FREE THE NIPPLE-FORT COLLINS, an unincorporated association; BRITTIANY HOAGLAND; SAMANTHA SIX, Plaintiffs - Appellees,
CITY OF FORT COLLINS, COLORADO, Defendant-Appellant.
from the United States District Court for the District of
Colorado (D.C. No. 1:16-CV-01308-RBJ)
D. Ringel of Hall & Evans, L.L.C, Denver, Colorado
(Gillian Dale and Christina S. Gunn of Hall & Evans,
L.L.C., Denver, Colorado; and Carrie Mineart Daggett and John
R. Duval, Fort Collins City Attorney's Office, Fort
Collins, Colorado, with him on the briefs), for
McNulty (David A. Lane with him on the brief), of Killmer,
Lane & Newman, LLP, Denver, Colorado, for
BRISCOE, HARTZ, and PHILLIPS, Circuit Judges.
PHILLIPS, CIRCUIT JUDGE.
city of Fort Collins, Colorado, enacted a public-nudity
ordinance that imposes no restrictions on male toplessness
but prohibits women from baring their breasts below the
areola. See Fort Collins, Colo., Mun. Code §
17-142 (2015). In response, Free the Nipple, an
unincorporated association, and two individuals, Brittiany
Hoagland and Samantha Six (collectively, "the
Plaintiffs"), sued the City in federal district court.
They alleged (among other things) that the ordinance violated
the Equal Protection Clause, U.S. Const. amend. XIV, §
1, and they asked for a preliminary injunction to halt
enforcement of the ordinance. The district court agreed. It
enjoined the City, pending the resolution of the case's
merits, from implementing the ordinance "to the extent
that it prohibits women, but not men, from knowingly exposing
their breasts in public." Free the Nipple-Fort
Collins v. City of Fort Collins, 237 F.Supp.3d 1126,
1135 (D. Colo. 2017). The City then brought this
interlocutory appeal to challenge the injunction.
appeal presents a narrow question: Did the district court
reversibly err in issuing the preliminary injunction? We
answer no. Exercising interlocutory jurisdiction under 28
U.S.C. § 1292(a)(1), we affirm the district court's
judgment and remand the case to that court for further
proceedings consistent with this opinion.
2015, after substantial public debate, the Fort Collins city
council enacted this public-nudity ordinance:
No female who is ten (10) years of age or older shall
knowingly appear in any public place with her breast exposed
below the top of the areola and nipple while located: (1) In
a public right-of-way, in a natural area, recreation area or
trail, or recreation center, in a public building, in a
public square, or while located in any other public place; or
(2) On private property if the person is in a place that can
be viewed from the ground level by another who is located on
public property and who does not take extraordinary steps,
such as climbing a ladder or peering over a screening fence,
in order to achieve a point of vantage ..... The prohibition
[on female toplessness] does not extend to women
breastfeeding in places they are legally entitled to be.
Collins, Colo., Mun. Code § 17-142(b), (d). Any person
who violates this ordinance "shall be guilty of a
misdemeanor" and "shall be punished" by a fine
of up to $2, 650, or up to 180 days in jail, or both.
Id. § 1-15(a).
Plaintiffs immediately sued the City in federal district
court, alleging that the public-nudity ordinance violates the
Free Speech Clause of the First Amendment and the Equal
Protection Clause of the Fourteenth Amendment to the U.S.
Constitution, as well as the Equal Rights Amendment to the
Colorado Constitution. Their complaint includes a jury-trial
demand and a prayer for relief asking the court (1) to
declare the ordinance "unconstitutional on its face and
as applied to [the] Plaintiffs" and (2) to prevent the
ordinance's enforcement. Appellant's App. vol. 1 at
20. Separately, the Plaintiffs moved for a preliminary
injunction blocking enforcement of the ordinance and
"prohibit[ing] [the City] from discriminatorily
arresting [the] Plaintiffs, and all others similarly
situated, when they engage in the protected activity of
standing topless in public places in Fort Collins,
Colorado." Id. at 22.
City countered with a motion to dismiss arguing that the
Plaintiffs had failed to state any claim on which relief
could be granted, see Fed. R. Civ. P. 12(b)(6), and
a response to the Plaintiffs' preliminary-injunction
motion. In the latter, the City asserted that a preliminary
injunction would unfairly burden the public "by exposure
to public nudity" and urged the court to deny the
motion. Appellant's App. vol. 2 at 33.
district court first addressed the City's motion to
dismiss. It granted the motion on the Plaintiffs'
free-speech claim, agreeing with the City that "topless
protests" aren't protected speech, but allowed the
Plaintiffs' (federal) Equal Protection Clause and (state)
Equal Rights Amendment claims to proceed. Free the
Nipple-Fort Collins v. City of Fort Collins, 216
F.Supp.3d 1258, 1262 (D. Colo. 2016). Next, the court turned
to the Plaintiffs' preliminary-injunction motion. After
holding a hearing on the matter, it granted the motion,
ruling that the ordinance likely violated the Equal
Protection Clause, and issued the requested injunction.
