De La O v. Housing Authority of the El Paso

United States Court of Appeals

Fifth Circuit

F I L E D

REVISED JULY 18, 2005

July 18, 2005

In the

United States Court of Appeals Charles R. Fulbruge III

Clerk

for the Fifth Circuit

_______________

m 04-50363

_______________

ROSALINA DE LA O AND

MARIA CHRISTINA RIVERA,

Plaintiffs-Appellants,

VERSUS

HOUSING AUTHORITY OF THE CITY OF EL PASO, TEXAS,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Texas

m 3:02-CV-456-DB

______________________________

Before SMITH, DENNIS, and PRADO, any HACEP facility, was a candidate for chair

Circuit Judges. of the El Paso County Democratic Party and

sought to distribute literature and to campaign

JERRY E. SMITH, Circuit Judge: door-to-door at Sherman Oaks, a HACEP

facility. De la O resided at the Sun Plaza

I. Apartments (a HACEP-operated subsidized

In 2000, Jesus de la O and Roberto Vas- housing facility) and complained that the re-

quez sued to challenge certain regulations of strictions on political campaigning infringed on

the Housing Authority of the City of El Paso his First Amendment rights.

(“HACEP”). Vasquez, who did not reside in

The challenged regulations included a “tres- ident desires to distribute notices or flyers

pass after warning” policy and a policy re- in his development, the resident must obtain

stricting the distribution of flyers. These advance approval of the Development’s

regulations were as follows: Housing Manager and provide the Housing

Manager with a copy of the proposed

Rule D.2. Trespassing. The development notice or flyer. A resident may not distrib-

premises are for the exclusive use and en- ute a notice or flyer before 9:00 a.m. or

joyment of the residents, members of their after 8:00 p.m. Under no circumstances

households, their guests and visitors, and will a notice or a flyer be left in plain view

such other persons who have legitimate on a resident’s door if a resident of the unit

business on the premises, e.g., law enforce- is not at home or declines to answer the

ment and other governmental personnel, door. A resident distributing such flyers or

utility service workers, HACEP contrac- notices must do nothing to allow the flyers

tors, and others as authorized by HACEP. or notices to become litter or which would

All other persons will be regarded as tres- disrupt the peaceful use and enjoyment of

passers subject to prosecution as allowed the other residents in the development or

by state or municipal ordinance. the residents’ use of common areas.

Any person who desires access to any de- De la O v. HACEP, No. 02-CV-456, at 2 n.3

velopment premises and any person found (W.D. Tex. Mar. 24, 2004).1

on the walks, ways, playgrounds, parking

lots, drives and other common areas of the The district court dismissed on summary

development premises will be required by judgment, holding the challenged regulations

any law enforcement or HACEP personnel constitutional. On appeal, a panel of this court

to identify himself or herself and to prove reversed, holding that “the manner in which

authority to be on the development prem- HACEP seeks to accomplish its goal of crime

ises. Any person who refuses to provide prevention is unreasonable under the circum-

personal identification or cannot show au- stances herein presented,” and the regulations

thority to be on the development premises were therefore unconstitutional.2 The case,

will receive a ‘trespass warning’ ordering however, was voted en banc, and after briefing

the person to leave the development pre-

mises or be subject to arrest and prosecu-

tion to the extent permitted by state law or 1

The text excerpted above constitutes the rules

municipal ordinance. in effect at the time of the district court’s decision

in the present action. Nevertheless, the rules in

Any person observed by law enforcement effect at the time of the first de la O (Vasquez)

or HACEP personnel violating any HACEP action appear to have been substantially identical.

rule, or federal, state or municipal law,

regulation, or ordinance will be ordered by 2

law enforcement or HACEP personnel to Vasquez v. HACEP, 271 F.3d 198, 204 (5th

Cir. 2001), vacated for reh’g en banc, 289 F.3d

leave the development premises.

350 (5th Cir. 2002), order denying motion to sub-

stitute party and granting motion to dismiss ap-

Rule D.5. Notices and Flyers. HACEP peal as moot, No. 00-50702 (5th Cir. Sept. 23,

does not allow door-to-door sales. If a res- 2002), cert. denied, 536 U.S. 904 (2003).

