Opinion
NO. CIV. S-07-1625 LKK/KJM.
September 15, 2008
ORDER
Plaintiffs are individuals who have brought suit against the City of Stockton, various city officials, and the International Facilities Group ("IFG"), alleging violations of their rights of free speech under the United States and California Constitutions in conjunction with their attempts to videotape and speak to the public outside of performances of the Ringling Bros. — Barnum Bailey Circus ("Ringling Bros."). They seek damages, declaratory relief, and injunctive relief.
Pending before the court is the plaintiff's motion for a preliminary injunction to enjoin defendants from infringing on plaintiffs' rights during the September 2008 circus performance in Stockton and a motion for declaratory relief. For the reasons discussed herein, the court grants the motion for a preliminary injunction but defers declaratory relief to a full trial.
I. BACKGROUND AND FACTS
Defendant IFG objects to plaintiffs' submission of a DVD containing video clips, offered as Exhibit A to the Declaration of Joseph Cuviello in support of plaintiffs' motion. IFG contends that these video clips were not disclosed as part of plaintiffs' initial disclosures, the deadline for which was March 7, 2008.See Order, Feb. 6, 2008, at 1. For this reason, the court disregards this exhibit in resolving the instant motion.
Defendants also objected to several items of evidence offered by plaintiffs in support of the motions. Some of the evidence to which defendants object is irrelevant to the court's analysis of the motions. To the extent that the evidence is relevant, defendants' objections are OVERRULED.
Plaintiffs are individuals who assert they have an interest in the welfare of animals and, to that end, have engaged in certain activities when the Ringling Bros. Circus has performed at the Stockton Arena in 2006 and 2007. Complaint ¶ 24; Declaration of Deniz Bolbol in Support of Plaintiff's Motion for Preliminary Injunction and Declaratory Relief ("Bolbol Decl.") ¶ 3; Declaration of Joseph Cuviello in Support of Plaintiff's Motion for Preliminary Injunction and Declaratory Relief ("Cuviello Decl.") ¶ 3. Specifically, they have passed out leaflets to patrons and videotaped animals outside of the arena. Bolbol Decl. ¶ 3; Cuviello Decl. ¶ 3.
The plaintiffs have presented evidence regarding their attempts at communicating with circus patrons and videotaping near the Stockton Arena at the time of the 2006 circus. On August 28, 2006, Bolbol and Cuviello observed that part of West Washington Street was closed, near the Arena. Bolbol Decl. ¶¶ 4-5; Cuviello Decl. ¶¶ 4-5. Bolbol was prohibited by Stockton Police officers from accessing the blocked portion of the street. Bolbol Decl. ¶ 5. She videotaped this interaction. See Cuviello Decl., Ex. A.
The plaintiffs have admitted that IFG did not prevent them from accessing this area. Rizzardi Decl. ¶ 2, Ex. B-C.
On August 31, 2006, Bolbol and Cuviello approached the Arena for the purpose of holding signs and banners and distributing information to circus patrons. Bolbol Decl. ¶ 6; Cuviello Decl. ¶ 6. Once on the Arena property, plaintiffs were approached by Stockton Police Lieutenant Trulsson, who informed plaintiffs that the area was private property and if the Arena staff believed plaintiffs to be trespassing, it is Stockton Police policy to honor this as a citizens' arrest. Bolbol Decl. ¶¶ 7-8; Cuviello Decl. ¶¶ 8-9. The plaintiffs videotaped this encounter. See Cuviello Decl., Ex. A.
The City of Stockton owns the Arena and area surrounding it, but leases it to IFG, who manages it. Drake Decl. ¶ 3, Ex. A. The plaintiffs do not precisely describe which areas around the Arena they tried to enter, but describe them as the queuing areas at the front and back entrances of the Arena and near the "animal open house." See Drake Decl. Ex. F (deposition of Joseph Cuviello at 167:10-168:2).
