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Lozano v. City of Hazleton

October 31, 2006

PEDRO LOZANO, CARLOS FUENTES, HUMBERTO HERNANDEZ, ROSA LECHUGA, JOSE LUIS LECHUGA, JOHN DOES 1-4, JANE DOES 1-2, JOHN DOE 5, A MINOR, BY HIS PARENTS, JOHN DOES 6, A MINOR, BY HIS PARENTS, JANE DOE 3, A MINOR, BY HER PARENTS, JANE DOE 4, A MINOR, BY HER PARENTS, BRENDA LEE MIELES, CASA DOMINICA OF HAZLETON, INC., HAZLETON HISPANIC BUSINESS ASSOCIATION, AND PENNSYLVANIA STATEWIDE LATINO COALITION, PLAINTIFFS
v.
CITY OF HAZLETON, DEFENDANT



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the Court is plaintiffs' motion for a temporary restraining order.*fn1

(Doc. 30). The matter has been briefed and argued and is ripe for disposition.

Background

In the instant motion, the plaintiffs challenge the legality of two ordinances enacted in Hazleton, Pennsylvania. The first, Ordinance 2006-13 requires all occupants of rental units (as those terms are defined in the ordinance) to obtain an "occupancy permit." In order to obtain such a permit, an applicant must provide, inter alia, "proper identification showing proof of legal citizenship and/or residency." (Pl. Ex. A, Ordinance 2006-13, Section 7(b)1(g)). The second Ordinance is entitled the Illegal Immigration Relief Act Ordinance, Ordinance 2006-18. This ordinance is aimed at preventing businesses from employing or harboring illegal aliens. (Pl. Ex. B, Ordinance 2006-18). The instant temporary restraining order seeks to enjoin the enforcement of these ordinances, which is scheduled to begin on November 1, 2006.

Discussion

The Third Circuit Court of Appeals has outlined four factors that a court ruling on a motion for a preliminary injunction must consider: (1) whether the movant will be irreparably injured by denial of the relief; (2) whether granting preliminary relief will result in even greater harm to the nonmoving party; (3)whether granting the preliminary relief will be in the public interest; and (4) whether the movant has shown a reasonable probability of success on the merits. Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir.2001). These same factors are used to determine a motion for a temporary restraining order. Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D.Pa.1994). These factors merely "structure the inquiry" and no one element will necessarily determine the outcome. The court must engage in a delicate balancing of all the elements, and attempt to minimize the probable harm to legally protected interests between the time of the preliminary injunction to the final hearing on the merits. Constructors Association of Western Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir.1978). The movant bears the burden of establishing these elements. Adams v. Freedorm Forge Corp., 204 F.3d 475, 486 (3d Cir. 2000).

We will address each of these issues seriatim 1) Irreparable injury

The first factor to be weighed is whether the plaintiffs will be irreparably injured if the temporary restraining order is not granted. Crissman, 239 F.3d at 364. Usually, a preliminary injunction will be denied if it appears that the applicant has an adequate alternative remedy in the form of money damages. A.L.K. Corporation v. Columbia Pictures Indus., Inc., 440 F.2d 761 (3d Cir.1971).

After a careful review, the threat of irreparable injury is present in the instant case. For example, Plaintiff Jane Doe 1 risks being evicted from her apartment along with her two young children, although not an "illegal alien" under the laws of the United States. (Am. Compl. ¶ 34 - 39). Plaintiffs John Does 5 - 6 and Jane Does 3- 4 are minor school-age children residing with their parents in Hazleton, who may be forced to leave Hazleton and their schooling if the ordinances are enforced. (Am. Compl. 40-41). Plaintiff Brenda Lee Mieles is a United States citizen who may be evicted from her residence because of her inability to establish her citizenship. (Am. Compl. ¶ 42 - 43). Plaintiffs Rosa and Jose Luis Lechuga have suffered and continue to suffer a great loss of business in their store and restaurant located in Hazleton, which they blame on the ordinances. (Am. Compl. ¶ 15 - 19). A monetary price cannot be placed on such matters as plaintiffs' housing, livelihood and education. Therefore, monetary damages would not be sufficient to make the plaintiffs whole, and the plaintiffs' risk irreparable injury if the temporary restraining order is not granted. We find that this factor weighs heavily in favor of granting the temporary restraining order.

2) Harm to the Non-Moving Party

The second factor used by courts to determine whether to grant injunctive relief is "whether granting preliminary relief will result in even greater harm to the non-moving party" than to the movant. Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). The City argues that the ordinances related to illegal immigration are designed to prevent problems of social disorder and chaos that city leaders connect to the presence of illegal aliens in Hazleton. In the "Findings and Declaration of Purpose" that accompany the Illegal Immigration Relief Act Ordinance, the City contends that "illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services . . . and diminishes our overall quality of life." Ordinance 2006-18 § 2(C). In statements to newspapers, the mayor of Hazleton has asserted that the illegal immigrants have created crime and disorder in the town: "They try to recruit these children into gangs; we're having graffiti sprayed on houses now." Ellen Barry, City Vents Anger at Illegal Immigrants, LOS ANGELES TIMES, July 14, 2006, at A1. The city passed the ordinance, the mayor claims, partly in response to an incident where four illegal Dominican immigrants were arrested in connection with the shooting of a 29-year-old man. Id.

We find that this potential harm to the city is not greater than the harm faced by the plaintiffs from enforcement of the ordinances. Plaintiff has offered, in the form of affidavits, statements of the concrete harm faced by various individuals from the enforcement of the ordinances. Defendant, to the contrary, has offered only assertions that violent crime in Hazleton is a product of illegal immigration and that the city faces higher costs for social services because of the presence of undocumented persons. In a newspaper interview, the Mayor admitted that he had no statistics to support his claims of increased crime related to illegal immigration, nor even any numbers on how many illegals had entered the City.*fn2 Dan Geringer, Bloomberg: U.S. Can't Stem Immigration Tide, PHILADELPHIA DAILY NEWS, July 6, 2006 at 7.

At oral argument, defendant's counsel argued that crime in the City had increased by ten percent between 2004 and 2005, but offered no evidence to connect this increase to the presence of illegal immigrants. Counsel also offered no statistics to demonstrate the number of illegal immigrants living in Hazleton in those years. Compared to the complaints of specific harm offered by the plaintiffs, the City's vague complaints about the presence of illegal immigrants--problems that could be ascribed to a number of factors beyond the presence of people without legal documents and which might not be alleviated by the City's ...


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