2

and argument had concluded, de la O died. cle III to hear “cases and controversies.” U.S.

Because Vasquez had not filed an appeal, the CONST. art. III, § 2. Accordingly, an actual,

absence of a living plaintiff rendered the case live controversy must remain “at all stages of

moot, and it was dismissed. federal court proceedings, both at the trial and

appellate levels.”3 That is, “[t]he requisite per-

In 2002, de la O’s widow, Rosalina de la O, sonal interest that must exist at the commence-

and Maria Christina Rivera brought the current ment of the litigation (standing) must continue

suit challenging HACEP’s trespass and distri- throughout its existence (mootness).’”4

bution rules. On HACEP’s motion for sum- Therefore, a request for injunctive relief re-

mary judgment, the district court concluded mains live only so long as there is some pres-

that (1) no genuine issue of material fact ent harm left to enjoin. HACEP contends that

remained for trial, (2) the HACEP facilities its amendment to the regulations renders de la

constitute non-public fora, (3) the rules were O’s claims moot.

viewpoint neutral, and (4) the rules were

reasonable. As a consequence, the court held A.

that the rules did not violate the First Amend- This logic is valid only insofar as it pertains

ment and dismissed the plaintiffs’ claims. to the claims for injunctive relief. It is well-

established that “[c]laims for damages or other

After this appeal was filed, HACEP volun- monetary relief automatically avoid mootness,”

tarily amended the rules, which now allow for so long as the underlying claim remains valid

non-residents to enter facilities to engage in on its merits.5 If, on the other hand, the defen-

political and religious activities door-to-door. dants were immune from a damages award, it

The trespassing regulation now contains a sec- would be unnecessary for us to consider the

tion entitled “Political and Religious Activi- constitutionality of the un-amended regula-

ties,” which explicitly allows any person to en- tions.6 Although such a result would allow us

ter a HACEP development to engage in po-

litical campaigning and/or religious proselytiz-

ing. To take advantage of this new policy, a

non-resident must provide advance notice to

the development’s management. Additionally, 3

ERWIN CHEMERINSKY, FEDERAL JURISDIC-

the policy no longer requires management’s

TION § 2.5.1, at 125 (4th ed. 2003).

approval of a copy of a flyer in advance of its

distribution. One must still give advance 4

United States Parole Comm’n v. Geraghty,

notice that he will be distributing literature. 445 U.S. 388, 397 (1980) (quoting Henry Mona-

ghan, Constitutional Adjudication: The Who and

At this court’s request, the parties submit- When, 82 YALE L.J. 1363, 1384 (1973)).

ted supplemental briefing on the question

5

whether these amendments render the case 13A CHARLES A. WRIGHT, ARTHUR R. MIL-

moot. HACEP contends the case is moot, and LER & EDWARD H. COOPER, FEDERAL PRACTICE

plaintiffs argue that their claims survive the AND PROCEDURE: JURISDICTION 2D § 3533.3, at

amendments. text accompanying n.2.

6

See Chase v. McMasters, 573 F.2d 1011,

II. 1015 (8th Cir. 1978) (dismissing an otherwise vi-

The federal courts are empowered by Arti- able claim for damages on immunity grounds).

3

to avoid a constitutional question,7 HACEP, with our policy that the court of appeals will

the sole defendant, is an entity comprised not normally consider evidence or arguments

wholly of members appointed by the mayor of not presented to the district court.10

El Paso. As an arm of local government, not

an instrument of the state, it is not entitled to On the other hand, remanding the case po-

sovereign immunity under the Eleventh tentially creates further difficulties. For exam-

Amendment.8 The doctrine of qualified im- ple, if we were to remand and the district court

munity, furthermore, is applicable only to gov- proceeded again to uphold the regulations as

ernment officials, not municipal entities.9 The valid, HACEP could again amend its regula-

pleading of a colorable claim for damages thus tions while an appeal was pending. Such a cir-

precludes a finding of mootness. cumstance necessarily would deprive the

plaintiffs of any possibility of appellate review.