After being turned away, Bolbol went to the Arena's back parking lot. Bolbol Decl. ¶ 10. There, an IFG representative informed Bolbol that she could not be on Arena property without a ticket. Id. Bolbol left the property. Id. She videotaped this encounter. See Cuviello Decl., Ex. A.
On September 2, 2006, Bolbol returned to the Arena property to hand out leaflets to patrons. Bolbol Decl. ¶ 11. She was approached by an IFG representative, who informed her that she would be held for trespass if she was on the property without a ticket. Id. She left the property. Id. This encounter was also videotaped. See Cuviello Decl., Ex. A.
In September 2007, the Ringling Bros. circus returned to the Stockton Arena. Prior to the circus' arrival, the Stockton Assistant City Attorney requested a phone conference in which plaintiffs participated. Cuviello Decl. ¶ 12. Other employees of the City of Stockton and of IFG also participated. Declaration of Kimberly Drake In Support of Defendants City of Stockton, Michael Rishwain and Lt. Chris Trulsson's Opposition to Plaintiff's Motion for Preliminary Injunction ("Drake Decl.") ¶ 7, Ex. E (deposition of Deniz Bolbol at 98:8-98:25). Plaintiffs informed the Assistant City Attorney that they had received a preliminary injunction from the Northern District of California in a case they believed was similar and provided a copy of the injunction to her. Id.; see also Declaration of Jonathan Rizzardi in Support of Defendant International Facilities Group's Opposition to Plaintiffs' Motion for Preliminary Injunction ("Rizzardi Decl.") ¶ 10. Later, they met with Stockton Police Lieutenant Paoletti, who agreed to allow plaintiffs the access they sought around the Arena. Cuviello Decl. ¶ 12; see also Rizzardi Decl. ¶ 10.
Once Ringling Bros. had arrived, Cuviello again sought to engage in the leafletting and videotaping around the Arena, which he had endeavored to do the previous year. Cuviello Decl. ¶ 13. At one street, he was initially not permitted access to a portion that had been blocked off. Id. However, Lieutenant Paoletti arrived and permitted plaintiff's access. Id. A few days later, Cuviello again accessed the street, although a police officer and Ringling Bros. representative attempted to stop him. Id. He also accessed the area around the Arena where patrons were waiting in line, from which he had been restricted the previous year. Drake Decl. ¶ 8, Ex. F (deposition of Joseph Cuviello at 168:14-168:25).
Plaintiff Bolbol acknowledged in her deposition that plaintiffs "were able to exercise their rights in 2007 on the [Arena] property." Rizzardi Decl. ¶ 9. She also acknowledged that City officials were no longer acting with deliberate indifference to protect the constitutional rights of people within the City, as plaintiffs had alleged in their complain. Drake Decl. ¶ 7, Ex. E (deposition of Deniz Bolbol at 187:11-187:22).
II. STANDARDS
A. Standard for a Preliminary Injunction
A preliminary injunction may issue if the movant shows either "a combination of probable success and the possibility of irreparable harm, or that serious questions are raised and the balance of hardship tips in its favor." Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir. 2000). At a minimum, the movant must show "a fair chance of success on the merits, or questions serious enough to require litigation" and a significant threat of irreparable injury.Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). The Ninth Circuit conceives this standard as "two interrelated legal tests" operating along a continuum. Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983). At one end of the continuum, the moving party may succeed if it shows that there is a probability of success on the merits as well as a possibility of irreparable injury. Golden Gate Restaurant Ass'n. v. City and County of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008). At the other end, the moving party may succeed if it shows that it has raised "serious legal questions" and that "the balance of hardships tips sharply in its favor." Id. at 1116 (quoting Lopez, 713 F.2d at 1435). Finally, in certain cases, the court should consider whether the issuance of the injunction would advance the public interest. Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980).
