HELENE N. WHITE, Circuit Judge.
The municipality of Englewood, Ohio, passed an ordinance banning all door-to-door canvassing and soliciting between 6 P.M. and 9 A.M. Ohio Citizen Action challenged this curfew and other provisions of the ordinance on First Amendment grounds. The district court upheld the
The facts underlying this case are not in dispute. Ohio Citizen Action ("OCA") is a non-profit, public-interest group founded in 1975 that advocates mainly on environmental issues. OCA describes itself as a community organization 80,000 members strong, which practices "door-to-door democracy" to promote reducing pollution in Ohio. Members support OCA financially and by signing petitions, writing letters, making phone calls, talking to neighbors, posting yard signs, or speaking out at community meetings. One of OCA's principal methods of organizing citizens and delivering its message is through face-to-face contact with citizens on their doorsteps. During these exchanges, OCA's canvassers typically solicit financial contributions to benefit the organization.
Englewood (or "the City") is a northern suburb of Dayton, Ohio, with about 13,500 residents and 5,000 households. Since at least 1921, Englewood has had a solicitation ordinance of some kind. The ordinance initially prohibited door-to-door solicitation after sunset, but in 1983, this restriction was replaced with a 6 P.M. curfew. Violations are classified as misdemeanors punishable by a fine of up to $250 and up to 30 days' imprisonment.
In 2004, Englewood passed the ordinance in effect at the time of the events giving rise to this lawsuit ("the 2004 Ordinance"). As relevant to this case, the 2004 Ordinance required anyone desiring to "peddle, vend, solicit or request contributions for any purpose, charitable or otherwise," to obtain a license from the City, with exceptions for newspaper sellers, certain vendors of goods or services and persons under the age of 18. Englewood Codified Ordinances ("E.C.O.") § 854.03, 854.08 (2004). The licensing requirement did not apply to canvassing, defined as "the house-to-house distribution of ideas, pamphlets, literature . . . or the collection of signatures or support for any purpose or cause," so long as canvassers did not also solicit donations. Id. §§ 854.01(a), 854.08(a). The 2004 Ordinance also contained a curfew provision, which prohibited "all canvassing, peddling, vending, soliciting and requests for contributions" every day of the week before 9 A.M. and after 6 P.M., "unless a later hour is approved by the City Manager for a good cause." Id. § 854.11.
On April 12, 2005, OCA notified Englewood in writing of its intention to canvass the City later that day from 4 P.M. to 9 P.M., and that afternoon, members began canvassing and soliciting donations in the City. At some point in the evening, Englewood's police chief advised OCA's canvassing
In May 2005, Englewood's City Manager submitted to the City Council a proposal to amend the 2004 Ordinance; the City Council adopted this revised ordinance ("the 2005 Ordinance") on July 12, 2005.
The 2005 Ordinance kept the same licensing requirement and curfew provision as its predecessor, but rescinded the City Manager's discretionary power to grant curfew waivers for good cause. E.C.O. § 854.11 (2005). The 2005 Ordinance also included a provision requiring the City Manager to maintain a "do-not-solicit list" to which any property owner could add his or her residence. Id. § 854.12(a). Properties registered on this list became off limits "for the purpose of Contact Canvassing,
On July 25, 2005, OCA filed this action under 42 U.S.C. § 1983, alleging that the 2004 and 2005 Ordinances violated the First and Fourteenth Amendments of the United States Constitution on their face or
In a ruling issued on February 16, 2010, the district court struck down the licencing requirements of the 2004 and 2005 Ordinances as unconstitutional. See R. 110 [hereinafter D. Ct. Op.] The court also invalidated the do-not-solicit provision of the 2005 Ordinance, but upheld the requirement that would-be canvassers obtain a copy of the do-not-solicit list before going door to door. The court further upheld the 6 P.M. curfew provisions contained in both ordinances. Finally, the court ruled that OCA lacked standing to challenge the curfew-extension provision of the 2004 Ordinance.