B. Similar concerns have motivated the courts to

The existence of the claim for damages, recognize an exception to the mootness doc-

however, does not end our inquiry. That is, al- trine where a challenged behavior is voluntarily

though we must consider the constitutionality ceased by the defendant but the defendant is

of the rules (pre-amendment) for purposes of capable of resuming the practice at any time.

the damages claim, the plaintiffs continue to See, e.g., United States v. W.T. Grant Co., 345

press their claim for injunctive relief against U.S. 629, 632 (1953).

the amended rules. Neither side’s brief ad-

dresses the problem of our court’s reviewing, Furthermore, were we to remand, the out-

in the first instance, the constitutionality of come in the district court is certain. Although

regulations that, in their current form, have not the current regulations differ from those at is-

been evaluated by the district court. sue before the district court, the new regula-

tions are less restrictive than their predeces-

One possible option for dealing with this sors. Given that the district court deemed the

dilemma would be to remand for the district prior rules constitutionally permissible, that

court to have the first opportunity to consider court presumably would find that the amended

the constitutionality of the amended regula- rules also pass constitutional muster. Under

tions. Such an approach would be consistent such circumstances, the decision to remand,

aside from allowing for the evasion-of-review

situation set forth above, would be inefficient.

7

See Ashwander v. Tenn. Valley Auth., 297 Consequently, the constitutionality of both sets

U.S. 288, 346-47 (1936) (Brandeis, J., concurring) of regulations is properly before us.

(describing the doctrine of constitutional avoid-

ance). III.

De la O contends that the district court im-

8

See Bd. of Trustees v. Garrett, 531 U.S. 356,

368-69 (2001).

10

See Nisso-Iwai Am. Corp. v. Kline, 845 F.2d

9

See Owen v. City of Independence, Mo., 445 1300, 1307 (5th Cir. 1988) (“[O]ur review is con-

U.S. 622, 653 n.37 (1980) (“[T]he justifications fined to an examination of materials before the

for immunizing officials from personal liability lower court at the time the ruling was made; sub-

have little force when suit is brought against the sequent materials are irrelevant.”).

governmental entity itself.”).

4

properly disposed of the case on summary court’s above-stated conclusion of content-

judgment despite the existence of issues of neutrality.

material fact. We review a summary judgment

de novo. Harris v. Rhodes, 94 F.3d 196, 197 With respect to the facts underlying the

(5th Cir. 1996). Where, as here, we are con- court’s reasonableness conclusion, on the oth-

sidering a First Amendment challenge to a er hand, de la O asserts that affidavits in the

government regulation of speech in a non-pub- record contradict the evidence proffered by

lic forum, the relevant question is whether the HACEP, and accepted by the district court, in

regulation is viewpoint-neutral and reasonable support of the reasonableness of the restric-

in light of the forum’s purpose.11 Therefore, tions. Specifically, in holding that the rules

summary judgments are appropriate only were reasonable, the district court relied on the

where there is no factual issue relating to the affidavit testimony of Ned Beman, HACEP’s

neutrality of a regulation (on its face or as Director of Housing Management, who stated

applied) or with respect to the government’s that the proffered purpose of the challenged

proffered support for the restriction’s reason- rules is

ableness.

the protection and safety of HACEP’s ten-

The district court found that the restrictions ants, many of which are elderly residents

are content- and viewpoint-neutral, facially and are frightened by door-to-door solici-

and as applied. In its opinion granting sum- tors due to the fact that the majority of

mary judgment, the district court noted, those arrested on HACEP property are

non-residents engaged in narcotics distribu-

Plaintiffs have not presented one scintilla of tion. Additionally, Beman’s uncontradicted

evidence that suggests that any political testimony reveals that the [INS] operates a

candidates were denied access to HACEP’s surveillance station in at least one of its

complexes because HACEP disagreed with complexes, the Sun Plaza, because of the

a particular political message. Moreover, large number of undocumented aliens who

Plaintiffs have not presented any evidence pass through that complex.

to suggest Rules D.2 and D.5 were en-

acted, or are being applied, to censor those Id. at 3.

messages with which HACEP disagrees.

