Case 7:14-cv-00771 Document 22 Filed in TXSD on 10/02/15 Page 1 of 13

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
HECTOR GUZMAN LOPEZ,
Plaintiff,
VS.
CITY OF MCALLEN,
Defendant.

CIVIL ACTION NO. 7:14-CV-771

OPINION and ORDER

The Court now considers the self-styled Plaintiffs Motion for Partial Summary
Judgment Based on a Facial Challenge to Defendants Ordinance1 filed on May 13, 2015 by
Hector Guzman Lopez (Plaintiff). City of McAllen (Defendant) filed a response to the
motion on June 2, 2015,2 and Plaintiff filed a reply on June 19, 2015.3 After considering the
motions, responses, record, and relevant authorities, Plaintiffs motion for partial summary
judgment is GRANTED IN PART and DENIED IN PART.
I.

Background

On September 1, 2014, Plaintiff filed suit in this Court asserting various claims against
Defendant. The alleged facts recited herein are taken from Plaintiffs complaint. The Court
recites only those facts it finds pertinent to the instant motion.
On May 1, 2014 and May 15, 2014, Plaintiff and other members of the group Fuerza del
Valle Workers Center held anti-wagetheft protests on public sidewalks in McAllen, Texas.4 On
each of these two occasions, Plaintiff alleges that he and the other members of the group were

Dkt. No. 16 (Motion).

Dkt. No. 17 (Response).
3
Dkt. No. 18 (Reply).
4
Dkt. No. 1 (Complaint) at 9-18.
2

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prevented from exercising their right to free speech when Defendant threatened them with
citations for violating ordinances banning shouting and the use of bull-horns during protests.5
Furthermore, Plaintiff accused Defendant of selective and content-based enforcement because
Defendant did not enforce the ordinance at other public gatherings where McAllen police were
present, such as the FIFA World Cup viewing party, a Palestinian solidarity demonstration, and
at a pro-immigrants rights demonstration.6
Among the various claims in his original complaint, Plaintiff claimed that Sections 46143(4) and 46-145 of the McAllen Code of Ordinances, which prohibit yelling and the use of
loudspeakers, were unconstitutionally overbroad.7 Additionally, Plaintiff claimed that an
exception . . . contained in [Defendants] definition of Disturbance at Section 46-141, was
impermissibly vague.8 On May 13, 2015, Plaintiff filed the instant motion for partial summary
judgment requesting the Court rule in favor of Plaintiff on these two claims by declaring that
Sections 46-141 (Disturbance), 46-143(4) and 46-145 of the ordinance are unconstitutional
restrictions of the freedom of speech on their face.9
II.

Motion for Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment is proper when there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.10 A fact is material if its resolution could affect the outcome of the action,11 while a
genuine dispute is present only if a reasonable jury could return a verdict for the non-

Id.
Id. at 27-43.
7
Id. at 46-47.
8
Id. at 48.
9
Motion at p. 8.
10
FED. R. CIV. P. 56(a).
11
Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007) (internal quotation marks
and citation omitted).
6

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movant.12 As a result, [o]nly disputes over facts that might affect the outcome of the suit under
the governing laws will properly preclude the entry of summary judgment.13
In a motion for summary judgment, the movant bears the initial burden of showing the
absence of a genuine issue of material fact.14 In this showing, bald assertions of ultimate fact
are insufficient.15 Absent a sufficient showing, summary judgment is not warranted, the analysis
is ended, and the non-movant need not defend the motion.16 On the other hand, the movant is
freed from this initial burden on matters for which the non-movant would bear the burden of
proof at trial; in that event, the movants burden is reduced to merely pointing to the absence of
evidence.17 If the movant meets its initial burden, the non-movant must then demonstrate the
existence of a genuine issue of material fact.18 This demonstration must specifically indicate
facts and their significance,19 and cannot consist solely of conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.20
In conducting its analysis, the Court considers evidence from the entire record and views
that evidence in the light most favorable to the non-movant.21 Thus, although the Court refrains
from determinations of credibility and evidentiary weight, the Court nonetheless gives credence
to all evidence favoring the non-movant; on the other hand, regarding evidence that favors the