On March 3, 2010, after the district court released its opinion, but before it issued a final order terminating the case, Englewood filed notice that it had amended its solicitation ordinance by way of an emergency reading. The City asked the court to take judicial notice that the new law ("the 2010 Ordinance") resolved all defects cited in the February 16, 2010, opinion and requested that any injunctive relief be denied as moot. The notice included a copy of the newly passed amendments, but no affidavit or memorandum of support. On March 5, 2010, the court declined the City's requests and, consistent with its prior opinion, enjoined enforcement of the 2005 Ordinance's do-not-solicit provision and the licensing requirement of the 2004 and 2005 Ordinances. The court acknowledged the passage of the 2010 Ordinance, but expressed no opinion as to its constitutionality or whether its enactment rendered the injunctions moot. Both sides timely appealed.
This Court reviews de novo a district court's decision to grant or deny summary judgment. Dillon v. Cobra Power Corp., 560 F.3d 591, 595 (6th Cir.2009). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Estate of Smithers v. City of Flint, 602 F.3d 758, 761 (6th Cir.2010); see also Fed.R.Civ.P. 56, Advisory Committee Notes ("The standard for granting summary judgment remains unchanged" despite 2010 amendments to Rule 56). A court reviewing a motion for summary judgment cannot weigh the evidence or make credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Schreiber v. Moe, 596 F.3d 323,
OCA argues that the district court erred in upholding the curfew and list-carrying provisions of the 2005 Ordinance, and in ruling that OCA lacked standing to challenge the curfew-extension provision of the 2004 Ordinance. We consider each claim in turn.
OCA asserts that the 6 P.M. curfew violates the First Amendment of the United States Constitution as a matter of law; alternatively, OCA claims that the district court should not have granted summary judgment to Englewood because questions of material fact remain regarding the curfew's constitutionality.
The First Amendment states in relevant part, "Congress shall make no law . . . abridging the freedom of speech." This prohibition applies to state and local governments through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir.2005). The protections afforded by the First Amendment are not absolute, however. In particular, governmental entities may "fix reasonable hours when canvassing may be done," within certain limits. Schneider v. State (Town of Irvington), 308 U.S. 147, 165, 60 S.Ct. 146, 84 L.Ed. 155 (1939).
OCA contends that the curfew violates the First Amendment on its face and as applied. A law that proscribes "a `substantial' amount of constitutionally protected speech judged in relation to the statute's plainly legitimate sweep" is deemed overbroad and thus facially invalid. Phelps-Roper v. Strickland, 539 F.3d 356, 360 (6th Cir.2008) (quoting Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003)); see also Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ("[A]n overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable."). Facial invalidation "is strong medicine that is not to be casually employed." Phelps-Roper, 539 F.3d at 360 (quoting United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)). While a facial challenge invokes the rights of others, an as-applied challenge is confined to the particular circumstance of the plaintiff. See John Doe No. 1 v. Reed, ___ U.S. ___ 130 S.Ct. 2811, 2817, 177 L.Ed.2d 493 (2010). "[A]lthough the occasional case requires us to entertain a facial challenge in order to vindicate a party's right not to be bound by an unconstitutional statute, we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants." United States v. Treasury Employees, 513 U.S. 454, 477-78, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1994) (internal citations omitted).
Thus, "[t]he usual judicial practice is to address an as-applied challenge before a facial challenge . . . this sequencing decreases the odds that facial attacks will be addressed unnecessarily." Connection Distrib. Co. v. Holder, 557 F.3d 321, 327-28 (6th Cir.2009) (en banc) (quoting Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85, 109 S.Ct. 3028, 106
The Supreme Court has yet to clarify what standard of review applies to ordinances regulating door-to-door canvassing. See Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 164, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (expressly declining to resolve the issue). However, several circuits, including this one, have adopted the familiar time, place, and manner analysis when considering such ordinances. See, e.g., Ass'n of Cmty. Orgs. for Reform Now v. Town of E. Greenwich, 239 Fed.Appx. 612, 613 (1st Cir.2007) (citing cases); Parks v. Finan, 385 F.3d 694, 695 (6th Cir.2004); Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 240 F.3d 553, 560 (6th Cir.2001), overruled on other grounds, 536 U.S. at 150, 122 S.Ct. 2080. Under this framework, legislation regulating the content of speech is subject to the most exacting scrutiny, while a law that is content neutral receives intermediate (also referred to as "mid-level" or "heightened") scrutiny. Turner Broad. Sys., Inc., v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); Connection Distrib. Co., 557 F.3d at 329. The parties agree that Englewood's solicitation ordinance, in all versions relevant to this lawsuit, is content neutral; therefore, we review it under intermediate scrutiny.
