From the SelectedWorks of Daniel A. Horwitz March 2, 2017 Dustin Owens Verified Complaint for Injunctive and Declaratory Relief and Exhibits Daniel A. Horwitz Available at: https://works.bepress.com/daniel_horwitz/27/ IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE AT NASHVILLE DUSTIN OWENS, Plaintiff, v. METROPOLITAN NASHVILLE POLICE DEPARTMENT, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. ___________ VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1. The primary question presented in this case is whether the following sticker qualifies as an “obscenity”—a narrow, unprotected category of speech reserved for hardcore pornography—thereby causing it to lose the broad presumption of free-expression protection guaranteed by the First Amendment to the U.S. Constitution: 2. Because this stick-figure cartoon does not come anywhere close to satisfying the applicable constitutional standard for obscenity, the Metropolitan Nashville Police Department should be enjoined from punishing the Plaintiff for displaying it. -1- I. PARTIES 3. The Plaintiff, Mr. Dustin Owens (“Mr. Owens”), is a citizen of Tennessee who works and drives in Davidson County, Tennessee. 4. The Defendant, the Metropolitan Nashville Police Department (the “MNPD”), is the municipal police department for Nashville and Davidson County, Tennessee. II. JURISDICTION, AUTHORITY, AND VENUE 5. This Court has jurisdiction over this action pursuant to the Tennessee Declaratory Judgment Act, Tenn. Code Ann. § 29-14-102, and 42 U.S.C. § 1983. 6. This Court is vested with the authority to issue a declaratory judgment and injunction with the force and effect of a final decree pursuant to Tenn. Code Ann. § 2914-102(c), Tenn. Code Ann. § 29-1-106, and 42 U.S.C. § 1983. 7. As the county where the causes of action giving rise to Plaintiff’s Complaint arose, venue is proper in Davidson County pursuant to Tenn. Code Ann. § 20-4-101(a). III. FACTUAL ALLEGATIONS 8. On February 10, 2017, Mr. Owens was driving on or around Briley Parkway in Davidson County, Tennessee, when he was pulled over and cited by an officer of the MNPD for displaying an “obscene bumper sticker” in violation of Tenn. Code Ann. § 558-187. Mr. Owens’ citation from this incident is attached hereto as Exhibit A. A photograph of the sticker at issue (hereinafter, the “stick-figure cartoon”) exactly as it appears on Mr. Owens’ truck is attached hereto as Exhibit B. -2- 9. After ticketing Mr. Owens, the arresting officer ordered him to remove his stick-figure cartoon from his truck and demonstrate full compliance with his order within forty-five days (by March 27, 2017). To date, Mr. Owens has not complied. 10. Consequently, Mr. Owens is currently living under the pain of a pending censorship order from the MNPD, and he is subject to being punished and prosecuted under penalty of law if he does not comply with it. 11. Based on the MNPD’s conclusion that his stick-figure cartoon is constitutionally obscene, Mr. Owens is currently subject to being seized and cited whenever and wherever he drives in Davidson County. As a consequence, Mr. Owens has filed the instant action for the purpose of obtaining both a declaratory judgment that his stick-figure cartoon is not constitutionally obscene and an injunction prohibiting the MNPD from punishing him for displaying it. IV. CAUSES OF ACTION 1. As-Applied Violation of Mr. Owens’ Rights Under the First and Fourteenth Amendments 12. The Plaintiff reincorporates and realleges the foregoing allegations as if fully set forth herein. 13. As a matter of law, Mr. Owens’ sticker is not constitutionally obscene. 