Attempting to demonstrate that Beman’s

De la O, No. 02-CV-456, at 9. Although, in assertions are in fact in controversy, plaintiffs

their supplemental brief on the mootness ques- point to the affidavit of David Marquez, the

tion, the plaintiffs reference their “challenge . former head of security at HACEP. In the first

. . as to application by selective enforcement,” place, de la O makes no attempt to suggest

they point to little evidence in the record that which elements of Marquez’s affidavit specifi-

could serve as the basis for disturbing the cally raise factual issues. We review summary

judgments de novo, using the same standard as

that employed by the district court. Namely,

11 once the moving party has demonstrated that

Both our conclusion that the relevant forum

the non-moving party has no evidence such

is non-public in nature, and the relevant constitu-

tional inquiry, will be discussed in much greater

that a reasonable jury could support a verdict

detail in part IV, infra. in its favor, the non-moving party must put

5

forth specific facts that demonstrate a genuine under rule 56(e). Bolen v. Daniel, 340 F.3d

factual issue for trial. Brennan v. Mercedes 300, 313 (5th Cir. 2003).

Benz, 388 F.3d 133, 135 (5th Cir. 2004).

For example, in response to Beman’s asser-

That is, once HACEP satisfied its burden by tion that elderly residents are fearful of door-

proffering Beman’s testimony, the burden to-door solicitors, Marquez stated that Be-

shifted to de la O to demonstrate a remaining man’s position is “at best an exaggeration.”

factual controversy. The perfunctory and con- This conclusion is not apparently based on any

clusional assertion that a particular affidavit specific personal knowledge on the part of

creates such a conflict normally will not suf- Marquez, but rather on an unsubstantiated be-

fice. “Judges are not like pigs, hunting for lief. Similarly, Marquez puts forth that it is his

truffles buried in briefs.” United States v. “understanding” that the local police chief and

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). sheriff have declared El Paso among the coun-

try’s safest cities. In addition to being patently

The shortcomings of plaintiffs’ briefing not based on personal knowledge, this state-

aside, however, Marquez’s affidavit creates no ment does little to refute Beman’s assertions.

genuine issues of fact, but instead alleges that

Marquez’s experience did not indicate that In sum, Marquez adds some facts to the

door-to-door solicitation had ever yielded record that the district court could easily con-

criminal activity. As HACEP ably points out, sider when making its reasonableness conclu-

however, Beman never asserted anything to sion as a matter of law. On the other hand,

the contrary. Marquez’s affidavit does not squarely cast into

doubt any of Beman’s material assertions. To

Rather, Beman asserted that allowing door- the extent that some aspects of the Marquez

to-door solicitation might permit criminals to affidavit do attempt to refute Beman’s posi-

pose as legitimate visitors. He urged that a tions, those passages do not constitute proper

purpose of the regulation was to prevent summary judgment evidence. Marquez does

crime. Marquez’s observation does not raise nothing to refute the premise that the rules in

a factual issue as to whether that purpose is question are advanced for the purpose of the

factually correct. At best, his assertions pro- protection and safety of the HACEP residents.

duce competing factual evidence for the court With the exception of the prior-approval

to weigh in determining, as a matter of law, provision in Rule D.5, which we address infra,

whether the alleged purposes are served by the the district court therefore did not err by

regulations, a determination that is necessary resolving the case on summary judgment.

to its eventual reasonableness conclusion. No

direct factual disputes, however, are raised. IV.

As discussed above, the restrictions now in

Marquez’s other statements that might pos- place require that (1) there be no distribution

sibly be construed as raising a genuine issue of of flyers or notices between 8:00 p.m. and

fact also fail, because they do not appear to be 9:00 a.m.; (2) a tenant wishing to distribute

based on personal knowledge, but rather on flyers during the permitted hours must give

speculation. See FED. R. CIV. P. 56(e). State- advance notice to the Housing Manager;

ments made on information and belief do not (3) no flyers may be left on a tenant’s door if

constitute proper summary judgment evidence no one answers; (4) non-residents may enter a

6

HACEP facility for political and/or religious thoughts between citizens, and discussing

activities if they provide advance notice to the public questions.’” Perry, 460 U.S. at 44

complex’s manager, in writing or by telephone; (quoting Hague v. CIO, 307 U.S. 496, 515

(5) if a non-resident wishes to enter for reli- (1939)).