A governmental entity may impose reasonable, content-neutral restrictions on the time, place, or manner of protected speech, provided that such restrictions (1) prescribe adequate standards for administrating officials to apply; (2) are narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternatives for communication. Thomas v. Chicago Park Dist., 534 U.S. 316, 323 & n. 3, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) (citing Forsyth, 505 U.S. at 130, 112 S.Ct. 2395); H.D. V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 623 (6th Cir.2009). The governmental entity that enacts the regulation bears the burden of establishing each element of the analysis, and "the Court ordinarily does not supply reasons the legislative body has not given." Watchtower Bible & Tract Soc'y, 536 U.S. at 170, 122 S.Ct. 2080 (Breyer, J., concurring) (citing United States v. Playboy Entm't Grp., 529 U.S. 803, 816, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.")).
OCA does not dispute that Englewood's ordinance prescribes adequate standards for administrative officials to apply. OCA addresses the second and third requirements, arguing that the curfew is not narrowly tailored to a significant interest of the City and that it does not leave ample alternative channels for OCA to communicate its message.
A content-neutral regulation is deemed narrowly tailored to a significant governmental interest if "the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Turner Broad. Sys., 512 U.S. at 662, 114 S.Ct. 2445 (quoting United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). To satisfy this standard,
Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (other quotation marks and citation omitted)).
Englewood contends that the curfew provision serves the City's significant interests in protecting the privacy rights of its citizens and preventing crime. We consider each argument in turn.
Englewood argues that the curfew requirement serves to protect the privacy interests of its residents who do not want strangers knocking on their doors during dinner time. The district court held that restricting all canvassing activities after 6 P.M. was not a narrowly tailored means to achieve this objective. We agree.
There is no question that municipalities have a significant interest in protecting "the well-being, tranquility, and privacy of the home." Ward, 491 U.S. at 796, 109 S.Ct. 2746. However, there are far less intrusive ways to preserve residential privacy than by restricting all manner of speech. In Watchtower Bible and Tract Society, a congregation of Jehovah's Witnesses challenged a town ordinance prohibiting canvassers from entering private residential property without first obtaining a permit. 536 U.S. at 154, 122 S.Ct. 2080. The ordinance also forbade canvassers with valid permits from entering properties whose owners had filed a "no solicitation registration form" with the mayor and posted a "No Solicitation" sign on their property. Id. at 156, 122 S.Ct. 2080. The village argued that the permitting requirement was necessary to protect residential privacy, but the Supreme Court disagreed, stating:
Id. at 168-69, 122 S.Ct. 2080 (internal citation omitted).
In the instant case, Englewood's ordinance allows residents to avoid being inconvenienced by door-to-door canvassers at dinnertime by simply posting a "No Soliciting" sign on their property, see E.C.O. § 854.12. Moreover, the evidence does not support the City's claim that residents are particularly protective of their privacy after 6 P.M. To the contrary, as the district court observed, Englewood residents appear "generally averse to door-to-door advocacy, at any time of the day." D. Ct. Op. 45. The fact that 1777 of 5000 residences have signed the do-not-solicit list under the 2010 Ordinance does not rebut this finding. We therefore affirm the district court's ruling that Englewood's interest in protecting the privacy rights of its citizens supports neither the licensing requirement nor the curfew.
Englewood argues that, aside from protecting the privacy interests of its residents, the 6 P.M. curfew also serves to prevent and reduce crime within the City. There is no doubt that preventing crime is a significant governmental interest. See, e.g., Watchtower Bible & Tract Soc'y, 536 U.S. at 163, 122 S.Ct. 2080; United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Nevertheless,
Typically, when a municipality invokes its interest in crime prevention to defend the constitutionality of a solicitation ordinance, the argument focuses either on preventing crimes committed by persons who pose as canvassers, or ensuring the safety of the canvassers themselves.