Free the Nipple, 237 F.Supp.3d at 1128. Pending
trial (or other resolution of the case), the preliminary
injunction blocks the City from enforcing its public-nudity
ordinance "to the extent that it prohibits women, but
not men, from knowingly exposing their breasts in
public." Id. at 1135.
City then brought this interlocutory appeal defending the
constitutionality of its public-nudity ordinance and
challenging the preliminary injunction.
appeal, the City asks us to vacate the district court's
preliminary injunction so that it can fully enforce its
public-nudity ordinance. The City argues that the
ordinance's unequal treatment of male and female
toplessness survives constitutional scrutiny, making it
likely that the Plaintiffs will lose a merits trial and, in
the meantime, precluding them from getting injunctive relief.
Before we address the City's argument, we define our
standard of review and explain the rules governing the grant
(or denial) of a preliminary injunction. We'll then apply
that framework to determine whether the district court
reversibly erred when it issued the preliminary injunction.
Standard of Review
courts have discretion over whether to grant preliminary
injunctions, United States ex rel. Citizen Band
Potawatomi Indian Tribe v. Enter. Mgmt. Consultants,
Inc., 883 F.2d 886, 889 (10th Cir. 1989), and we will
disturb their decisions only if they abuse that discretion,
Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016).
A district court's decision crosses the
abuse-of-discretion line if it rests on an erroneous legal
conclusion or lacks a rational basis in the record.
Id. (quoting Awad v. Ziriax, 670 F.3d 1111,
1125 (10th Cir. 2012)). As we review a district court's
decision to grant or deny a preliminary injunction, we thus
examine the court's factual findings for clear error and
its legal conclusions de novo. Id.
The Legal Standards Governing Preliminary
preliminary injunction is an extraordinary remedy, the
exception rather than the rule." Enter. Mgmt.
Consultants, Inc., 883 F.2d at 888. To succeed on a
typical preliminary-injunction motion, the moving party needs
to prove four things: (1) that she's "substantially
likely to succeed on the merits," (2) that she'll
"suffer irreparable injury" if the court denies the
injunction, (3) that her "threatened injury"
(without the injunction) outweighs the opposing party's
under the injunction, and (4) that the injunction isn't
"adverse to the public interest." Beltronics
USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d
1067, 1070 (10th Cir. 2009).
courts "disfavor" some preliminary injunctions and
so require more of the parties who request them. See
Schrier v. Univ. of Colo., 427 F.3d 1253, 1258-59 (10th
Cir. 2005). Disfavored preliminary injunctions don't
merely preserve the parties' relative positions pending
trial. Id. Instead, a disfavored injunction may
exhibit any of three characteristics: (1) it mandates action
(rather than prohibiting it), (2) it changes the status quo,
or (3) it grants all the relief that the moving party could
expect from a trial win. Awad, 670 F.3d at 1125
(citing Summum v. Pleasant Grove City, 483 F.3d
1044, 1048-49 (10th Cir. 2007)); see also Phillip v.
Fairfield Univ., 118 F.3d 131, 133 (2d Cir. 1997)
(explaining that an injunction is "mandatory" if
"its terms would alter, rather than preserve, the status
quo by commanding some positive act"). To get a
disfavored injunction, the moving party faces a heavier
burden on the likelihood-of-success-on-the-merits and the
balance-of-harms factors: She must make a "strong
showing" that these tilt in her favor. Fish,
840 F.3d at 724 (quoting Beltronics, 562 F.3d at
appeal, the City invokes an even higher standard that
requires movants who, like the Plaintiffs, seek to disturb
the status quo to "demonstrate not only that the four
requirements for a preliminary injunction are met but also
that they weigh heavily and compellingly in [the
movants'] favor." Appellant's Opening Br. at 8
(quoting Kikumura v. Hurley, 242 F.3d 950, 955 (10th
Cir. 2001)). But we "jettison[ed]" the
heavily-and-compellingly requirement over a decade ago. O
Centro Espirita Beneficiente Uniao do Vegetal v.
Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (per
curiam), aff'd sub nom Gonzales v. O Centro Espirita
Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006).