gious or political purposes on a weekend, he

must be certain to have given notice before the The next category encompasses those areas

close of business on Friday; and (6) any door- that, although not traditionally places reserved

to-door activities by non-residents must be for public expression, have been opened by the

carried out between 9:00 a.m. and 8:00 p.m. state for expressive activity. These designated

public fora can include university meeting halls

A. and municipal theaters. See Widmar v. Vin-

Although de la O is not claiming that she cent, 454 U.S. 263, 277 (1981); Southeastern

has been prevented from engaging in any ac- Prods., Ltd. v. Conrad, 420 U.S. 546, 555

tivities, such as political campaigning, the right (1975). The remaining public property is

to receive information is as equally protected classified as non-public fora, a sweeping cate-

as is the right to convey it. See Martin v. City gory that includes a wide range of places such

of Struthers, 319 U.S. 141, 143 (1943) (strik- as jails, military bases, and interstate highway

ing down ordinance prohibiting door-to-door rest stops.12

distribution of handbills). Where regulations

restricting speech touch only activities to be Although restrictions on speech in public

carried out on government property, however, fora and designated public fora are closely

we review their validity under a framework scrutinized and are valid only if content-neutral

different from the one we would use if the and necessary to serve a compelling govern-

restriction swept more broadly. ment interest, restrictions on the use of non-

public fora are reviewed with far greater de-

“The existence of a right of access to public ference to policymakers. Perry, 460 U.S. at

property and the standard by which limitations 46. In such fora, the state may enforce time,

upon such a right must be evaluated differ place, and manner restrictions and regulations

depending on the character of the property at intended to reserve the forum for its intended

issue.” Perry Educ. Ass’n v. Perry Local purpose “as long as the regulation on speech is

Educators Ass’n, 460 U.S. 37, 44 (1983). reasonable and not an effort to suppress ex-

There are three distinct categories of govern- pression merely because public officials op-

ment property. pose the speaker’s view.” Id.

The first category, traditional public fora, Because HACEP complexes are govern-

consists of those locations that “by long tradi- ment-owned property, analysis of the validity

tion or by government fiat have been devoted of HACEP’s restrictions on First Amendment

to assembly and debate.” Cornelius v. NAACP

Legal Defense & Educ. Fund, Inc., 473 U.S.

788, 802 (1985). Traditional public fora 12

See Adderley v. Florida, 385 U.S. 39, 47-48

include public streets and parks, “which ‘have

(1966); M.N.C., Inc. v. United States Dep’t of De-

immemorially been held in trust for the use of

fense, 791 F.2d 1466, 1473 (11th Cir. 1986); Sen-

the public, and, time out of mind, have been tinel Communications Co. v. Watts, 936 F.2d

used for purposes of assembly, communicating 1189, 1204 (11th Cir. 1991).

7

activity requires us first to determine the type U.S. at 46. There is no evidence in the record

of forum these complexes constitute. Public even suggesting that HACEP has discrimi-

housing facilities such as those which HACEP nated among speech on the basis of the view-

operates have repeatedly been held to consti- point of the speaker, either on the face of the

tute non-public fora.13 rules or in the manner in which they have been

applied. Because the regulations are therefore

It is beyond dispute that the primary pur- viewpoint- neutral, they survive scrutiny so

pose for the very existence of HACEP’s fa- long as they are “reasonable in light of the

cilities is to provide affordable housing to purpose served by the forum.” Good News

those in El Paso needing financial assistance. Club v. Millford Cent. Sch., 533 U.S. 98, 107

Certainly, the complexes are used for social (2001).

interaction, but HACEP was not created to fa-

cilitate the expression of ideas or serve as a It is difficult to see how, in light of the re-

meeting place for citizens. Other than making cent amendments, de la O can claim that the

a cursory assertion that this case is distinguish- rules are unreasonable. A local government’s

able from Daniel, 38 F.3d at 550 (holding that proffered interestSScrime preventionSSis obvi-

housing projects are non-public fora), plaintiffs ously a weighty one.15 Furthermore, Beman’s

make no real attempt to explain how the affidavit speaking to the presence of an INS

complexes could be considered even desig- surveillance operation onsite at one of the

nated public fora.14 It seems obvious, there- complexes demonstrates that an additional

fore, that for purposes of our further analysis, purpose of the trespassing regulation is to limit

HACEP’s facilities are non-public fora. use of the complexes as havens for undocu-

mented aliens.16

B.

