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Harrington v. Strong

United States District Court, D. Nebraska

August 23, 2018

SHANE HARRINGTON, H & S CLUB OMAHA, INC., MELTECH, INC., and MIDWEST GIRLS CLUB, Plaintiffs,
v.
SUSAN STRONG, PETE RICKETTS, THERESA THIBODEAU, PATTY BROOKS, DOUG PETERSON, HOBERT RUPE, ROBERT BATT, JOHN BOLDUC, BRENDA KONFRST, JEAN STOTHERT, TODD SCHMADERER, KEN KANGER, MICHELLE BANG, COLENE HINCHY, PAUL KRATZ, AIMEE MELTON, CHRIS JERRAM, JOHN AND JANE DOE NEBRASKA STATE PATROL OFFICERS #1-#800, In Their Individual Capacities and Official Capacities as Employees of the State of Nebraska; THE CITY OF OMAHA NEBRASKA, JOHN DOE BUILDING INSPECTORS #1 AND #2, JOHN DOE OMAHA POLICE OFFICERS #1 - #10, In Their Individual Capacities and Official Capacities as Employees of the City of Omaha Nebraska; and JOHN AND JANE DOE OMAHA POLICE OFFICERS #1 - #900, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp, Chief United States District Judge.

         This matter is before the Court on the Motion for Preliminary Injunction, Temporary Restraining Order, and Declaratory Judgment, ECF No. 5, filed by Plaintiffs Shane Harrington, H&S Club Omaha, Inc., Meltech, Inc., and Midwest Girls Club (collectively, Plaintiffs). For the reasons stated below, Plaintiffs' request for a temporary restraining order will be denied.

         BACKGROUND

         Plaintiff Shane Harrington is a resident of Omaha, Nebraska, and the principal officer and part owner of Plaintiffs H & S Club Omaha, Inc., Midwest Girls Club, and Meltech, Inc., each Nebraska corporations. On March 1, 2017, Plaintiff H & S Club Omaha, Inc., entered into a three-year lease for the property at 7301 Farnam Street in Omaha and opened a private-member establishment called Club Omaha. Club Omaha offers live nude dancing as its primary form of entertainment. Although Club Omaha does not possess any liquor license under the Nebraska Liquor Control Act (NLCA) or sell or otherwise provide its members with alcohol, it permitted members to bring in their own alcohol for consumption, prior to the enactment of the legislation described below.

         On April 18, 2018, the Nebraska Legislature passed L.B. 1120, which included, among other things, new licensure requirements for “bottle clubs.” Neb. Laws L.B. 1120, 106th Leg. Second Reg. Sess. (2018). The bill took effect on July 19, 2018. Neb. Rev. Stat. § 53-101 et seq. On August 14, 2018, the Omaha City Council passed Ordinance #41532, which amended certain sections of Chapter 15 of the Omaha Municipal Code-titled Liquors-to “include regulations for bottle clubs consistent with state statutes.” Ex. 101.[1] Ordinance #41532 states that its provisions will take effect “fifteen days from and after the date of its passage.” Id. at 9. Previously, on May 16, 2017, the Omaha City Council passed Ordinance #41153, which amended §§ 18-90 and 18-91 of Chapter 18 of the Omaha Municipal Code-titled Nuisances. Ex. 102. The amendments in Ordinance #41153 have been codified in §§ 18-90 and 18-91 of the Municipal Code. Omaha, NE, Municipal Code §§ 18-90, 18-91. In their Complaint, Plaintiffs claim, among other things, that provisions of the NLCA, Ordinance #41532, and §§ 18-90 and 18-91 of the Omaha Municipal Code are unconstitutional both facially and as applied. After L.B. 1120 took effect on July 19, 2018, Club Omaha members were not permitted to consume alcohol inside Club Omaha, though Plaintiffs indicated the members may consume alcohol in Club Omaha's parking lot.

         On July 21, 2018, Plaintiff Shane Harrington and several women stood at the intersection of 72nd and Dodge Streets in Omaha holding signs that read “Honk if you [heart] boobs.” Harrington wore underwear and the women wore flesh-colored g-strings and areola pasties. The Omaha Police Department received several reports of naked protesters at the intersection. When officers arrived, they monitored the scene and eventually informed Harrington that their commanding officers were considering whether citations for lewd conduct were warranted and that they would have to issue citations if ordered by the commanding officers. Ex. 5. Shortly thereafter, Harrington and the women left the intersection. Three days later, on July 24, 2018, the Omaha City Prosecutor issued a public statement in the Omaha World Herald newspaper that the conduct of Harrington and the women on July 21, 2018, did not violate any City laws. Kuhse Aff., Ex. 103. Neither Harrington nor any of the women have engaged in similar conduct since July 21, 2018.