There is reason to doubt the effectiveness of a soliciting curfew in reducing crime. In Watchtower Bible and Tract Society, 536 U.S. at 169, 122 S.Ct. 2080, in addressing a permitting requirement, the Supreme Court observed, "it seems unlikely that the absence of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance. They might, for example, ask for directions or permission to use the telephone, or pose as surveyors or census takers." See also id. at 170, 122 S.Ct. 2080 (Breyer, J., concurring) ("It is also intuitively implausible to think that Stratton's ordinance serves any governmental interest in preventing [burglaries and violent] crimes."); SEIU, Local 3, 446 F.3d at 428 ("[A]s in Watchtower, we think it `intuitively implausible to think' that those determined to commit such crimes will comply with the registration requirement.").
What seemed "unlikely" with regard to a permitting requirement is equally so in the case of a curfew. See, e.g., N.J. Citizen Action v. Edison Twp. (NJCA), 797 F.2d 1250, 1258 (3d Cir.1986), cert. denied sub nom., Piscataway v. N.J. Citizen Action, 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 186 (1987) (finding that there was "no correlation between the ordinances and crime prevention and that the time restrictions on canvassing do not deter or prevent crime"); City of Watseka v. Ill. Pub. Action Council, 796 F.2d 1547, 1556 (7th Cir.1986), aff'd, 479 U.S. 1048, 107 S.Ct. 919, 93 L.Ed.2d 972, reh'g denied, 480 U.S. 926, 107 S.Ct. 1389, 94 L.Ed.2d 703 (1987) ("Watseka failed to offer any explanation why the people who came within the ordinance's definition of soliciting posed any greater burden on the police, or threat of crime, than the numerous other visiting strangers that the ordinance did not purport to cover."). There is no reason to believe (and Englewood offers no evidence to support) that a curfew on soliciting activities deters criminals from posing as canvassers, or from approaching private residences under different pretenses altogether, such as to ask for directions, or by faking a medical emergency. See Watseka, 796 F.2d at 1556 ("Unfortunately, for the devious there is no shortage of opportunities."). Therefore, we hold that the City's 6 P.M. curfew is not narrowly tailored to its interest in preventing crime by door-to-door canvassers or by individuals posing as such.
Although Engelwood does not concede the absence of a direct link between soliciting and crime, the principal thrust of its argument is that soliciting, although not criminal in itself, drains law-enforcement resources and interferes with law enforcement's ability to tackle other, more serious crimes. According to the City, canvassers and commercial solicitors alike generate an increasing number of complaints and calls to the police from citizens who object to being bothered at home. The City asserts that were it not for the curfew, the bulk of canvassing and soliciting—and, by extension, the majority of complaints—would occur in the evening,
Englewood's argument hinges on a novel definition of the governmental interest in crime prevention. The City proceeds on a theory that its municipal interest in preventing crime is not confined to preventing crimes directly related to door-to-door soliciting, but is overarching and includes ensuring that all resources devoted to crime fighting are deployed and utilized in the most efficient manner. Thus, the central component of Englewood's interest-in-crime-prevention argument is the City's ability to allocate limited municipal resources as economically as possible.
The Supreme Court has not specifically addressed whether the First Amendment yields to the governmental interest in allocating public funds in the manner deemed most effective to fight crime. The Court has never held the efficient allocation of public resources to be an interest sufficient to survive heightened scrutiny,
Englewood's raw statistical data cover the period from January 2000 to December 2007 and consists of police-department call logs, which track all calls for service by date, time, and subject matter, and a list of all criminal offenses committed in Englewood, also sorted by date and time. The data are compiled into eight graphs, one for each year from 2000 to 2007, and one summary graph titled "2000-2007 Averages by Time of Day." Each graph compares the number of offenses committed, arrests effectuated, total service calls received, and solicitation-related service calls received. (R. 78-7, at 3; Appendix of Colored Exhibit Filed in Trial Court (filed Aug. 9, 2010).) The summary graph is reproduced in the Appendix to this opinion, together with the numerical data on which it is based. (See City Reply Br. 5-6; R. 78-7, Lang Aff., at 3, 19.)
At the outset, we observe that Englewood's data lack clarity in several respects. Notably, service calls are not distinguished according to whether they concern solicitations of a commercial or charitable nature; this is significant because our inquiry is different depending on the type of solicitation at issue. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) ("The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression."); NLRB v. Midland Daily
Englewood makes a number of claims based on its statistical data. These assertions are discussed individually below.