Even in non-public fora, the state may re- When examining the reasonableness of re-

strict speech only in such a manner as is rea- strictions on speech, the existence of alterna-

sonable and viewpoint-neutral. See Perry, 460 tive channels of communication is integral.17

Obviously a number of alternative channels

exist here. Though one cannot, under the

13 amended regulations, distribute flyers between

See Daniel v. City of Tampa, Fla., 38 F.3d

546, 550 (11th Cir. 1994); Crowder v. Housing 8:00 p.m. and 9:00 a.m., the vast majority of

Auth., 990 F.2d 586, 591 (11th Cir. 1993) (delin- most residents’ waking hours are within the

eating library of housing project as non-public

forum); Daily v. New York City Housing Auth.,

221 F. Supp.2d 390, 399 (S.D.N.Y. 2002) (hold- 15

See, e.g., City of Renton v. Playtime The-

ing that community center at housing project was aters, Inc., 475 U.S. 41, 47 (1986) (upholding zon-

non-public forum by default and a designated pub- ing restrictions on nude dancing where restriction

lic forum “at times other than during the regularly was designed to curtail crime).

scheduled educational activities”); see also Vas-

16

quez, 271 F.3d at 202 (holding that the HACEP See INS v. Delgado, 466 U.S. 210, 223

facilities are non-public fora). (1984) (describing government’s interest in enforc-

ing immigration laws as “enormous”).

14

Indeed, at oral argument, appellants’ counsel

17

seemed to concede that the complexes at issue are See Vasquez, 271 F.3d at 208 (Barksdale, J.,

non-public fora. dissenting).

8

times when such distribution is permitted. of Stratton, 536 U.S. 150 (2002), in which the

Court struck down a municipal ordinance that

Further, it is true that non-residents seeking required the requisition of a permit before an

to engage in political activities, spontaneously, individual could engage in door-to-door activi-

on a weekend would be unable to do so. Nev- ties. Inasmuch as the ordinance applied to re-

ertheless, spontaneous activity during weekday ligious proselytizing, anonymous political

business hours (when advance notice could be speech, and the distribution of handbills, rather

given to the housing manager) is permissible. than commercial solicitation, the Court held

that its restrictions were invalid. Id. at 165.

Additionally, it is not that weekend activi- As much as de la O wishes to liken her case

ties are prohibited; rather, non-residents must to Watchtower, it is inapposite. The ordinance

only have the foresight to notify management, at stake in Watchtower applied to the entire

by the close of business on Friday, of their in- municipality and was not limited to non-public

tention to go door-to-door over the weekend. fora such as the HACEP facilities. Tellingly,

Although this undoubt edly constitutes a bur- the Court did not even discuss forum analysis

den, it can hardly be dubbed a constitutionally in its opinion. Consequently, it is obvious that

unreasonable one in light of the alternatives Watchtower was decided under an entirely

presented to potential speakers. different rubric and is not controlling here.

In Daniel, 38 F.3d at 550, the court consid- Secondly, de la O argues that the HACEP

ered a trespass statute that was nearly identical regulations must be struck down because of

to the restrictions used by HACEP before the their alleged overbreadth. It seems that de la

recent amendments and concluded that the O misconstrues the nature and function of the

trespass statute was perfectly constitutional, overbreadth doctrine. According to de la O,

partly in light of the alternative means of com-

munication left open to speakers. That is, [T]he regulations sweep broadly, covering

even if denied access to the entire complex, unpopular causes unrelated to commercial

speakers would have access to adjacent streets transactions or to any special interest in

and sidewalks to disseminate their messages. protecting the residents. Secondly, requir-

Under the amended regulations, the burdens ing a permit as a prior condition on the ex-

on potential speakers are significantly lessened ercise of the right to speak imposes here a

and are constitutionally permissible. burden on the speech of citizens holding re-

ligious or patriotic views. Third, there is a

The plaintiffs’ brief does not distinguish significant amount of spontaneous speech

between arguments focused on the regulations that is effectively banned by the regulations.