12

Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006) (citation omitted).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
14
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
15
Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir. 1978) (citation omitted).
16
See Celotex Corp., 477 U.S. at 323.
17
See id. at 323-25; see also Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995).
18
See id.
19
See Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
20
U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008) (citing TIG Ins. Co. v. Sedgwick James
of Wash., 276 F.3d 754, 759 (5th Cir. 2002)).
21
See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000) (citations omitted).
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movant, the Court gives credence to evidence that is uncontradicted and unimpeachable, but
disregards evidence the jury is not required to believe.22
Rather than combing through the record on its own, the Court looks to the motion for
summary judgment and response to present the evidence for consideration.23 Parties may cite to
any part of the record, or bring evidence in the motion and response.24 By either method, parties
need not proffer evidence in a form admissible at trial,25 but must proffer evidence substantively
admissible at trial.26
III.

Discussion

Standing
As a preliminary matter, the Court notes that the alleged enforcement of the ordinance as
against Plaintiff is not before the Court at this time. The sole issue before the Court is whether
the statutes themselves are unconstitutional on their face. When a statute is challenged on its
face, the facts of the challenging party's case are irrelevant; the court is asked to determine the
constitutionality of the statute as written. Nevertheless, the party's claim must meet the
constitutional requirements of a case or controversy in order to be justiciable.27 When
deciding if a case or controversy exists, the Supreme Court has been most willing to allow
anticipatory claims by plaintiffs who allege that they wish to violate the challenged statute
because of their active membership in some profession or organization that has goals apart from
the extirpation of unconstitutional measures.28 Here, Plaintiff is a member of an organization

22

Id.
See FED.R.CIV. P. 56(e).
24
See FED. R. CIV. P. 56(c).
25
See Celotex Corp., 477 U.S. at 324 (We do not mean that the nonmoving party must produce evidence in a form
that would be admissible at trial in order to avoid summary judgment.).
26
See Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) ([T]he evidence proffered by the plaintiff to satisfy
his burden of proof must be competent and admissible at trial).
27
Beckerman v. City of Tupelo, Miss., 664 F.2d 502, 506 (5th Cir. 1981).
28
Int'l Soc. for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 819 (5th Cir. 1979).
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that conducts demonstrations or protests to further its attempt to help[] workers organize to
defend against labor abuses . . . .29 Plaintiff alleges that the statutes in question do not leave
open any alternative channels of expression for workers to exercise their rights during a protest
in the City of McAllen.30 Thus, the Court finds Plaintiff has standing to make his challenge.
Text of Statutes in Question
Plaintiff alleges that Sections 46-143(4) and 46-145 of the McAllen code are
unconstitutionally overbroad on their face. Defendant denies that the ordinance is
unconstitutionally overbroad and claims that it is content neutral, narrowly tailored, and serves a
significant governmental interest. However, there is no dispute between the parties over what
actual words are used in the statute.
The first statute in question, Section 46-143(4), states [t]he doing of any of the following
acts within the city is hereby declared to be the creation of a disturbance and a violation of this
article . . . [s]creaming, shouting, hollering or yelling.31 Disturbance is defined in Section 46141 as:
such noise [meaning sound of any kind] as offends the hearing sensibilities or the
peace, rest, quiet and response of an ordinary, normal person lawfully in the
vicinity of the origin of the noise, provided that such noise is not reasonably
necessary to the enjoyment and protection of life and indispensable to the
progress of society in the city.32

The second statue in question, Section 46-145, states:

It shall be unlawful for any person to use or operate, or cause to be used or
operated, any mechanical or electrical device, machine, apparatus or instrument to
intensify or to amplify or to reproduce the human voice, or to produce, reproduce,
intensify or amplify any other sound, in any building or on any premises in the
city, whereby the sound therefrom is cast directly upon the public streets or
29

Dkt. No. 20 at p. 3.
Complaint at 51.
31
McAllen, Tex., Code of Ordinances, ch. 46, art. V, 46-143(4).
32
McAllen, Tex., Code of Ordinances, ch. 46, art. V, 46-141.
30

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places, or where such device is maintained and operated for advertising purposes,
or for the purpose of attracting the attention of the passing public, or which is so
placed or operated that the sounds coming therefrom can be heard to the
annoyance or inconvenience of travelers upon any street or public place, or of
persons in neighboring premises.33

