips in his favor; and 4) an injunction serves the public interest.



2        In its opposition, WSE does not claim ownership of the entire space under the overhang,
but it takes the position that the first 8 ½ feet outside the arena doors are private property because
they are part of the Verizon Center leasehold. See WSE Opp’n at 5. WSE characterizes this
space as “clearly set back from the main façade of the building,” “obviously not part of the
thoroughfare sidewalk,” and “not a seamless component of the urban grid.” Id. This rhetoric
seems strained in light of the photographs in the record, see Light Decl., and the videotaped
material submitted to the court by WSE. See Exhibit A to Touhey Decl. The distinctions
advanced by WSE may not be readily apparent to the ordinary pedestrian. But even if the legal
boundary of the Verizon Center is accurately described in WSE’s materials, see Stranix Decl.,
the area under the concrete canopy that the protesters were told to vacate would include both
public and private space. See WSE Opp’n at 11 n. 6 (“[T]he width of the canopy over the public
portion of the sidewalk would be approximately 14.5 feet.”) In any event, the Court does not
need to ascertain the legal status of the sidewalk to rule on this motion.
                                                  3
Winter v. Natural Resources Defense Council, Inc., et. al., 555 U.S. 7, 129 S. Ct. 365, 374

(2008). The Supreme Court spoke clearly in Winter:

        Our frequently reiterated standard requires plaintiffs seeking preliminary relief to
        demonstrate that irreparable injury is likely in the absence of an injunction.

                                              ***
        Issuing a preliminary injunction based only on a possibility of irreparable harm is
        inconsistent with our characterization of injunctive relief as an extraordinary
        remedy that may only be awarded upon a clear showing that the plaintiff is
        entitled to such relief.

Id. at 375-76 (emphasis in original). 3

3        A number of circuits, including the D.C. Circuit, have historically evaluated the four factors
utilizing what has been referred to as a “sliding scale” approach. See Davis v. Pension Benefit Guar.
Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). The Court of Appeals articulated the balancing test in
CityFed Fin. Corp: “if the arguments for one factor are particularly strong, an injunction may issue
even if the argument in other areas are rather weak . . . . An injunction may be justified . . . where
there is a particularly strong likelihood of success on the merits even if there is a relatively slight
showing of irreparable injury.” CityFed Fin. Corp., 58 F. 3d at 747. It is questionable whether this
formulation has survived Winter. See Davis, 571 F.3d at 1297 (Kavanaugh, J., and J. Henderson
concurring). In Winter, the Supreme Court specifically rejected the Ninth Circuit’s reasoning that
“when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary
injunction may be entered based only on a ‘possibility’ of irreparable harm.” Winter, 129 S. Ct. at
375. The Court found that standard to be “too lenient.” Id. Thus, setting the bar at a “relatively
slight showing,” see CityFed Fin. Corp., 58 F.3d at 747, is not likely to pass muster either. But it is
not necessary to settle the question of the viability of the sliding scale approach to decide this case.
Even when the balancing test was the clear governing standard, the D.C. Circuit warned: “[d]espite
this flexibility, we require the moving party to demonstrate at least ‘some injury’ . . . since ‘[t]he
basis of injunctive relief in the federal courts has always been irreparable harm.’’ Id. Plaintiff here
has failed to demonstrate any injury.
         Furthermore, it is not clear that plaintiff has demonstrated the “particularly strong” likelihood
of success on the merits that would have warranted a relaxation of the other factors under the flexible
approach. DARTT’s members were not deprived of the right to leaflet entirely, and they were
permitted to remain on the sidewalk on F Street where departing patrons would be walking. They
not only handed out leaflets, but they expressed their views orally, amplified by a megaphone, Alioto
Decl. ¶ 8, and they projected words and images onto the side of the Verizon Center itself. See Euler
Decl. at 3 (attached photograph); Alioto Decl. ¶ 8. Plaintiff does not claim that these other
expressive activities were curtailed in any way, and the record is devoid of any evidence suggesting,
as plaintiff intimates, that the restrictions on the leafleting were related to the content of the fliers.
See, e.g., Pl.’s Memo at 18. Plaintiff disputes Sgt. Alioto’s declaration that the protestors were asked
to move because they were obstructing the exit, and the videotapes provided by WSE may shed some
light on that issue. See Ex. A to Touhey Decl. But there is no dispute that the DARTT members
were directed to move further from the doors at the time when seven to ten thousand patrons were
trying to exit. Riley Decl. ¶ 2; Touhey Decl. ¶ 3; see also Pl.’s Memo. at 1 (referring to “the 20,000
seat Verizon Center”).
                                                    4
       Here, plaintiff has not demonstrated even a possibility of irreparable injury. According to