In summary, although there has been an increase in the volume of calls from Englewood residents complaining about solicitors from 2000 to 2007, in all other respects, the City's data do not bear out its claims. Englewood's main argument is that the 6. P.M. curfew on soliciting is a key component of its overall strategy to reduce crime. However, the record contains no evidence of the correlation between the number of calls to law enforcement regarding solicitors and law enforcement's ability to reduce crime. The City emphasizes that between January 2000, when the police initiated its strategy of proactive law enforcement, and December 2007, the overall crime rate in Englewood dropped by 35%. However, Englewood's 6 P.M. curfew was in effect long before 2000; therefore, while the drop in criminality since 2000 may reflect the effectiveness of proactive policing, it is not evidence of the curfew's contribution to the City's crime-fighting strategy.
Finally, Englewood argues that the 6 P.M. curfew simply reflects both the "harsh realities" of modern existence and how different America is today compared to 1943, when the Supreme Court observed that "[f]or centuries it has been a common practice in this and other countries for persons not specifically invited to go from home to home and knock on doors or ring doorbells to communicate ideas to the occupants or to invite them to political, religious, or other kinds of public meetings." Martin, 319 U.S. at 141, 63 S.Ct. 862. Englewood notes that the population of the United States has more than doubled since these words were written, and that crime rates have risen at an even greater pace. The period since 1943 has also seen the advent of computers, satellite television, cell phones, and other technologies that have revolutionized human interactions; indeed, Englewood points out, OCA itself uses the internet and email to communicate with its members. In requesting that we uphold the 6 P.M. curfew, the City asks us to take judicial notice of "the fearful times we live in . . ., the unprecedented and difficult economic times facing the geographic region where Englewood is located," and of the fact that "door-to-door communications are no longer a centerpiece of communications in this country." (City Br. 33, 32 (footnote omitted).) To hold otherwise, Englewood argues, is "to ignore the safety of Englewood residents." (City Reply Br. 9.)
As an initial matter, we note that Englewood residents concerned about criminals who pose as canvassers or solicitors can take the simple affirmative step of placing their names on Englewood's do-not-solicit list, the validity of which is unaffected by this ruling, or posting do not solicit signs on their doors. More to the point, we may certainly take judicial notice that like many metropolitan areas in the United States, Dayton and its surroundings face difficult, if not severe, economic times. See Ohio Bell Tel. Co. v. Pub. Util. Comm'n of Ohio, 301 U.S. 292, 301, 57 S.Ct. 724, 81 L.Ed. 1093 (1937) ("Courts take judicial notice of matters of common knowledge. They take judicial notice that there has been a depression, and that a decline of market values is one of its concomitants.") (citations omitted). However, only facts that are "not subject to reasonable dispute" may be judicially noticed. Fed.R.Evid. 201(b). Thus, we cannot simply take judicial notice of the transformation
Thus, regardless of whether allocating public resources in the manner best suited to fight crime constitutes a significant governmental interest withstanding heightened scrutiny, the evidence Englewood put forth fails to demonstrate that the 6 P.M. curfew is narrowly tailored to serve that interest. Since the City cannot satisfy this prong of the analysis, we need not consider whether the ordinance leaves open ample alternative channels for OCA to communicate its message.
The 2004 Ordinance contained a curfew-extension clause, which gave the City Manager discretion to waive the 6 P.M. curfew "for a good cause." The district court held that OCA lacked standing to challenge this clause because OCA did not suffer an injury in fact traceable to the City Manager's discretion to extend the curfew. OCA challenges this ruling.
