United States District Court, D. Nebraska
SHANE HARRINGTON, H & S CLUB OMAHA, INC., MELTECH, INC., and MIDWEST GIRLS CLUB, Plaintiffs,
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
Smith Camp, Chief United States District Judge.
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.
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
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. 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.
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.
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.
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.
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.”).
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)).
§ 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. 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
Section 20-112-Prohibition of Lewd Acts
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.
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.
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)).
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 § ...