14. The average person applying contemporary community standards would not find that Mr. Owens’ stick-figure cartoon appeals predominantly to the prurient interest in sex. 15. Mr. Owens’ stick-figure cartoon does not depict or describe, in a patently offensive way, sexual conduct as defined by Tennessee law. -3- 16. Taken as whole, Mr. Owens’ stick-figure cartoon does not lack serious literary, artistic, political, or scientific value. 17. Consequently, as it has been applied to Mr. Owens, Tenn. Code Ann. § 55- 8-187 violates Mr. Owens’ First Amendment rights to freedom of speech and expression, incorporated against the State of Tennessee pursuant to the Fourteenth Amendment. 2. Overbreadth 18. The Plaintiff reincorporates and realleges the foregoing allegations as if fully set forth herein. 19. In the alternative, Tenn. Code Ann. § 55-8-187 is unconstitutionally overbroad. 20. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is also prohibited or chilled in the process. 21. Tenn. Code Ann. § 55-8-187 operates to censor more speech than is constitutionally permissible. 22. The U.S. Supreme Court has held that speech is obscene and does not enjoy constitutional protection if the Government can establish all three of the following factors: that the speech being censored, when taken as a whole, [1] “appeals to the prurient interest [in sex], [2] is patently offensive in light of community standards, and [3] lacks serious literary, artistic, political, or scientific value.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 235 (2002) (citing Miller v. California, 413 U.S. 15, 24 (1973)). 23. These three factors must each be proven independently for speech to be lawfully categorized as obscene. As such, while satisfying the “patently offensive” prong -4- of the Miller test is necessary to demonstrate that speech is obscene, it is insufficient to justify censorship on its own. 24. Tenn. Code Ann. § 55-8-187, however, renders illegal the display of both “obscene” bumper stickers and “patently offensive” bumper stickers. See Tenn. Code Ann. § 55-8-187. Consequently, Tenn. Code Ann. § 55-8-187 treats “patently offensive” materials as a freestanding category of speech that may be prohibited without regard to the two additional factors set forth in Miller. As a result, Tenn. Code Ann. § 55-8-187 is unconstitutionally overbroad. V. CLAIMS FOR RELIEF WHEREFORE, the Plaintiff respectfully requests that this Court: 1. Issue a judgment declaring that, as applied to Mr. Owens, Tenn. Code Ann. § 55-8-187 violates his First Amendment rights to freedom of speech and expression. 2. In the alternative, issue a judgment declaring that Tenn. Code Ann. § 55-8- 187 is unconstitutionally overbroad. 3. Issue a temporary injunction, and, thereafter, a permanent injunction prohibiting the MNPD from seizing, citing, or in any way prohibiting Mr. Owens from displaying his stick-figure cartoon. 4. Grant Mr. Owens’ reasonable costs and attorneys’ fees pursuant to 42 U.S.C. § 1988(b). 5. Grant Mr. Owens any and all other relief to which it appears he is entitled. -5- Respectfully submitted, By: __________________________ Daniel A. Horwitz, BPR #032176 1803 Broadway, Suite #531 Nashville, TN 37203 daniel.a.horwitz@gmail.com (615) 739-2888 David L. Hudson, Jr., BPR #016742 1207 18th Ave S. Nashville, TN 37212 david.hudson@law.vanderbilt.edu (615) 727-1600 Counsel for Plaintiff Dustin Owens -6- VERIFICATION I, Daniel A. Horwitz, after having been duly sworn according to law, hereby state that I have made an independent investigation into the averments stated herein, and that the facts, statements, and