Overbreadth Legal Standard

The Fifth Circuit has held that [i]f, at the expense of First Amendment freedoms, a
statute reaches more broadly than is reasonably necessary to protect legitimate state interests, a
court may forbid its enforcement.34 Furthermore, [t]he First Amendment protects the use of
sound equipment as a form of expression.35 However, [s]tate and local governments have a
legitimate interest in regulating the use of sound equipment to accommodate the needs of the
community . . . .36 The Supreme Court has held that in order to be constitutional, a regulation
of the time, place, or manner of protected speech must be narrowly tailored to serve the
government's legitimate, content-neutral interests . . . .37 The regulation must also leave open
ample alternative channels of communication.38 Additionally, the government bears the burden
of justifying its regulation as narrowly tailored.39 Accordingly, the Court must focus on whether
the statutes at issue are (1) content neutral, (2) are narrowly tailored to further a legitimate state
interest, and (3) leave open ample alternative channels of communication.
Content-Neutral Analysis
In the instant case, the Court believes Sections 46-143(4) and 46-145 do not regulate any
specific type of speech. The principal inquiry in determining content neutrality, in speech cases
33

McAllen, Tex., Code of Ordinances, ch. 46, art. V, 46-145.

Reeves v. McConn, 631 F.2d 377, 383 (5th Cir. 1980).
35
Beckerman 664 F.2d at 515 (citing Saia v. New York, 334 U.S. 558 (1948)).
36
Beckerman, 664 F.2d at 515.
37
Ward v. Rock Against Racism, 492 U.S. 781, 798-799 (1989) (quoting United States v. Albertini, 472 U.S. 675,
689, (1985)).
38
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).
39
Lionhart v. Foster, 100 F. Supp. 2d 383, 387 (E.D. La. 1999) (citing United States v. Doe, 968 F.2d 86, 88
(D.C.Cir.1992)).
34

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generally and in time, place, or manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the message it conveys.40 Such
regulation is considered content neutral if it is justified without reference to the content of the
regulated speech.41 Based on a plain reading of the statutes in question, the Court believes it is
clear that Defendant wished to prevent any high volume sounds within the city limits which
might be considered a nuisance to an ordinary person lawfully in the same area as the sound; a
plain reading does not indicate that Defendant was worried about the particular subject matter of
any sound being amplified either vocally or by machine. Therefore, the Court finds Sections 46143(4) and 46-145 are both facially content neutral. Accordingly, the Courts inquiry must next
turn to the question of whether Sections 46-143(4) and 46-145 are narrowly tailored to further a
legitimate state interest and leave open ample alternative channels of communication .
Narrowly Tailored Analysis discussed
In determining whether Sections 46-143(4) and 46-145 are narrowly tailored, the Court
must decide whether the type of expression being regulated is basically incompatible with the
normal activity of a particular place at a particular time.42 Additionally, Defendant has to make
some effort to tailor its ordinance in relation to place as well as time.43 The question before the
Court then is this; are verbal acts of screaming, shouting, hollering, and yelling, or the act of
amplifying sound via machine onto a public street, incompatible with normal activity anywhere
within the city limits, at all times? The Court believes the answer is no.
In addressing Section 46-143(4), Defendant argues that when Section 46-143(4) is read in
the proper context and in conjunction with Section 46-141, it is clear that the city is not banning

40

Ward, 492 U.S. at 791.

Clark v. Community for Creative NonViolence, 468 U.S. 288, 293 (1984).
42
Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
43
Reeves 631 F.2d at 384.
41

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screaming, shouting, hollering or yelling within the city limits, but rather only regulat[ing] such
activity when it is conducted in a manner which creates a disturbance by offending the hearing
sensibilities or the peace, rest, quiet and repose of an ordinary normal person lawfully in the
vicinity of the noise.44 The Court finds this argument unconvincing. A plain reading of Section
46-143(4) does not, as Defendant contends, indicate that the act of screaming, shouting, hollering
or yelling within the city limits creates a disturbance and violates the statute if the act offends an
ordinary normal person. To the contrary, Section 46-143(4) very clearly indicates that the sole
act of screaming, shouting, hollering or yelling within the city limits by itself creates a
disturbance and thus violates the statute.
Clearly, Defendant is correct when it asserts that the City has a substantial governmental
interest in protecting . . . citizens from excessive noise . . . .45 However, as noted earlier,
Defendant has to make at least some attempt to narrowly tailor its ordinance in relation to time
and place, as well as leave open ample alternative channels of communication. An absolute
prohibition on screaming, shouting, hollering, or yelling at any time of day, anywhere within the
city limits, can hardly be construed as an effort on behalf of Defendant to narrowly tailor its
ordinance in relation to place and time. Therefore, the Court finds Section 46-143(4)
unconstitutionally overbroad.
Similarly, Section 46-145 appears to be lacking the necessary requisite effort on behalf of
Defendant. As previously mentioned, Section 46-145 makes it unlawful for any person in the city
limits to use . . . or cause to be used . . . any . . . device . . . to amplify . . . any . . . sound . . . on
any premises in the city, where[] the sound . . . is cast directly upon . . . public streets or places,