B. Standard for Declaratory Relief
Declaratory judgment is proper when it "will clarify and settle the legal relations at issue and whether it will afford relief from the uncertainty and controversy giving rise to the proceedings." McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339, 342 (9th Cir.) (citing Borchard, Declaratory Judgments 299 (2d ed. 1941)), cert. denied, 385 U.S. 919 (1966). A court declaration delineates important rights and responsibilities and can be "a message not only to the parties but also to the public and has significant educational and lasting importance." Bilbrey by Bilbrey v. Brown, 738 F.2d 1462, 1471 (9th Cir. 1984). It is warranted where the controversy at issue is compellingly immediate and non-speculative. Id.
III. ANALYSIS
Plaintiffs seek both a preliminary injunction and a declaratory judgment addressing their right to engage in communicative activities near the Stockton Arena during the Ringling Bros. engagement here. As discussed below, the court concludes that, under the circumstances, a preliminary injunction should issue but that any declaratory relief must await trial on the merits or summary judgment, if appropriate. A declaration of rights is a final judgment on the merits and thus must await disposition on the merits. A preliminary injunction, on the other hand, being preliminary, need not await final disposition.A. Notice of the Scope of the Preliminary Injunction
All defendants observe that plaintiffs did not file a proposed order with a provision for a bond with their motion, as required by Local Rule 65-231(d)(2)(iii). Defendants contend that plaintiffs' motion should be denied for failing to comply with the local rules and because, absent the draft order, plaintiffs' motion is too vague to provide notice of to what areas plaintiffs seek access.
The proposed order was filed on September 2, 2008, several days after defendants' oppositions were filed.
A court may not issue a preliminary injunction without notice to the opposing party. Fed.R.Civ.P. 65(a)(1); see also Gray Goose Foods, Inc. v. Brotherhood of Teamsters Auto Truck Divers Local No. 70, 415 U.S. 423, 433 n. 7 (1974) (explaining that Rule 65(a)'s requirement allows the opposing party "a fair opportunity to oppose the application and prepare for such opposition"). The court does not agree that the failure to include a proposed order, while inconsistent with good practice, constitutes a lack of notice to defendants as to what plaintiffs seek, so as to prevent defendants from framing an effective response to the motion. It appears from plaintiffs' motion and supporting documents that they seek access to the areas outside the Stockton Arena, including the queuing areas, and to the public streets around the Arena. The proposed order that was filed on September 2 confirms that this is the scope of the injunction sought by plaintiffs, and therefore it appears that defendants were not prejudiced by the omission.
Plaintiffs are cautioned, however, that failure to adhere to the local rules are grounds for sanctions, including, when warranted, the dismissal of the action. See Local Rule 11-110. Future instances of non-compliance will not be treated with similar generosity.
B. Preliminary Injunction Against City of Stockton and Its Employees
1. Likelihood of Success On the Merits
As described above, a preliminary injunction may issue only upon plaintiffs' showing that both the likelihood of success on the merits and the possibility of irreparable injury favor the injunction's issuance, although those factors need not be present to the same degree. Golden Gate Restaurant Ass'n, 512 F.3d at 1115-16. Plaintiffs contend that the City of Stockton, Chris Trulsson, and Michael Rishawn ("City defendants") infringed on plaintiffs' free speech rights under the United States and California Constitutions. That assertion is considered first.
Under both the California and United States Constitutions, "permissible restrictions on expression in public fora must be content-neutral, be narrowly tailored to serve an important government interest, and leave open ample alternative channels for the communication of the message." Kuba v. 1-A Agr. Ass'n., 387 F.3d 850, 856 (9th Cir. 2004). It appears from plaintiffs' motion that their complaint against the City defendants concerns the latter's blocking of certain public streets around the Arena. Public streets are quintessential public fora. Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 802 (1985).