         On August 13, 2018, Plaintiffs filed their Complaint, ECF No. 1, and, the next day, filed their Motion for Preliminary Injunction, Temporary Restraining Order, and Declaratory Judgment, ECF No. 5. The Court held a hearing on August 20, 2018, and informed the parties that the hearing was limited to Plaintiffs' request for a temporary restraining order. As such, this Memorandum and Order is also limited to determining whether Plaintiffs are entitled to a temporary restraining order. Plaintiffs specifically ask the Court to (1) enjoin enforcement of Omaha Municipal Code § 20-112 (prohibiting lewd acts), (2) enjoin enforcement of Ordinance #41532, and (3) enjoin the City of Omaha from entering Plaintiffs' property without a warrant. ECF No. 5, Page ID 97. Accordingly, the Court's analysis will be limited to these specific requests for temporary injunctive relief.

         DISCUSSION

         Courts in the Eighth Circuit apply the factors set forth in Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc), when determining whether to issue a preliminary injunction or temporary restraining order. Those factors are: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Id. “No single factor is determinative.” WWP, Inc. v. Wounded Warriors, Inc., 566 F.Supp.2d 970, 974 (D. Neb. 2008). “A preliminary injunction is an extraordinary remedy and the burden of establishing the propriety of an injunction is on the movant.” Roudachevski v. All-Am. Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citing Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003)).

         Plaintiffs argue the threatened irreparable harm in this case is a violation of their First Amendment rights. Pl.'s Br., ECF No. 5-1, Page ID 103. “It is well-settled law that a ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'” Phelps-Roper v. Nixon, 509 F.3d 480, 484 (8th Cir. 2007) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). It is also “always in the public interest to protect constitutional rights[ ]” and “[t]he balance of equities, too, generally favors the constitutionally-protected freedom of expression.” Nixon, 509 F.3d at 485 (internal quotations omitted). Therefore, because Plaintiffs' asserted irreparable harm is a deprivation of First Amendment rights, the Court will focus on whether Plaintiffs have demonstrated a likelihood of success on the merits with respect to their First Amendment claims. See id. (“In a First Amendment case, . . . the likelihood of success on the merits is often the determining factor in whether a preliminary injunction should issue.”).

         The Eighth Circuit has recognized two standards for evaluating a movant's likelihood of success on the merits. Generally, the movant must only demonstrate a “fair chance of prevailing.” 1-800-477-Pain Referral Serv., LLC v. Otto, 744 F.3d 1045, 1054 (8th Cir. 2014). Where the movant seeks “to enjoin the implementation of a duly enacted state statute, however, the moving party must make a more rigorous showing that it is ‘likely to prevail on the merits.'” Planned Parenthood of Ark & E. Okla. v. Jegley, 864 F.3d 953, 957-58 (8th Cir. 2017) (quoting Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 733 (8th Cir. 2008)). This “more rigorous standard ‘reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.'” Rounds, 530 F.3d at 732 (quoting Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995)).

         Because § 20-112 of the Omaha Municipal Code and Ordinance #41532 are laws enacted by the Omaha City Council “through presumptively reasoned democratic processes, ” Plaintiffs must meet the more rigorous standard of showing they are likely to prevail on their claims that the laws are unconstitutional before the Court will enjoin their application.[2] See Rounds, 530 F.3d at 732; Fort Des Moines Church of Christ v. Jackson, 215 F.Supp.3d 776, 793 (S.D. Iowa 2016) (applying the more rigorous likely-to-prevail standard to a challenge to city ordinances).

         I. Section 20-112-Prohibition of Lewd Acts

         Plaintiffs argue § 20-112 is unconstitutionally overbroad and vague. They also argue it violates the First Amendment as applied to their conduct on July 21, 2018.

         Section 20-112 provides “[i]t shall be unlawful for any person purposely or knowingly to do a lewd act.” Omaha, NE, Municipal Code § 20-112. Section 20-111 provides that “a ‘lewd act' shall mean any act of a sexual nature which is offensive to the average person of a group which is intended or likely to observe it.” Omaha, NE, Municipal Code § 20-111.

         a. Overbreadth

         “The First Amendment overbreadth doctrine . . . provides an avenue ‘whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'” Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 864 F.3d 905, 912 (8th Cir. 2017) (quoting SOB, Inc. v. City of Benton, 317 F.3d 856, 864 (8th Cir. 2003)). “For a federal court to entertain a facial challenge pursuant to the First Amendment overbreadth doctrine, ‘there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.'” Id. (quoting Jacobsen v. Howerd, 109 F.3d 1268, 1274 (8th Cir. 1997)). “‘Facial challenges are disfavored' because they ‘often rest on speculation . . . and raise the risk of premature interpretation of statutes on the basis of factually barebones records.'” Josephine, 864 F.3d at 912 (quoting Phelps-Roper v. City of Manchester, 697 F.3d 678, 685 (8th Cir. 2012)).

         Plaintiffs summarily contend that § 20-112 is facially overbroad because the term “lewd, ” on its own, encompasses conduct protected by the First Amendment. They admittedly failed to realize, however, that § 20-111 specifically defines a “lewd act.” As such, they presented no argument, either in their brief or at oral argument, that § 20-112 read in conjunction with § ...


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