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Free Nipple-Fort Collins v. City of Fort Collins

United States Court of Appeals, Tenth Circuit

February 15, 2019

FREE THE NIPPLE-FORT COLLINS, an unincorporated association; BRITTIANY HOAGLAND; SAMANTHA SIX, Plaintiffs - Appellees,
v.
CITY OF FORT COLLINS, COLORADO, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CV-01308-RBJ)

          Andrew 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 Defendant-Appellant.

          Andrew McNulty (David A. Lane with him on the brief), of Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs-Appellees.

          Before BRISCOE, HARTZ, and PHILLIPS, Circuit Judges.

          PHILLIPS, CIRCUIT JUDGE.

         The 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.

         The 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.

         BACKGROUND

         In 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.

         Fort 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).

         The 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.

         The 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.

         The 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, [1]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.

         The City then brought this interlocutory appeal defending the constitutionality of its public-nudity ordinance and challenging the preliminary injunction.

         DISCUSSION

         In its appeal, the City asks us to vacate the district court's preliminary injunction so that it can fully enforce its public-nudity ordinance.[2] 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.

         I. Standard of Review

         District 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.

         II. The Legal Standards Governing Preliminary Injunctions

         "A 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).

         But 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 1071).

         On 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.

         The 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.[3]

         III. Application

         On 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).

         A. The First Factor: Likelihood of Success on the Merits

         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.

         We 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.

         1. The Equal Protection Clause and Gender-Based Classifications

         "No 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.

         Gender, 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).

         The 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).

         Some of 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.[4] 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, ...


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