44
45

Response at p. 4.
Id.

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or . . . heard to the annoyance or inconvenience of travelers upon any . . . public place . . . .46 In
defense of Section 46-145, Defendant argues that it has a substantial interest in preventing . . .
annoyance and inconvenience of citizens from excessive noise47 and that [o]n each of the
occasions about which Plaintiff makes complaint . . . the response by the City was in response to
complaints by citizens . . . being annoyed and inconvenienced by the amplified sounds.48
Once again, the Court agrees with Defendant that it has a substantial interest in protecting
citizens from excessive noise. However, in Reeves v. McConn, the Fifth Circuit clarified that the
legitimate interest of the state in protecting a citizens right to be free from certain sounds is
greatly diminished . . . when the citizen is outside his home. In the public spaces of a city one is
often required to divert his attention or his path rather than ask the state to silence . . . reasonably
amplified speech.49 Furthermore, the Reeves courts concluded that:
[A] city may reasonably prohibit kinds or degrees of sound amplification that are
clearly incompatible with the normal activity of certain locations at certain times.
But the city may not broadly prohibit reasonably amplified speech merely because
of an undifferentiated fear that disruption might sometimes result. When First
Amendment freedoms are involved, the city may protect its legitimate interests
only with precision.50
The Court believes Defendant lacks the required necessary precision because it has failed
to make any attempt to narrowly tailor its ordinance in relation to time and place and leave open
ample alternative channels of communication. An absolute prohibition on the use of any device
which may be used to amplify sound directly onto a public street to the annoyance of travelers at
any time and in any place within the city limits cannot be considered an attempt by Defendant to

46

McAllen, Tex., Code of Ordinances, ch. 46, art. V, 46-145.

Response at p. 3.
48
Id.
49
Reeves, 631 F.2d at 384 (citing Erznoznick v. City of Jacksonville, 422 U.S. 205, (1975)).
50
Id. at 388 (citing Grayned, 408 U.S. at 116).
47

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narrowly tailor its regulation. Therefore, the Court finds Section 46-145 unconstitutionally
overbroad.
Vagueness Legal Standard
In the instant motion, Plaintiff alleges that certain sections of Section 46-141 are void for
vagueness and therefore unconstitutional. Under the due process clause of the Fourteenth
Amendment, a statute will be held void for vagueness if the terms of a statute are so indefinite
that men of common intelligence must necessarily guess at its meaning and differ as to its
application.51 Courts must apply this standard even more strictly to statutes that inhibit free
speech because of the value our society places on the free dissemination of ideas.52 However, in
the context of noise ordinances, a regulation will not be considered vague if an objective
standard is used to enforce it.53
Vagueness Analysis
As previously noted, Disturbance is defined in Section 46-141. The first clause states
that a Disturbance is defined as any sound that offends the hearing sensibilities or the peace,
rest, quiet and response of an ordinary, normal person lawfully in the vicinity of the origin of the
noise . . . .54 The second clause explains there is a limitation to the first clause by stating
provided that such noise is not reasonably necessary to the enjoyment and protection of life and
indispensable to the progress of society in the city.55 Plaintiff argues that the limitation in the
second clause is unconstitutionally vague because it contains a subjective standard that requires
people of ordinary intelligence to guess at its meaning.56 Specifically, Plaintiff argues that