In their reply brief and at oral argument, plaintiffs raise for the first time the argument that by the City's acceptance of IFG's citizens' arrests, an agency relationship existed between the City and IFG. Thus, they contend that the City is responsible for any Constitutional violations perpetrated by IFG. It is improper for the court to rely on arguments raised in the first instance in a reply brief. See Von Brimer v. Whirlpool Corp, 536 F.2d 838, 846 (9th Cir. l976). Nevertheless, the court cannot ignore the implications of the facts asserted. If plaintiffs' contention is true and the City officers have a blanket policy of honoring citizens arrests made by IFG for trespass, this presents additional concerns. Although this appears to lie outside the purview of the complaint, a government entity may not delegate its police power to a private party. See generally Stephens v. City of Vista, 994 F.2d 650 (9th Cir. 1993), as amended on denial of reh'g (Aug. 4, 1993). Additionally, it is unlawful for an officer to arrest without probable cause or an arrest warrant,Knox v. Southwest, 124 F.3d 1103, 1107 (9th Cir. 1997), which may render the City's policy of accepting IFG's citizens arrests unconstitutional. See, e.g., Corcoran v. Fletcher, 160 F. Supp. 2d 1085, 1092 (C.D. Cal. 2001).
The dispositive issue, then, is whether the City defendants' restrictions on plaintiffs' speech was content-neutral, narrowly tailored to serve an important government interest, and left ample alternative channels for communication. See Kuba, 387 F.3d at 856. Here, the evidence tendered by plaintiffs of the City defendants' restrictions on speech was the blocking of part of West Washington Street on August 28, 2006 and officers' attempts to block the plaintiffs from accessing a portion of the same street on September 12 and 16, 2007. Bolbol Decl. ¶¶ 6-10; Cuviello Decl. ¶¶ 6-10, 13.
The evidence tendered reveals that, in 2006, a portion of the street and sidewalk was blocked by posted officers and by a "No Pedestrians" sign. Drake Decl. Ex. E (deposition of Deniz Bolbol at 119:14-119:19). There is no direct evidence that the City defendants' blocked plaintiffs' access to a portion of the street based on the content of their speech, rather, it appears that access by all pedestrians was restricted. According to plaintiffs' declarations, however, they were there to videotape the animals during the animals' walk to the Arena. See Cuviello Decl. ¶¶ 4-5; Bolbol Decl. ¶¶ 4-5. See Fordyce v. City of Seattle, 55 F.3d at 436, 439 (9th Cir. 1995) (recognizing a First Amendment right under the United States Constitution to "film matters of public interest").
The Stockton Police's Operations Order regarding the event, however, refers to an expectation of the presence of animal rights groups and activists. The Order directs officers that "protesters must remain on public sidewalks or other public areas without obstructing vehicular or pedestrian traffic" and does not otherwise advise officers to restrict activists' activities. Drake Decl., Ex. C. It may, however, be reasonable to infer that individual police officers, after having been alerted to the possibility of animal rights activists, would have presumed plaintiffs to be videotaping them. See Drake Decl., Ex. C (2006 Operations Order advising officers that animal rights activists "have gone so far as to videotape Officers confronting protesters"). Thus, it is possible, though not necessarily a finding, the City's street closure was directed, at least in part, at plaintiffs based on the content of plaintiffs' first amendment activities.
Even if the City's street closure was content-neutral, the plaintiffs contend that the defendants' restrictions on speech were not narrowly tailored to serve an important government interest. Defendants assert that the relevant portion of West Washington Street was closed "to reduce traffic congestion" and "to ensure the safety of the animals, walk participants, officers and the public." Defendants City of Stockton, Michael Rishwain, and Lt. Cris Trulsson's Opposition to Plaintiffs' Motion for Preliminary Injunction and Declaratory Relief, at 8-9. Prevention of traffic congestion and "ensuring the safety of pedestrians and drivers" are legitimate governmental interests. Kuba, 387 F.3d at 858; see also Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998).
Nevertheless, mere invocation of legitimate interests is not sufficient; the City "must also show that the proposed communicative activity endangers those interests." Kuba, 387 F.3d at 859. In Kuba, for example, the Ninth Circuit held that the mere assertion of traffic flow and pedestrian safety was inadequate to justify the denial of pedestrian access to the parking lots and walkways immediately outside of an arena. Id. at 859-60. There, the government had blocked off those areas when a circus or rodeo was performing in the arena, based on the speculation that if demonstrators were allowed in those areas, they would cause "congestion and danger to safety." Id. at 860. Without some type of showing, such as a history of past protestors causing such dangerous congestion, the court concluded that the government had not shown that public safety would be endangered by the "addition of a handful of individuals" protesting immediately outside of the arena. Id.
