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Sheets v. City of Punta Gorda

United States District Court, M.D. Florida, Fort Myers Division

November 22, 2019

ANDREW B SHEETS, individually Plaintiff,

          OPINION AND ORDER [1]


         Before the Court is Plaintiff Andrew Sheets' Motion for Preliminary Injunction (Doc. 27) and Defendant City of Punta Gorda, Florida's response in opposition (Doc. 42). The Court held oral argument on the matter. For these reasons, the Court denies the Motion.


         This is a case about video recording inside a government building. (Doc. 23). The City has a municipal ordinance prohibiting video and sound recording without the consent of those being recorded (the “Ordinance”). Punta Gorda Code § 15-48(e). This prohibition applies to City Hall and the City Hall Annex.[2] Id. at § 15-48(d)-(e). To test the Ordinance, Sheets went to City Hall wearing a body camera.

         Once inside, Sheets walked into the City clerk's office and asked for a copy of the Ordinance. The City employee behind the counter asked if she was being recorded and told Sheets that she did not consent to recording. Another City employee walked over and refused her consent too. In the end, the City employees gave Sheets a copy of the Ordinance, so he left City Hall and went to the City police station. There, Sheets asked to speak with the police chief before an officer issued him a trespass warning. The officer directed Sheets not to return to City Hall or the Annex for one year.

         Sheets filed a two-count Complaint, alleging First and Fourteenth Amendment violations. (Doc. 23). These claims are facial and as-applied challenges.


         “A preliminary injunction is an extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 689 (2008) (internal quotation marks and citation omitted). So preliminary injunctions are the exception, not the rule. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003). The point of this relief is to preserve the status quo until a final decision on the merits. Antoine on behalf of I.A. v. Sch. Bd. of Collier Cty., 301 F.Supp.3d 1195, 1202 (M.D. Fla. 2018).

         To justify a preliminary injunction, the movant must demonstrate (1) “a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). Movants must “clearly establish” their burden of persuasion on each element. Callahan v. U.S. Dep't of Health and Human Servs. through Alex Azar II, 939 F.3d 1251, 1257 (11th Cir. 2019) (citation omitted). If the first element is unproven, a court can deny preliminary injunction without considering the others. Pittman v. Cole, 267 F.3d 1269, 1292 (11th Cir. 2001).


         Sheets failed to show a substantial likelihood of success on the merits, which is necessary to get the extraordinary remedy of a preliminary injunction. The Court, therefore, need not analyze the remaining injunction elements, and it can simply deny the Motion. Id.

         A. First Amendment

         The Complaint's First Amendment challenge is facial and as applied. But neither the pleadings nor briefing distinguish between the two.[3]

         “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). Like all First Amendment protections, this right is “subject to reasonable time, manner and place restrictions.” Id. Here, the Court assumes without deciding that Sheets had a First Amendment right to record City employees while they worked in City Hall because the City does not argue otherwise. Having concluded Sheets had a First Amendment right, the Court must determine the scope of that right.

         “It is by now clear that the First Amendment does not guarantee access to property just because it is owned by the government.” Bloedorn v. Grube, 631 F.3d 1218, 1230 (11th Cir. 2011). Instead, “courts use ‘forum analysis to evaluate government restrictions on purely private speech that occurs on government property.'” Keister v. Bell, 879 F.3d 1282, 1288 (11th Cir. 2018) (quoting Walker v. Tex. Div. Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2250 (2015)). There are several different forums. Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 & n.11 (2010). One type is a limited public forum. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469-70 (2009). Here, the parties agree City Hall is a limited public forum. See also Punta Gorda Code § 15-48(d) (designating City Hall as a limited public forum).

         “This distinction matters because the type of forum determines the level of scrutiny applied.” Keister, 879 F.3d at 1288. Ordinances regulating speech in limited public forums are not subject to strict scrutiny. E.g., Summum, 555 U.S. at 469-70. This forum “exists where a government has reserved [it] for certain groups or for the discussion of certain topics.” Barrett v. Walker Cty. Sch. Dist., 872 F.3d 1209, 1224 (11th Cir. 2017) (alteration accepted) (quoting Confederate Veterans, 135 S.Ct. at 2250). So a limited public forum is not “open to the public at large for discussion of any and all topics.” Id. And it “can be set up to grant only ‘selective access' to [the] class” for which it is reserved. Id. (quoting Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679-80 (1998)). For that reason, regulating a limited public forum need not be content neutral. E.g., id. at 1225. Instead, restrictions on a limited public forum need only be (1) reasonable and (2) viewpoint neutral. Christian Legal, 561 U.S. at 679 & n.11.

         Here, Sheets did not carry his burden to show the Ordinance is unreasonable or viewpoint discriminatory. Thus, he is not entitled to the extraordinary and drastic remedy of a preliminary injunction that enjoins a municipal ordinance before trial. See Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990) (noting preliminary injunctions of legislative enactments “must be granted reluctantly and only upon a clear showing”).

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