51

Id. at 383 (quoting Connally v. General Construction Co., 269 U.S. 385, 391 (1926)).
Id. at 383 (citing Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 620 (1976)).
53
See Munn v. City of Ocean Springs, Miss., 763 F.3d 437, 442 (5th Cir. 2014).
54
McAllen, Tex., Code of Ordinances, ch. 46, art. V, 46-141.
55
Id.
56
Reply at p. 6.
52

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[p]eople of ordinary intelligence must necessarily guess at the meaning of what is necessary to
the enjoyment and protection of life and particularly what is indispensable to the progress of
society in the city.57 Defendant argues that the exception at issue is acceptable because the
objective ordinary normal person standard to which the entire disturbance definition relates
fulfills the [required] level of certainty . . . in the noise ordinance context . . . .58
In Munn v. City of Ocean Springs, Mississippi, the Fifth Circuit held that an ordinance
prohibiting unreasonable noise in the city limits that annoyed reasonable persons was not void
for vagueness. The Court in Munn clarified that the words reasonable person in the text of the
statute imposed an acceptable objective standard that put people on notice of how the regulation
would be enforcedi.e. the regulation would be enforced when the noise annoyed a reasonable
person.59 Similarly, in the instant case, in order for the Court to find that Section 46-141 is not
void for vagueness, the Court must determine whether Section 46-141 proffers an objective
standard by which a violation will be measured.
The Court believes the phrase ordinary, normal person used in the first clause of
Section 46-141, coupled with the term reasonably necessary in the second clause, satisfactorily
levies an objective standard. While the phrases reasonable person and ordinary person are
not completely indistinguishable from one another, the Court nevertheless believes the phrases
are sufficiently similar to impute an objective standard in Section 46-141.
Black Law Dictionary defines a reasonable person as:
A hypothetical person used as a legal standard . . . specif., a person who exercises
the degree of attention, knowledge, intelligence, and judgment that society
requires of its members for the protection of their own and of others' interests. . . .
Also termed reasonable man60. . . . The reasonable man connotes a person whose
57

Id.
Response at p. 5.
59
Munn, 763 F.3d at 442.
60
Reasonable Person, Black's Law Dictionary (10th ed. 2014).
58

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notions and standards of behaviour and responsibility correspond with those

generally obtained among ordinary people in our society . . . .61

Hence, the Court finds the ordinary person standard capable of imposing an objective standard
in the same way the phrase reasonable person did in Munni.e. Section 46-141 puts citizens
of McAllen on notice that the regulation will be enforced when the sound offends the hearing
sensibilities of an ordinary person.
Additionally, the Court believes that the language used in the second clause of Section
46-141 provides a further objective limitation on the definition of disturbance. The Court notes
that the first clauses ordinary person standard is correctly viewed from the objective
perspective of an ordinary person whose hearing sensibilities have been offended. Similarly, a
plain reading of the second clause illustrates the ordinance must be viewed from the objective
perspective of a reasonable person. Although the second clause does not use the term
reasonable person, the second clause does make clear that the ordinance does not apply if the
sound produced meets the objective standard of being reasonably necessary.62 Thus, if the
ordinary person believes the sound produced to be reasonably necessary to the enjoyment and
protection of life and indispensable to the progress of society in the city, it is not defined as a
disturbance. Therefore, the Court holds Section 46-141 is not unconstitutionally vague.
IV.

Conclusion

For the foregoing reasons, the Court GRANTS in part Plaintiffs motion for partial
summary judgment and DECLARES that Chapter 46, Article V, Sections 46-143(4) and 46-145
of the McAllen Code of Ordinances are facially unconstitutional restrictions on the freedom of
61

Id. (quoting R.F.V. Heuston, Salmond on the Law of Torts 56 (17th ed. 1977) (emphasis added)).
If the statute used only the terms necessary to the enjoyment . . . as quoted by Plaintiff, Plaintiffs argument
might have merit. However, Plaintiff mischaracterizes the statute by leaving out the adverb reasonably, a
significant modifier of necessary. Plaintiff is cautioned that zealous advocacy does not justify
mischaracterizations.
62

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speech because they are unconstitutionally overbroad. The Court DENIES Plaintiffs motion as
to Chapter 46, Article V, Section 46-141.
IT IS SO ORDERED.
DONE this 2nd day of October, 2015, in McAllen, Texas.

_____________________________
Micaela Alvarez
UNITED STATES DISTRICT JUDGE

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