Here the City defendants contend that the portion of West Washington Street at issue was closed during the time that Ringling Bros. employees were walking the circus animals down the street, from the Port of Stockton to the Arena. Drake Decl. Ex. B-D. Plaintiffs describe that plaintiff Bolbol was barred from accessing the portion of West Washington Street for fifteen to sixteen minutes. Bolbol Decl. ¶ 5.
From all that appears, the City's restriction operated to deny plaintiffs the very access that they desired so that they could tape the animal walk. Just as the Kuba plaintiffs sought access to the public for the purpose of distributing information, in the present case the plaintiffs sought access to the "animal walk" in order to videotape the condition and treatment of the animals. For this reason, a factfinder could reasonably conclude that the City's actions were not "narrowly tailored," as they circumscribed precisely the type of speech activities the plaintiffs desired to engage in, without sufficient justification. See Kuba, 387 F.3d at 863 (defendants' restrictions were not narrowly tailored because, inter alia, they almost entirely prevented plaintiffs from accessing the crowd). Moreover, like Kuba, the defendants have not offered evidence that plaintiff's access to the blocked portion of West Washington Street would create traffic congestion and endanger public safety. Thus the defendants have not shown there was an important government interest was threatened by plaintiffs' actions. See id. at 860-61.
Given these circumstances, it appears, for purposes of the preliminary injunction, that the City's safety concerns were only speculative and their actions were not narrowly tailored to those concerns. It may be that ultimately the City's safety concerns were legitimate and well-founded, and that the denial of access to the portion of West Washington Street was narrowly tailored to those interests. Overall, however, on the present record, the court concludes that the plaintiffs have a likelihood of success on the merits of their claims against the City defendants.
2. Possibility of Irreparable Injury
The loss of First Amendment freedoms, even briefly, constitute an irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). In order to obtain an injunction, the plaintiff must show that this irreparable injury is likely to recur. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Evidence of past incidents alone is not enough, unless plaintiffs show that those incidents were part of a policy or on-going pattern that continues to threaten their rights. Id.; see also Allee v. Medrano, 416 U.S. 802, 815-16 (1974) (only a prevailing pattern of police misconduct, not simply evidence of a few incidents, would merit an injunction against state law enforcement); Thomas v. County of Los Angeles, 978 F.2d 504 (9th Cir. 1989) (reversing issuance of injunction against the City, where there was insufficient evidence of a City policy linked to officers' illegal conduct, although an extensive record of individual incidents).
Here, the court agrees with plaintiffs that the activities which they sought to engage in were speech, within the meaning of the United States and California Constitutions, the impairment of which would constitute an irreparable injury. See Fordyce, 55 F.3d at 439.
The plaintiffs have also presented evidence from which the court can conclude that there is some likelihood of the injury recurring. Plaintiffs have acknowledged that they were able to exercise their free speech rights without constraint during the 2007 circus performances at the Stockton Arena. Rizzardi Decl. ¶ 9, Ex. D (deposition of Deniz Bolbol at 159:18-160:1); Drake Decl. ¶ 7, Ex. E (deposition of Deniz Bolbol at 187:11-187:22). The evidence before the court indicates that in 2007 the city initiated a meeting with the plaintiffs and relevant City personnel to discuss plaintiffs' ability to exercise their rights to free speech during the 2007 circus and a commitment from Lt. Paoletti to allow plaintiffs the access they sought. Cuviello Decl. ¶ 12; see also Rizzardi Decl. ¶ 10.
Although defendants represent in their opposition that defendant Michael Rishwain is no longer Assistant City Attorney and Lieutenant Cris Trulsson is no longer Event Commander, they present no evidence of this fact and the court does not rely on it. Moreover, there is no evidence that the conduct was the result of rogue decisions by these two defendants rather than that they were expressing the city's policy.