pre-amendment and those attacking the cur- Even a spontaneous decision to go across

rent regulations. Regardless of which set of the street, with a flyer, and urge a neighbor

regulations are being attacked, the plaintiffs to vote against the mayor who appoints the

make two, ultimately unavailing, arguments HACEP board, could not lawfully be imple-

that nevertheless warrant brief discussion. mented without first obtaining permission

from those who work for the board that is

First, de la O places great emphasis on appointed by the Mayor. This kind of re-

Watchtower Bible & Tract Society v. Village strictions and inhibitions [sic] cannot with-

9

stand constitutional muster and must fail. edly unconstitutional restrictions.

Although the above-quoted excerpt might In reality, however, de la O already has

serve as a persuasive argument for the unrea- such standing. Her claim is predicated on her

sonableness of the statute under the applicable own supposed injury resulting from the alleged

rubric of forum analysis, it has little to do with unconstitutionality of the HACEP regula-

the doctrine of overbreadth. “[O]verbreadth tionsSSthat is, she is unable, for example, to

challenges call for relaxing familiar require- receive unsolicited flyers and notices from

ments of standing, to allow a determination non-residents who have not given advance no-

that the law would be unconstitutionally ap- tice to housing management. The overbreadth

plied to different parties and different circum- argument, therefore, is inapplicable to de la

stances from those at hand.” Sabri v. United O’s case. The new regulations do not run

States, 541 U.S. 600, 609 (2004). For exam- afoul of the First Amendment, and the plain-

ple, in Virginia v. Hicks, 539 U.S. 113, 118 tiffs are not entitled to injunctive relief.

(2003), the defendant sought to avoid convic-

tion by invoking the overbreadth doctrine and V.

challenging the constitutionality of a Virginia Even though HACEP has voluntarily

trespass statute. amended the challenged regulations, de la O’s

complaint seeks not only injunctive relief, but

Hicks [did] not contend that he was en- also damages. Consequently, as discussed

gaged in constitutionally protected conduct above, HACEP’s voluntary amendment of the

when arrested; nor [did] he challenge the rules does not render moot the plaintiffs’ ob-

validity of the trespass statute under which jections to the prior regulations, so we must

he was convicted. Instead he claim[ed] that consider, in addition to the constitutionality of

the RRHA policy barring him from the amended regulations, the propriety of the

Whitcomb Court [was] overbroad under regulations as they existed at the time of the

the First Amendment, and cannot be ap- district court’s decision.

plied to himSSor anyone else.

The changes in the regulations certainly

Id. have no effect on the nature of the forum in

question. That is, HACEP facilities have been

In this case, therefore, overbreadth analysis non-public fora both before and after the

might be helpful to de la O were she, say, a amendments to the regulations. Similarly,

trespasser who was arrested pursuant to the there is no indication in the record that the

HACEP regulations and yet was not on previous regulations were anything but com-

HACEP property to engage in First Amend- pletely neutral as to content and viewpoint,

ment-protected conduct, but instead was pres- both on their face and as applied. The relevant

ent merely to loiter. In such a circumstance, inquiry, therefore, goes to the “reasonable-

normal standing requirements would preclude ness” of those regulations with reference to the

her from challenging the constitutionality of purpose of the forum. See Good News Club,

the regulations. Invoking overbreadth, how- 533 U.S. at 107.

ever, would enable her to benefit from the

same First Amendment arguments available to Before their amendment, the regulations re-

those who are legitimately burdened by alleg- stricted access to the HACEP complexes by

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uninvited non-residents to those “persons who the issue, the exchange between the majority

have legitimate business on the premises, e.g., and the dissent in Vasquez omitted a key as-

law enforcement and other governmental per- pect of the issue. Rule D.5, before amend-

sonnel, utility service workers, HACEP con- ment, required that “[i]f a resident desires to

tractors, and others as authorized by HACEP.” distribute notices or flyers in his development,

