AMY BERMAN JACKSON, District Judge.
On March 24, 2011, the Ringling Bros. and Barnum & Bailey circus came to town. Compl. ¶ 8. On March 27, it packed up its tents and left. Id.
During the nights that the circus was performing at the Verizon Center in the District of Columbia, members of the organization Defending Animal Rights Today and Tomorrow ("DARTT"), the plaintiff in this action, handed out leaflets concerning Ringling's treatment of animals. Compl. ¶ 10. According to both the plaintiff and the defendants, the leafleting activity in question took place as the crowd of circus-goers exited the arena after each performance. Riley Decl. ¶ 2; Alioto Decl. ¶ 8. On at least one of the evenings, there were approximately seven protestors on hand to distribute fliers. Euler Decl. ¶ 3.
Plaintiff alleges that on March 24, Verizon Center employees directed the DARTT members to move away from their position under the overhang that shelters the Verizon Center doors "to the edge of the sidewalk," Compl. ¶ 1; Riley Decl. ¶ 2, and that on March 25, a Metropolitan Police Department officer instructed them "to move to a portion of the sidewalk that was not underneath the overhang." Compl. ¶ 14; Euler Decl. ¶ 3.
Plaintiff has moved for a preliminary injunction on behalf of its members "to prevent the Defendants from interfering with their First Amendment right to peacefully and lawfully hand out leaflets." Plaintiff's Memorandum of Points and Authorities in Support of Plaintiff's Motion for a Preliminary Injunction ("Pl.'s Memo.") at 2. Since DARTT has alleged only that its members will be seeking to "Defend[] Animal Rights ... Tomorrow" and not "Today," plaintiff has failed to demonstrate that it is likely to suffer irreparable harm in the absence of preliminary relief, and the motion will be denied.
The complaint presents the question of whether directing the protesters to move their leafleting activity from directly outside the arena doors to other points on the F Street sidewalk was an unconstitutional infringement of their First Amendment rights, Compl. ¶ 2, or whether it was reasonable restriction of the time, place, and manner in which they conducted one aspect of their lawful activity. It also raises the questions, among others, of whether the instructions to move — if they were improper — were issued pursuant to the governmental policy or custom that is the necessary predicate for municipal liability, see Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and Feirson v. District of Columbia, 506 F.3d 1063, 1066 (D.C.Cir.2007), whether defendant Washington Sports and Entertainment, LP ("WSE") is a state actor, and whether the defendants can appropriately characterize the undifferentiated portion of the F Street sidewalk that is shaded by the concrete overhang as "private property." See WSE Opp. at 5-7; Defendant District of Columbia's Opposition to Plaintiff's Motion for Preliminary Injunction ("DC Opp'n") § III; Riley Decl. ¶ 4; and Alioto Decl. ¶ 9.
A party seeking a preliminary injunction must establish the following: 1) he is likely to succeed on the merits; 2) he is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in his favor; and 4) an injunction serves the public interest. Winter v. Natural Resources Defense Council, Inc., et al., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). The Supreme Court spoke clearly in Winter:
Id. at 375-76 (emphasis in original).
Here, plaintiff has not demonstrated even a possibility of irreparable
Fraternal Order of Police Library of Congress Labor Comm., 639 F.Supp.2d at 24 (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006)).
The sole comment offered by the plaintiff to meet its burden to show the likelihood of irreparable harm is the following:
Pl.'s Memo. at 18 (citations omitted). This prediction cannot fairly be characterized as an "injury" — it is simply an observation about scheduling. In its reply, plaintiff cites Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669 (D.C.Cir.1985), for the proposition that it has presented sufficient evidence to support a finding that a future injury is "likely" to occur. But as the court stated in that case, "[t]he key word in this consideration is irreparable ... The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation weighs heavily against a claim of irreparable harm." Id. at 674. The plaintiff's desire for a prompt resolution of the underlying issues can be accommodated with a properly tailored scheduling order.
Based upon a consideration of the motion, the oppositions, plaintiff's reply brief,
Furthermore, it is not clear that plaintiff has demonstrated the "particularly strong" likelihood of success on the merits that would have warranted a relaxation of the other factors under the flexible approach. DARTT's members were not deprived of the right to leaflet entirely, and they were permitted to remain on the sidewalk on F Street where departing patrons would be walking. They not only handed out leaflets, but they expressed their views orally, amplified by a megaphone, Alioto Decl. ¶ 8, and they projected words and images onto the side of the Verizon Center itself. See Euler Decl. at 3 (attached photograph); Alioto Decl. ¶ 8. Plaintiff does not claim that these other expressive activities were curtailed in any way, and the record is devoid of any evidence suggesting, as plaintiff intimates, that the restrictions on the leafleting were related to the content of the fliers. See, e.g., Pl.'s Memo at 18. Plaintiff disputes Sgt. Alioto's declaration that the protestors were asked to move because they were obstructing the exit, and the videotapes provided by WSE may shed some light on that issue. See Ex. A to Touhey Decl. But there is no dispute that the DARTT members were directed to move further from the doors at the time when seven to ten thousand patrons were trying to exit. Riley Decl. ¶ 2; Touhey Decl. ¶ 3; see also Pl.'s Memo. at 1 (referring to "the 20,000 seat Verizon Center").