Despite this, it is well-settled "`that an action for an injunction does not become moot merely because the conduct complained of was terminated, if there is a possibility of recurrence, since otherwise the defendant's would be free to return to [their] old ways.'" FTC v. Affordable Media, 179 F.3d 1228, 1237 (9th Cir. 1999) (quoting FTC v. Am. Standard Credit Sys., Inc., 874 F. Supp. 1080, 1087 (C.D. Cal. 1994)). In fact, although the City in 2007 told the plaintiffs that they could have the access that they were denied in 2006, this policy appears not to have been uniformly implemented by all officers.See Cuviello Decl. ¶¶ 12-14. This calls into question the efficacy of the City's efforts at voluntary cessation and makes it appear not unlikely that the deprivations that occurred in 2006 may recur in 2008.
3. Public Interest
Finally, the court considers whether the interest of the public generally is served by the issuance of the injunction. Los Angeles Memorial Coliseum Comm'n, 634 F.2d at 1200. The Ninth Circuit has recognized a significant public interest in the preservation of First Amendment freedoms. Sammartano v. First Judicial D.C., 303 F.3d 959, 974 (9th Cir. 2002). This interest can be overcome by a particularly compelling state interest. Id. at 974-75.
Indeed, it is somewhat dispiriting that the defendants seem to regard the First Amendment as an impediment to doing their "real" job, rather than as a duty they should gladly assume.
Here, the public interest favors the issuance of a preliminary injunction. The plaintiffs seek to engage in speech protected under the First Amendment and if the City's actions in restricting that speech were unlawful, this represents a serious infringement on the interests of others, including persons who have been or may be deterred from lawfully exercising their First Amendment rights. See id. at 974. See id. Accordingly, the public interest would be served by granting the injunction.
Considering all the factors as a whole, the court is persuaded that plaintiffs have shown that the facts locate on a point in the continuum analysis at which an injunction is merited. See Lopez, 713 F.2d at 1435. They have a fair or better chance of success on the merits. Although the evidence of the likelihood of the injury's recurrence is equivocal, the possible injury is a loss of one of a core freedom guaranteed by the Constitution. See Elrod, 427 U.S. at 373. As such, the balance of hardships tips sharply in the plaintiffs favor. See Lopez, 713 F.2d at 1435. All the above favors the injunction's issuance against the City defendants.
C. Preliminary Injunction Against IFG
1. Likelihood of Success on the Merits
Plaintiffs allege that IFG, through its employees, infringed on plaintiffs' rights to free speech under the California Constitution. See Plaintiffs' Motion for Preliminary Injunction and Declaratory Relief at 12. California's Liberty of Speech provision is more expansive than rights under the First Amendment of the United States Constitution. Vernon v. City of Los Angeles, 27 F.3d 1385, 1391-92 (9th Cir. 1994), cert. denied 513 U.S. 1000. Unlike its federal counterpart, the California constitution prohibits private actors, not only the state, from infringing on the right to free speech. Golden Gateway Center v. Golden Gateway Tenants Ass'n., 26 Cal. 4th 1013, 1023 (2001). This prohibition extends to those private actors who open their land to the public and, in so doing, resemble state actors. Id. at 1031-32. Specifically, the Liberty of Speech provision applies to private property that has been made "freely and openly accessible to the public." Id. at 1034 (construing Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (9th Cir. 1979)). This includes, for example, a shopping mall; it does not include, for example, a secured apartment complex. Id. at 1032-34.
Here, it seems apparent that the areas surrounding the Stockton Arena at issue are encompassed by the state Liberty of Speech provision. The areas around the Arena appear to be open to the public generally and, unlike an apartment complex, are not restricted to a certain few or for a certain purpose. See Golden Gateway Center, 26 Cal. 4th at 1034. The normal activities that would occur in these areas seems basically compatible with the plaintiffs' communicative activity. Kuba, 387 F.3d at 857. As such, the state Liberty of Speech provision applies to IFG vis-a-vis plaintiffs' use of the areas surrounding the Stockton Arena.