the allegations in the complaint, plaintiff’s members sought to distribute fliers concerning the

treatment of animals by the Ringling Brothers circus while the circus was in residence at the

Verizon Center. The complaint states that they were instructed to move away from the arena

doors on both March 24 and 25. But DARTT did not seek the Court’s intervention at that time,

and this action was not filed until April 25. Plaintiff’s members state that it is their present

intention to distribute similar material when the circus returns, but that will not occur until March

2012. See Pl.’s Memo. at 7; Ortberg Decl. ¶ 9; Touhey Decl. ¶4. 4 According to their own

papers, then, plaintiff’s members are not at this time attempting to engage in any activity that

may be constitutionally protected, and the defendants are not currently interfering with their

freedom of expression in any way. Furthermore, plaintiff does not intend to attempt to engage in

leafleting activity on F Street again unless and until the circus returns. Thus, plaintiff has not

alleged that its members would suffer any injury – much less an irreparable one – if the Court did

not order preliminary relief at this time.

       To be irreparable, an injury must be “certain and great,” “actual and not
       theoretical,” and “of such imminence that there is a clear and present need for
       equitable relief to prevent irreparable harm.” The injury must also be “beyond
       remediation.”




4        In light of these circumstances, defendants argue that plaintiff’s claims are merely
hypothetical and are therefore non-justiciable and unripe. See DC Opp’n § II; WSE Opp’n at 1-
3. They also contend that the contingent and conjectural nature of the alleged injury means that
plaintiff lacks standing to bring an injunctive action. See DC Opp. § II; WSE Opp. at 4. Since
the motion for preliminary injunction will be denied on other grounds, and since the plaintiff has
not had a full opportunity to reply to WSE’s arguments under the schedule required for the
resolution of a motion for preliminary injunction, the Court does not reach this issue at this time.
This ruling does not preclude consideration of those issues in connection with future dispositive
motions.
                                                 5
Fraternal Order of Police Library of Congress Labor Comm., 639 F. Supp. 2d at 24 (quoting

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).

       The sole comment offered by the plaintiff to meet its burden to show the likelihood of

irreparable harm is the following:

       Given that the median delay between filing and trial in a civil case is over 40
       months . . . the circus will surely come to Verizon Center again before this Court
       has had an opportunity to make a final decision on the merits.

Pl.’s Memo. at 18 (citations omitted). This prediction cannot fairly be characterized as an

“injury” – it is simply an observation about scheduling. In its reply, plaintiff cites Wisconsin Gas

Co. v. F.E.R.C., 758 F.2d 669 (D.C. Cir. 1985), for the proposition that it has presented sufficient

evidence to support a finding that a future injury is “likely” to occur. But as the court stated in

that case, “[t]he key word in this consideration is irreparable . . . The possibility that adequate

compensatory or other corrective relief will be available at a later date, in the ordinary course of

litigation weighs heavily against a claim of irreparable harm.” Id. at 674. The plaintiff’s desire

for a prompt resolution of the underlying issues can be accommodated with a properly tailored

scheduling order.

       Based upon a consideration of the motion, the oppositions, plaintiff’s reply brief, the

record of this case, and for the reasons set forth above, an order will issue denying the motion for

preliminary injunction.



                                                       /s/
                                              AMY BERMAN JACKSON
                                              United States District Judge

DATE: May 24, 2011




                                                 6
