Argued: October 28, 2013.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12-cv-1402-WTL-DML--William T. Lawrence, Judge.
For ERIC SMITH, Plaintiff - Appellant: Kenneth J. Falk, Attorney, INDIANA CIVIL LIBERTIES UNION, Indianapolis, IN.
For EXECUTIVE DIRECTOR OF THE INDIANA WAR MEMORIALS COMMISSION, OFFICER HALL, Indiana State Police Officer, in his individual capacity, OFFICER SHARP, Indiana State Police Officer, in his individual capacity, Defendants - Appellees: Frances Barrow, Attorney, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN.
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
The Indiana War Memorials Commission supervises the
Soldiers and Sailors Monument at Monument Circle in Indianapolis, as well as
several other monuments in downtown Indianapolis. A Commission policy requires
even small groups to obtain a permit before gathering on Commission properties.
Plaintiff Eric Smith and his young son were expelled from Monument Circle for
protesting a proposed United Nations arms treaty without a permit. Smith claims
here that the Commission's permit policy violates the First Amendment. He
appeals from the district court's denial of his motion for a preliminary
injunction against the policy's enforcement. The defendants say little about the
merits but argue that his appeal is moot because the permit policy has changed
since the district court denied the motion. We conclude, however, that the new
policy retains the problematic features of the old, so Smith's appeal is not
moot. Because we also conclude that Smith has met the requirements for obtaining
a preliminary injunction, we reverse the judgment of the district court and
remand the case with instructions to enter an appropriate preliminary
I. Factual and Procedural Background
A. Smith's Protest
Smith feared in the summer of 2012 that the United States would sign the Arms Trade Treaty, a treaty that would require countries to monitor international sales of conventional arms and ensure that arms
embargoes are enforced with the goal of preventing exported weapons from falling into the hands of terrorist groups or other abusers of human rights. See http://www.un.org/disarmament/ATT/ (visited Feb. 3, 2014) for a description of the treaty and its full text. The treaty has been criticized by some nations for eroding national sovereignty and by some private organizations for undermining individual rights to keep and bear arms. The U.S. has signed the treaty but has not yet ratified it. See http://disarmament.un.org/treaties/s/ unitedstatesofamerica (visited Feb. 3, 2014). Smith believes that the Arms Trade Treaty would violate the U.S. Constitution by infringing the right to bear arms. To register his disapproval and raise ...