All others found on the property would receive the resident must obtain advance approval of

a trespass warning and would be forced to the Development’s Housing Manager and pro-

leave or face arrest. Before the amendments, vide the Housing Manager with a copy of the

this regulation had no provision excepting proposed notice or flyer.” De la O argues now

those wishing to enter the property to engage on appeal that “[t]he Court has held that a

in political campaigning or religious proselytiz- requirement that one must register before he

ing. Additionally, residents wishing to distrib- undertakes to make a speech to enlist support

ute notices or flyers, door-to-door, were for a lawful movement is quite incompatible

forced to submit a copy, to management, of with the requirements of the First Amend-

the literature to be distributed and to receive ment.” See Thomas v. Collins, 323 U.S. 516,

prior approval. 539-40 (1945). The Supreme Court has

repeatedly reaffirmed that prior registration

Considering the constitutionality of the for- requirements are troubling in the free speech

mer regulations, in Vasquez, 271 F.3d at 206, context.18

the panel majority concluded that the pre-

amendment regulations were “an unreasonable The district court, in its otherwise compre-

restriction on the freedoms guaranteed by the hensive and persuasive order, gave scant atten-

First Amendment.” In reaching its decision, tion to the specific advance-approval require-

the panel relied heavily on the importance of ment of Rule D.5. The court did, however,

door-to-door campaigning in our democratic make the blanket statement (which we have

system. Because HACEP residents “generally previously noted) that “Plaintiffs have not pre-

conduct themselves like individuals in any oth- sented any evidence to suggest Rules D.2 and

er neighborhood in El Paso . . . the citizens D.5 were enacted, or are being applied, to cen-

who reside in the HACEP developments de- sor those messages with which HACEP dis-

serve access to political information in the agrees.”

same manner as other citizens of El Paso.” Id.

at 204. That statement is somewhat called into

question by summary judgment evidence from

In response, Judge Barksdale dissented, an affiant named Valverde, alleging that she

emphasizing that the purpose of the HACEP had a falling out with HACEP management

facilities is to provide housing, not a “meeting and certain fellow residents regarding her

place for the exchange of ideas.” Id. at 208. presidency of the residents’ association, stating

Additionally, the fact that there are a multitude that “I as a courtesy advised Linda Pena,

of alternative channels of communication, such

as the streets and sidewalks surrounding

HACEP complexes, provides further evidence 18

See Watchtower, 536 U.S. at 164; Hynes v.

of the reasonableness of the restrictions.

Mayor & Council, 425 U.S. 610, 629 n.4 (1976);

Eisenstadt v. Baird, 405 U.S. 438, 455 (1972)

Despite an otherwise exhaustive analysis of (Douglas, J., concurring).

11

Assistant Project Manager that I was going to portion of the judgment that blesses the former

leaflet the flyer herein contained as Exhibit ‘B.’ Rule D.5 is VACATED and REMANDED for

I did so in order to in order [sic] defend my any further proceedings that may be needed.

name. Later that day I was instructed by

Linda Pena, to stop leafleting. She said that

the order came from Bernie Rodriguez, Pro-

ject Manager.”

It is undeniable that the Constitution forbids

the use of a leafleting policy to quell certain

points of view. It is therefore necessary to

vacate and remand, but only as to the former

version of Rule D.5, so the district court can

determine whether it was used to discriminate

on the basis of viewpoint, and if so, whether

there was compensable injury. It may be that,

given the remainder of our determinations

regarding the past and present rules, the plain-

tiffs will no longer find it advisable to pursue

this very small portion of the case, but that is

for the district court and parties to resolve.

VI.

In summary, despite HACEP’s voluntary

decision to amend the challenged regulations,

a live controversy remains. With the exception

of the former Rule D.5 regarding prior ap-

proval, the present and past regulations pass

constitutional muster because the housing fa-

cilities are public fora.

The HACEP facilities are non-public fora

and, thus, restrictions on speech within their

confines are valid so long as they are view-

point-neutral and reasonable in light of the

purpose of the forum. The amended regula-

tions dispense with most of the problems to

which the Vasquez majority pointed. Under

the deferential “reasonableness” standard, they

are constitutional. The prior regulations pre-

sent a closer question but, in light of the over-

riding need to provide safe housing, they are

constitutional with the exception noted above.

The judgment is AFFIRMED, except that the

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