Standing is determined at the time the complaint is filed. Lynch v. Leis, 382 F.3d 642, 647 (6th Cir.2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1709, 161 L.Ed.2d 526 (2005). The minimal standing requirements of Article III of the United States Constitution require showing the following:
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
Ordinarily, "when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); Miller v. City of Cincinnati, 622 F.3d 524, 532 (6th Cir.2010). Moreover, "because unfettered governmental discretion over the licensing of free expression `constitutes a prior restraint and may result in censorship,' a plaintiff may bring facial challenges to statutes granting such discretion `even if the discretion and power are never actually abused.'" Miller, 622 F.3d at 532 (quoting Lakewood, 486 U.S. at 757, 108 S.Ct. 2138); see also Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) ("[O]ne has standing to challenge a statute on the ground that it delegates overly
But there is another standing-related concern here—mootness. Englewood argues that OCA's challenge is moot because the 2004 Ordinance was repealed before OCA initiated this lawsuit and because the discretionary-waiver clause was dropped from the 2005 Ordinance. The jurisdiction of federal courts extends only to actual, ongoing cases or controversies. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). A case may become moot if, as a result of events that occur during pendency of the litigation, "the issues presented are no longer `live' or parties lack a legally cognizable interest in the outcome." Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 781 (6th Cir.2007) (internal quotation marks and citation omitted); Berger v. Cuyahoga Cnty. Bar Ass'n, 983 F.2d 718, 724 (6th Cir.1993). However, if the plaintiff's complaint includes a claim for damages, that claim "preserves the plaintiff[`s] backward-looking right to challenge the original law and to preserve a live case or controversy over that dispute." Midwest Media Prop., LLC v. Symmes Twp., 503 F.3d 456, 461 (6th Cir.2007) (citing Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir.2005)); see generally 13C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3533.3 (3d ed.2008). In this case, OCA also sought money damages for injuries allegedly suffered as a result of the curfew-waiver clause. However, even if OCA were to succeed in establishing that the waiver clause was unconstitutional, it cannot state a valid claim for damages. OCA received a curfew waiver on April 12, 2005. OCA is the only entity known to have requested and benefitted from such a waiver, and it never asked for another extension thereafter. On these facts, OCA cannot show any injury deserving of compensation. Thus, we find no reversible error in the district court's dismissal of OCA's challenge to the 2004 Ordinance's curfew-waiver clause.
OCA challenged the do-not-solicit-list provision of the 2005 Ordinance, which prohibited entry onto any property listed on the City's do-not-solicit list. E.C.O. § 854.12(b). The district court held this provision unconstitutional because there was no obligation for the City to regularly update the list and because juveniles under the age of 17 were exempted from its requirement. The district court permanently enjoined enforcement of this provision. However, the court did not invalidate the requirement that solicitors carry the list when soliciting in Englewood.
OCA argues that there is no sense in requiring solicitors to carry the do-not-solicit list after the court's decision effectively rendered the list meaningless. However, this does not present a legal challenge to the district court's decision.
The ordinance in Watchtower Bible and Tract Society required anyone seeking to engage in door-to-door advocacy to identify themselves to local authorities, apply for a permit, and wait for its issuance before canvassing. Id. at 154-56, 122 S.Ct. 2080. By contrast, Englewood does not require canvassers to divulge their identity to receive a copy of the do-not-solicit list, and OCA cites nothing in this record suggesting that obtaining the list is difficult or burdensome, or takes an undue amount of time. Thus, on this record, we will not reverse the district court's rejection of OCA's challenge to this provision of the 2005 ordinance. The constitutionality of the 2010 Ordinance and the do-not-solicit-list provision contained therein are not before us in this appeal.
Englewood argues that OCA lacks standing to challenge the curfew provision of the 2004 Ordinance. In addition, the City appeals the district court's order permanently enjoining portions of the 2004 and 2005 Ordinances. We consider each claim in turn.
In its response brief in OCA's appeal, Englewood argues that OCA lacked standing to challenge the curfew provision of the 2004 Ordinance, not just the curfew-extension clause. The City claims that because OCA obtained a curfew extension on April 12, 2005, and because it did not attempt to canvass in Englewood after this incident, OCA was not injured by the 2004 Ordinance.
As discussed in Part II.A.2., supra, OCA is unable to demonstrate that it was injured as a result of the curfew-waiver clause. However, the analysis concerning the curfew itself is different. To establish injury in fact, OCA must simply show that its expressive rights under the First Amendment were impinged upon by the City's application of the curfew. It is undisputed that, following the events of April 12, 2005, the City warned OCA that it would henceforth strictly enforce the 6 P.M. curfew. Given this credible threat of injury, OCA was not required to undergo prosecution in order to obtain relief. See Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir.1998) ("[I]t is clear that an individual does not have to await the consummation of threatened injury to obtain preventive relief. Rather, if the injury is certainly impending, that is sufficient.") (citing Babbitt v. UFW Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)).
