Robert Henschen, Houston Non-Violent Action v. City of Houston, Texas

Citations: 959 F.2d 584; 1992 U.S. App. LEXIS 8505; 1992 WL 74328Docket: 91-2676

Court: Court of Appeals for the Fifth Circuit; April 30, 1992; Federal Appellate Court

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Robert Henschen, Houston Non-Violent Action, Reverend Jew Don Boney, and the Black United Front of Houston, the appellants, challenged the dismissal of their 1983 complaint against the City of Houston regarding the denial of a parade permit and the city's regulations on parades and street functions. The district court found no justiciable controversy and dismissed the case. The appellants argued this dismissal contradicted a prior appellate mandate. 

The background involved a dispute over a parade permit for July 8, 1990, coinciding with the Economic Summit in Houston. Initially, the district court issued a preliminary injunction requiring the City to authorize the permit, but this was stayed pending appeal. The appellants proceeded with a march not classified as a parade or street function, and later amended their complaint to seek damages for the permit denial and to challenge the city's ordinances. 

The appellate court found that the appeal regarding the preliminary injunction was moot after the July event and remanded for dismissal of the related injunctive relief claims. The district court complied by dismissing the injunctive claims but allowed for amendments, which did not occur. Subsequently, the court concluded that the only remaining issue was the past permit denial, declaring no ongoing case or controversy, and dismissed the entire case without prejudice. 

The appellate court affirmed part of the district court’s ruling but also reversed and remanded in part.

Appellants filed a motion for reconsideration under Fed. R. Civ. P. 59, citing two errors: their claim for compensatory damages and attorneys' fees under 42 U.S.C. § 1983 was a live controversy, and their allegations of being political activists who expect future denials of street access under city parade ordinances warranted reconsideration. The City opposed the motion, arguing that the claimed damages were too speculative to meet the 'case or controversy' requirement and that the request for permanent injunctive relief lacked substance since there were no allegations of a future denial of a permit for a specific event.

The district court denied the Rule 59 motion, indicating familiarity with the arguments presented. On appeal, appellants claimed that the district court's dismissal orders violated a prior mandate from the appellate court. However, the court found this claim unsupported, stating that the earlier dismissal did not limit the district court’s discretion on remand. The district court's denial of the motion addressed the merits of damages and injunctive relief without any suggestion that it was restricted by the appellate mandate.

Additionally, while appellants argued that their claims for damages and potential future harms were concrete enough to assert a live controversy, the court noted the need to analyze justiciability separately regarding damages and equitable relief. Although the case may be moot concerning immediate injunctive relief due to the passage of time, claims for monetary damages and prospective equitable relief remained viable for different reasons.

A claim for money damages remains valid despite the conclusion of the Economic Summit, particularly if the denial of a parade permit violated appellants' rights and caused actual harm, as established under Section 1983. Compensation must reflect actual damages rather than the mere intangible value of a constitutional right, requiring a robust claim rather than an insubstantial one. Appellants asserted that they experienced embarrassment and humiliation due to the denied permit for July 8, 1990. Although it is unclear how this embarrassment arose given their options to demonstrate elsewhere or on different dates, their claim is not deemed too speculative to proceed under Section 1983. Consequently, the dismissal of their damage claim is reversed and remanded.

On the issue of prospective injunctive relief against the City's parade ordinance, past illegal conduct alone does not establish a current case or controversy without ongoing adverse effects. Appellants must demonstrate a present threat of unlawful restrictions on speech. The Supreme Court emphasizes that courts should refrain from intervening unless there is a clear need for equitable relief. The appellants, consisting of a group of community activists formed for the Economic Summit, have since disbanded, asserting no ongoing threat from the City’s permit system. The likelihood of the group reassembling for future demonstrations is speculative, thus precluding a justiciable claim for equitable relief.

Appellants' reliance on City of Houston v. Hill is ineffective and supports the opposing argument. Hill, a homosexual activist, frequently interrupted police activities and sought injunctive relief against a city ordinance under which he was arrested, claiming it was unconstitutionally broad. The Supreme Court ruled that Hill had standing due to his consistent past behavior and intention to continue similar activities.

In contrast, the appellants engaged in a one-time demonstration, lacking evidence of ongoing activism or a pattern of parades. Even if they intended to hold parades, the first-come, first-served nature of the ordinance means they would only be denied a permit if others applied first, rendering their claims of interference speculative.

The plaintiffs also attempted to invoke an exception to the justiciability requirement, arguing that the controversy is likely to recur but may evade review. This exception necessitates two criteria: the action's duration must be too short for full litigation, and there must be a reasonable expectation of recurrence. The court found it unreasonable to expect that an ad hoc organization with an expired purpose would again be denied a permit, and the nature of the events allows for predictable planning.

The court concluded that the appellants did not demonstrate a concrete injury necessary for the justiciability of their claim against the city's parade ordinance. It emphasized that issuing advisory opinions on local ordinances is not within its proper role. The city’s ordinances aim to balance community safety and assembly interests without apparent arbitrary restrictions, placing the burden on challengers to show tangible disadvantages to their free speech before judicial intervention is warranted. Ruling on the ordinance's constitutionality based on a single instance of permit denial would merely constitute a prediction.

Plaintiffs seek a declaration that the parade ordinance is overbroad, a remedy that should be used sparingly and only in justiciable cases. Although the appellants have a non-trivial damages claim, they lack standing for prospective equitable relief. The District Court's decision is partially affirmed and partially reversed and remanded. The court noted a substantial likelihood that the trial court's injunction would be vacated, stating there is no credible evidence that the City of Houston engages in content-based regulation; rather, the City’s actions are content-neutral, allowing participation while maintaining order. The plaintiffs could have applied for a parade permit on a different day than July 8, the date they requested, and could have held a sidewalk march or rally in designated areas on that day. The City administers the ordinance on a first-come-first-served basis, and the plaintiffs were not first for the requested date. The plaintiffs' claim for attorney fees under 42 U.S.C. § 1988 is not viable since they did not prevail on their claims for damages or injunctive relief, and a remand for trial on damages does not guarantee attorney fees. The excerpt also contrasts this case with NAACP v. City of Richmond, in which the court allowed a facial challenge to a parade ordinance, emphasizing the unique context of that case involving repeated incidents of police violence against a black individual.