746 F.Supp.3d 918
D. Nev.2024Background
- Clark County, NV, enacted an ordinance making it a misdemeanor to stop or stand on pedestrian bridges along the Las Vegas Strip, aiming to maintain pedestrian flow and public safety.
- Plaintiffs: Brandon Summers, a violinist street performer, and Lisa McAllister, a wheelchair user, sued to challenge the ordinance.
- Plaintiffs allege the law is vague under the Fourteenth Amendment, overbroad under the First Amendment, and, as applied to McAllister, violates the ADA.
- Clark County moved to dismiss all claims and requested to stay discovery, while the plaintiffs sought injunctive relief barring enforcement of the ordinance.
- The court dismissed McAllister’s ADA claim for lack of standing, but allowed the constitutional claims and as-applied claim by Summers to proceed, finding more factual development is needed.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| ADA Standing (McAllister) | McAllister deterred from use by risk of prosecution for stopping due to disability | Risk of enforcement too speculative; law affects non-disabled similarly | Dismissed for lack of standing |
| ADA Disparate Impact | Ordinance burdens wheelchair users uniquely | Any person may have to stop for various reasons; no disproportionate burden | Dismissed for failure to state claim |
| Facial Overbreadth & Vagueness | Ordinance’s stop/stand language too vague/overbroad, chills protected conduct | Law is not vague/overbroad; valid time, place, and manner restriction | Not dismissed; insufficient record |
| First Amendment As-Applied (Summers) | Prevented from performing; credible threat of prosecution | Restriction is content-neutral, justified by public safety, ample alternatives | Not dismissed; factual questions |
| Preliminary Injunction | Irreparable harm; likely to succeed on merits | No likelihood of success, law serves public interest | Denied (not enough for injunction at this stage) |
| Stay of Discovery | - | No discovery needed for facial challenges | Denied; factual record needed |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (sets plausibility standard for pleading sufficiency at motion to dismiss stage)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausible claim for relief is required to survive 12(b)(6) dismissal)
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) (addresses standards for time, place, and manner restrictions on First Amendment activity)
- Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) (describes First Amendment overbreadth doctrine and facial/chilling effect exception)
- Village of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489 (1982) (vagueness challenges to statutes—must be vague in all applications outside First Amendment context)
- McCullen v. Coakley, 573 U.S. 464 (2014) (establishes requirements for time, place, or manner restrictions in public forums)
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (sets standard for preliminary injunctive relief)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (outlines Article III standing injury requirements)
- Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) (broad view of ADA deterrence standing)
- Crowder v. Kitigawa, 81 F.3d 1480 (9th Cir. 1996) (discusses ADA disparate impact; unique burden triggers ADA violation)
- Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997) (describes facial First Amendment challenge applicability and effect)