Today, "the requirement that a movant requesting a
disfavored injunction must make a showing that the
traditional four factors weigh heavily and compellingly in
[the movant's] favor is no longer the law of the
circuit." Schrier, 427 F.3d at 1261.
preliminary injunction at issue here prevents the City from
fully enforcing its public-nudity ordinance. In so doing, the
district court concluded that the injunction both
"alters the status quo and affords the movants all the
relief they could recover at the conclusion of a full trial
on the merits." Free the Nipple, 237 F.Supp.3d
at 1130. This conclusion led the district court to apply the
heightened disfavored-injunction standard and to require
strong showings from the Plaintiffs on the first and third
factors. Id. And though we have doubts that the
heightened standard applies here, we need not decide which
standard to apply-the plaintiffs prevail under the heightened
standard and, therefore, under both.
appeal, the City disputes that the Plaintiffs can prevail on
any of the four preliminary-injunction factors, but its
argument hinges on the first factor: the likelihood that the
Plaintiffs will succeed on the merits. According to the City,
all four preliminary-injunction factors favor the City
because the Plaintiffs lack a viable equal-protection claim
and will likely lose on the merits. The fate of this
preliminary injunction thus turns largely, if not entirely,
on the strength of the Plaintiffs' equal-protection
claim. But the City challenges each preliminary-injunction
factor, so we address each (though we focus on the first).
The First Factor: Likelihood of Success on the
heightened standard applicable to disfavored preliminary
injunctions requires the Plaintiffs to make a strong showing
that their equal-protection claim is substantially likely to
succeed on its merits. Fish, 840 F.3d at 723-24. The
City contests the district court's conclusion that the
Plaintiffs made this showing. That conclusion, according to
the City, reflects "a fundamental misunderstanding"
of Supreme Court precedent and "a misapprehension of the
purpose and effect" of the public-nudity ordinance.
Appellant's Opening Br. at 9.
begin our analysis with an outline of the relevant
equal-protection principles. Applying those principles, we
then assess the merits of the Plaintiffs'
equal-protection claim to determine whether the district
court abused its discretion when it concluded that the
likelihood-of-success factor tilts toward the Plaintiffs.
The Equal Protection Clause and Gender-Based
State shall . . . deny to any person within its jurisdiction
the equal protection of the laws." U.S. Const. amend.
XIV, § 1. The Equal Protection Clause, as the U.S.
Supreme Court has interpreted it, directs "that all
persons similarly situated should be treated alike."
City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). "At a minimum," it requires that
any statutory classification be "rationally related to a
legitimate governmental purpose." Clark v.
Jeter, 486 U.S. 456, 461 (1988). But more stringent
judicial scrutiny attaches to classifications based on
certain "suspect" characteristics. See City of
Cleburne, 473 U.S. at 440. These (often immutable)
characteristics seldom provide a "sensible ground for
differential treatment." Id.
for instance, "frequently bears no relation to ability
to perform or contribute to society," and statutes that
differentiate between men and women "very likely reflect
outmoded notions" about their "relative
capabilities." Id. at 440-41 (quoting
Frontiero v. Richardson, 411 U.S. 677, 686 (1973)).
As a result, gender-based classifications "call for a
heightened standard of review," id. at 440, a
standard dubbed "intermediate scrutiny" because it
lies "[b]etween the extremes of rational basis review
and strict scrutiny." Clark, 486 U.S. at 461.
To survive intermediate scrutiny, a gender-based
classification needs "an exceedingly persuasive
justification." J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127, 136 (1994). The classification must serve
"important governmental objectives" through means
"substantially related to" achieving those
objectives. United States v. Virginia, 518 U.S. 515,
533 (1996) (quoting Miss. Univ. for Women v. Hogan,
458 U.S. 718, 724 (1982)); see also Craig v. Boren,
429 U.S. 190, 197-99 (1976) (defining, for the first time,
this level of means-ends scrutiny).
City acknowledges that a female-only topless ban is a
gender-based classification and that, to pass muster under
the Equal Protection Clause, gender-based classifications
must satisfy intermediate scrutiny. But instead of drawing
the logical conclusion-that female-only topless bans warrant
intermediate scrutiny-the City interrupts the syllogism. It
asserts that "[t]he fundamental requirement of
any cognizable gender discrimination claim is
invidious discrimination, not simply classification
on the basis of gender." Appellant's Opening Br. at
10 (bolding removed).
the Court's early equal-protection cases, such as
1979's Parham v. Hughes, did treat invidiousness
as a "threshold" inquiry. 441 U.S. 347, 351 (1979).
Yet Parham, if never overruled, is outdated in light
of the Court's more modern equal-protection
jurisprudence. Since then, the Court has
"consistently" recognized that statutes supposedly
based on "reasonable considerations" may in fact
reflect "archaic and overbroad generalizations about
gender" or "outdated misconceptions concerning the
role of females in the home rather than in the marketplace
and world of ideas." J.E.B., 511 U.S. at 135
(quoting Schlesinger v. Ballard, 419 U.S. 498, 506-
07 (1975), and Craig, 429 U.S. at 198-99). Today,