Although the California Constitution applies to private property as well as state property, the limitations on restrictions of speech that can occur there borrow from federal jurisprudence. Thus, as when state action is at issue, a private party may only restrict speech where the restriction is "content-neutral, [is] narrowly tailored to serve an important government interest, and leave[s] open ample alternative channels for the communication of the message." Kuba, 387 F.3d at 856.
Here, the plaintiffs have presented evidence that on two occasions they were barred from accessing the pedestrian areas near the Arena by IFG personnel. Cuviello Decl. ¶¶ 6-9; Bolbol Decl. ¶¶ 6-11. See Drake Decl. Ex. F (deposition of Joseph Cuviello at 167:10-168:2) (describing the areas as "queuing areas"). Both times, Bolbol was told that she could not access these areas without a ticket. Bolbol Decl. ¶¶ 6-11. Both times, the plaintiffs had signs, banners, and leaflets with them, from which one may infer that IFG staff were aware of the content of plaintiffs' message. Cuviello Decl. ¶¶ 6-9; Bolbol Decl. ¶¶ 6-11. It also appears that IFG staff were categorical in their refusal to allow plaintiffs onto the areas in question. See generally Cuviello Decl. ¶¶ 6-9; Bolbol Decl. ¶¶ 6-11. Finally, there is no evidence tendered to the court of the reason for IFG's restriction on plaintiffs' access to these areas, let alone a showing that the restrictions served an important state interest and were narrowly tailored to that interest. See Kuba, 387 F.3d at 856.
Consequently, the plaintiffs have shown that there is a fair chance of success on the merits. See Arcamuzi, 819 F.2d at 937.
2. Possibility of Irreparable Injury
As described above, the loss or restriction of First Amendment freedoms is an irreparable injury. Elrod, 427 U.S. at 373. As is the case with the City defendants, however, the evidence regarding the likelihood of recurrence is mixed. Plaintiffs have acknowledged that in 2007 they were able to access all areas around the Arena from which they had been blocked in 2006. Rizzardi Decl Ex. D. IFG and the City took affirmative steps to ensure plaintiffs rights were respected in 2007 and, by plaintiffs' own descriptions, no infringement occurred that year. Rizzardi Decl. ¶¶ 9, 10; Drake Decl. Ex. F (deposition of Joseph Cuviello at 167:21-168:21). Nevertheless, as explained above, defendants' voluntary cessation of the allegedly illegal actions is not a compelling reason to refrain from issuing an injunction.FTC, 179 F.3d at 1237. Based on the evidence tendered, the court concludes that plaintiffs have shown at least a possibility of irreparable injury by IFG.
Taking this possibility together with the fair likelihood of success on the merits, as well as the strong public interest described in section III.B.3, supra, the court concludes that there is an sufficient showing that a preliminary injunction should issue here. The considerations for issuance of an injunction are, as described above, a sliding scale. Lopez, 713 F.2d at 1435. Although it is a closer question, the importance of the plaintiffs' and the public interest at issue here tips the case onto that side of the scale at which an injunction is warranted.
IV. CONCLUSION
For the reasons stated herein, plaintiffs' motion for a preliminary injunction (Docket No. 46) is GRANTED.
The court orders as follows:
1. From September 18 through 21, 2008, plaintiffs shall be permitted full access to the public fora surrounding the Stockton Arena, including parking lots and public walkways, without interference from International Facilities Group or its agents or the City of Stockton or its agents.
2. From September 18 through 21, 2008, plaintiffs shall be permitted full access to the public streets, including W. Washington Street, of the City of Stockton, without interference from International Facilities Group or its agents or the City of Stockton or its agents.
3. From September 18 through 21, 2008, plaintiffs shall be permitted to distribute leaflets and to videotape in any public streets and any public fora areas surrounding the Stockton Arena.
4. Plaintiffs shall POST BOND in the amount of one hundred dollars ($100) within ten (10) days.
IT IS SO ORDERED.