Preliminary injunction requires plaintiffs to show they are ‘likely to suffer irreparable harm’ unless enforcement of ban is immediately halted
SAN FRANCISCO (Dec. 20, 2012) — A week after moving to dismiss the federal Constitutional challenge to San Francisco’s recently enacted ban on most public nudity, City Attorney Dennis Herrera today filed the City’s opposition to an unlikely procedural move by four nudism advocates to halt enforcement of the ordinance through a preliminary injunction. At stake in the litigation currently pending in U.S. District Court is whether the law will become operative on Feb. 1, as the legislation specified, or whether U.S. District Court Judge Edward Chen will order a stay for the duration of the legal action. San Francisco’s ban on public nudity would apply to streets, sidewalks and public rights-of-way, with exceptions for permitted events and for children under the age of five.
Under federal case law, plaintiffs seeking a preliminary injunction must generally demonstrate to the court a likelihood to succeed on the merits of the underlying case, while also proving that such a remedy is both in the public interest and necessary to prevent irreparable harm to the plaintiffs.
“Given that San Francisco temperatures average in the 50s through February, it’s difficult to imagine what irreparable harms plaintiffs would suffer if they couldn’t be naked in public immediately,” said Herrera. “Federal case law sets a high standard for courts to grant extraordinary relief like preliminary injunctions, and we see no absolutely no basis for it here.”
The lawsuit was filed on Nov. 14, 2012 — nearly three weeks before San Francisco’s Board of Supervisors actually passed ordinance on Dec. 4 — by four nudism advocates who alleged that the measure violates their rights under the U.S. Constitution’s First and Fourteenth Amendments, and is also preempted by California law. The plaintiffs originally sought a motion for a temporary restraining order that would halt the legislative process from moving forward. Judge Chen did not hear that motion, but opted instead to consider the challenge instead as a petition for a preliminary injunction, once the ordinance was enacted.
The plaintiffs: are Mitch Hightower, whose “nude-in” events at the busy intersection of Castro and Market Streets intend to encourage “peace and fellowship among nudists”; Oxane “Gypsy” Taub, who operates a website called “mynakedtruth.tv,” and purports to produce a television program on nude activism; Russell Mills who operates a website called “naked-truth.net”; and George Davis, the self-described “Naked Yoga Guy” who was a candidate for Mayor of San Francisco in 2007.
The ordinance under challenge amended San Francisco’s Police Code to prohibit individuals from exposing their genital region on public streets, sidewalks, and most other public rights-of-way as well as on transit vehicles and in transit stations. Policymakers created specific exceptions to allow for nudity during permitted festivals like the Bay to Breakers foot race, the Folsom Street Fair and the LGBT Pride Parade. Herrera’s pleading notes that even clothing as minimal as a G-string would satisfy the ordinance’s requirements.
The case is: Mitch Hightower et al. v. City and County of San Francisco et al., United States District Court, Northern District of California, Case No. C-12-5841 EMC, filed Nov. 14, 2012.
PDF of the Nudity Ban Opposition to Motion for Preliminary Injunction (Dec. 20, 2012)