Englewood also argues that OCA's claims regarding the 2004 Ordinance were rendered moot by the passage of the 2005 Ordinance. However, OCA's damages
Englewood appeals the district court's order permanently enjoining enforcement of the 2005 Ordinance's do-not-solicit provision and the licensing requirement of the 2004 and 2005 Ordinances.
In essence, Englewood claims that the district court erred in failing to take judicial notice that, by passing the 2010 Ordinance, the City fully complied with the February 16 opinion. We disagree. "A defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case." Friends of the Earth, 528 U.S. at 174, 120 S.Ct. 693; Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir.2003). Instead, the defendant bears "the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, 528 U.S. at 190, 120 S.Ct. 693 (citation omitted). Moreover, beyond giving the district court notice of its newly enacted ordinance, the City did not present any argument explaining how it had remedied the deficiencies of the prior ordinances and why the injunctions should be lifted. The legal and factual questions raised by City's challenge to the injunction are best addressed to the district court by way of a motion to dissolve, amend or otherwise modify the March 5 order pursuant to Federal Rule of Civil Procedure 60(b), and therefore we decline to consider them here. See Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson Cnty., 466 F.3d 391, 395 (6th Cir.2006) ("[M]odifications or dissolution of injunctions must take place under Rule 60(b).") (citing Rufo v. Inmates of the Suffolk Cnty. Jail, 502 U.S. 367, 380, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)).
For the reasons set forth above, we
The case is remanded to the district court for proceedings consistent with this opinion.
------------------------------------------------------------------------------------ Time of Day Offenses Calls for Service Arrests Solicit. Calls ------------------------------------------------------------------------------------- 12-1 A.M. • 67 • 914 • 31 • 1 ------------------------------------------------------------------------------------- 1-2 A.M. • 53 • 755 • 29 • 1
------------------------------------------------------------------------------------- 2-3 A.M. • 41 • 575 • 25 • 0 -------------------------------------------------------------------------------------- 3-4 A.M. • 29 • 362 • 19 • 0 -------------------------------------------------------------------------------------- 4-5 A.M. • 16 • 302 • 10 • 1 -------------------------------------------------------------------------------------- 5-6 A.M. • 9 • 295 • 4 • 1 -------------------------------------------------------------------------------------- 6-7 A.M. • 15 • 273 • 4 • 1 -------------------------------------------------------------------------------------- 7-8 A.M. • 18 • 548 • 6 • 1 -------------------------------------------------------------------------------------- 8-9 A.M. • 35 • 892 • 13 • 1 -------------------------------------------------------------------------------------- 9-10 A.M. • 31 • 907 • 22 • 2 -------------------------------------------------------------------------------------- 10-11 A.M. • 33 • 941 • 24 • 3 -------------------------------------------------------------------------------------- 11 A.M.-12 P.M. • 36 • 956 • 30 • 3 -------------------------------------------------------------------------------------- 12-1 P.M. • 44 • 935 • 31 • 3 -------------------------------------------------------------------------------------- 1-2 P.M. • 41 • 1032 • 27 • 5 -------------------------------------------------------------------------------------- 2-3 P.M. • 47 • 853 • 30 • 5 -------------------------------------------------------------------------------------- 3-4 P.M. • 59 • 1274 • 34 • 4 -------------------------------------------------------------------------------------- 4-5 P.M. • 66 • 1570 • 37 • 4 -------------------------------------------------------------------------------------- 5-6 P.M. • 70 • 1316 • 35 • 5 -------------------------------------------------------------------------------------- 6-7 P.M. • 69 • 1137 • 27 • 3 -------------------------------------------------------------------------------------- 7-8 P.M. • 62 • 946 • 31 • 4 -------------------------------------------------------------------------------------- 8-9 P.M. • 77 • 1010 • 34 • 3 -------------------------------------------------------------------------------------- 9-10 P.M. • 73 • 1041 • 33 • 3 -------------------------------------------------------------------------------------- 10-11 P.M. • 75 • 870 • 26 • 1 -------------------------------------------------------------------------------------- 11 P.M.-12 A.M. • 68 • 817 • 24 • 1 --------------------------------------------------------------------------------------
Figures are rounded up and down accordingly.
444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). This opinion refers to OCA's activities in general as "canvassing" or "noncommercial soliciting," to distinguish them from solicitations of a purely commercial nature.
(R. 15-4, Smith Mem. at 1.)