exhibits contained in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. Pursuant to Tenn. R. Civ. P. 72, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. By: -7- __________________________ Daniel A. Horwitz, BPR #032176 1803 Broadway, Suite #531 Nashville, TN 37203 daniel.a.horwitz@gmail.com (615) 739-2888 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of March, 2017, a copy of the foregoing was served via USPS certified mail, postage prepaid, and/or hand-delivered to the following: Metro Nashville Police Department c/o Metropolitan Department of Law Metro Courthouse, Suite 108 P.O. Box 196300 Nashville, TN 37219-6300 Attorney General and Reporter for the State of Tennessee Herbert Slatery III Office of the Attorney General and Reporter P.O. Box 20207 Nashville, TN 37202-0207 By: -8- __________________________ Daniel A. Horwitz, Esq. Exhibit A For ADA accommodations. contact 615-352-5199 I RECORD I STATE OF TENNESSEE COUNTY OF DAVIDSON In The Metropolitan General Sessions Court: SUMMONS JUSTICE AFL BIFICH BLDG 408 2ND AVE NASHVILLE. TN 37201 II OF OFFENSES - ,i The undersigned certifies to have just and reasonable grounds to believe, and does believe, that: $535152 Upon the issuance of this citation you should receive a Davidson County Traf?c Court lntormation Sheet explaining how to respond to this citation. If you did not receive one or have lost it. it is your responsibility to call I615) 852-5222 or visit to obtain a copy. I hereby acknowledge receipt of a copyr of this citation. I also waive formal issuance and service ol a warrant upon me. liunderstand that I must respond to this citation with a designated form of action within 45 days from the issuance date of this citation. Failure to do so will resul causing suspension 0f driver's license and issuance of execution. DEFEN SIG NATLI Ft tin a Default Judgmenl i I. 3.ADMISSION OF GUILT 1111111? REV 0101?2012 0 fl? 11? :2 ZI: 2322 I 1 I :2ch I DAY OF WEEK DATE MONTH YEAR AM. PM. LAST 2' 1 2 . NAME 11/ If} f; I FIRST .. .2.- ?2 110003. NAME In?25 2?22?2522;: ST CODE .32 4 I: 3- ?35; COMMERCIAL oven 25.000182 El ACCIDENT ?a CLASS DI: I VEHICLE El 16+ PASSENGER El HAZARDOUS MATERIAL I OPERATOR ?255225 ~25 31222-212} . COLE 222D I OPERATOR _n I - 2. - I LICENSE 7STATE MONTH DAY YEAH AGE SEX RAOE I VEHICLE Ila-.12 2,2,2; 2. 5:2 I YEAR MAKE MODEL BODY TYPE COLOR I VEHICLE ,ij?f .5 1? STATE r'f 1' 7-1! LIST OINNER OF CAR IF DIFFERENT THAN . UPON A OTHER TION NAMELY "5NEAR DID UNLAWFULLY COMMIT THE FOLLOWING OFFENSES IN OF THE METRO CODE. I ALL TOA OFFENSES HEREIN ARE DECLARED To BE MUNICIPAL PURSUANT To NIHRO CODE 128.150 A KPH KPH ZONE RADAR I SPEED RESTRICTION MPH IN MPH ZONE PACED I CI MCL 12.20.10 UMCL 12.20.20 CI MCL 12.20.30 CI MCL 12.20.70 LASER 3 MOL 12.68.1802 MCL 12.68.17?0 MCL 12.24.40 MCL 12.12.110 TCA 55-8-1303 I REOKLESS OARELESS RAN STOP SEAT BELT I DRIVING SIGN LAW I TCA 55-42108 MCL 12.8.90 TCA 55-32102 MCL 12.32.30 TCA 55082188 i REGISTRATION UNLAWFUL USE DFIIVING LIGHTS FIECIUIFIED HOV i CERTIFICATE OF LICENSE UNFIEGISTERED ON VEHICLE . NOT IN VEHICLE PLATE VEHICLE TCA 55-51-132 1 mughg?z?g?so TCA 55-50?351 35225505923293 MCL12.12.90 I YIELD EMRGENCY LICENSE RAN FIED . ovER NOT ON PERSON SIGNAL LIGHT 8 TCA 55-12-139 Tm, x; . 1 1011105030 00025.1: an? IRAS. 2? 012?? 2 132- ;52 2.1.22 2.2 A I DWYLISHT SNOWIICE RELATED 2 I :1 RAININS DARKNESS I: WET EBSBPEQINT 05323?9; I - I AT GEN PHOSECUTOH S?ngmx UFIE EMF 0 EE A CY P9 . OFFICER (PRINT) OFFICER RANK EMPLOYEE ?a ASSIGNED - . Compliance Data For Office Use Only I I Must respond within 45 days of issuance date. Month Date Year Exhibit