Cozy Inn, Incorporated et al v. Salina, Kansas, City of

1
In the United States District Court
for the District of Kansas
_____________
Case No. 24-cv-01027-TC
_____________
COZY INN, INCORPORATED, ET AL.,
Plaintiffs
v.
CITY OF SALINA, KANSAS,
Defendant
_____________
MEMORANDUM AND ORDER
Plaintiffs Cozy Inn, Incorporated and its owner Stephen Howard
sued the City of Salina, Kansas for constitutional violations after the
City stopped Howard from painting a display on the side of the build-
ing that housed his restaurant. Doc. 16; see also 42 U.S.C. § 1983. All
parties moved for summary judgment, Docs. 104 & 106, and to ex-
clude the other’s expert testimony, Docs. 97 & 98. For the following
reasons, each party’s motion for summary judgment is granted in part
and denied in part, and each party’s motion to exclude expert testi-
mony is denied.
I
A
Each motion has a different standard that governs resolution. The
following describes each applicable standard.
1. As noted, the parties challenge the admissibility of each other’s
experts. The admissibility of expert testimony is guided by Federal Rule
of Evidence 702. Roe v. FCA US LLC, 42 F.4th 1175, 1180 (10th Cir.
2022) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597
(1993)). To fulfill its gatekeeping role, a trial court must ensure that the
expert is qualified and that his or her testimony is both reliable and
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relevant. Id. at 1180–81. “Rule 702 requires an expert witness to be
qualified by ‘knowledge, skill, experience, training, or education.’” Tu-
dor v. Se. Okla. State Univ., 13 F.4th 1019, 1029 (10th Cir. 2021). Testi-
mony is reliable if “it is based on sufficient data, sound methods, and
the facts of the case.” See Roe, 42 F.4th at 1181 (citing Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)). It is relevant if it helps the
trier of fact “to understand the evidence or to determine a fact in is-
sue.” Fed. R. Evid. 702(a); Sanderson v. Wyo. Highway Patrol, 976 F.3d
1164, 1172 (10th Cir. 2020).
2. Both parties contend that they are entitled to summary judg-
ment. Summary judgment is proper under the Federal Rules of Civil
Procedure when the moving party demonstrates “that there is no gen-
uine dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material”
when it is necessary to resolve a claim. Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 670 (10th Cir. 1998). And disputes over material facts are
“genuine” if the competing evidence would permit a reasonable jury
to decide the issue in either party’s favor. Id. Disputes—even hotly
contested ones—over facts that are not essential to the claims are ir-
relevant. Brown v. Perez, 835 F.3d 1223, 1233 (10th Cir. 2016). Indeed,
belaboring such disputes undermines the efficiency Rule 56 seeks to
promote. Adler, 144 F.3d at 670.
At the summary judgment stage, material facts “must be identified
by reference to affidavits, deposition transcripts, or specific exhibits
incorporated therein.” Adler, 144 F.3d at 671; see also D. Kan. R.
56.1(a)–(c). To determine whether a genuine dispute exists, the court
views all evidence, and draws all reasonable inferences, in the light
most favorable to the nonmoving party. See Allen v. Muskogee, Okla.,
119 F.3d 837, 839–40 (10th Cir. 1997). That said, the nonmoving party
cannot create a genuine factual dispute by making allegations that are
purely conclusory, Adler, 144 F.3d at 671–72, 674, or unsupported by
the record. See Scott v. Harris, 550 U.S. 372, 378–81 (2007).
The moving party bears the initial burden of showing the absence
of any genuine issue of material fact and entitlement to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Savant
Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). Once the
moving party meets its burden, the burden shifts to the nonmoving
party to demonstrate that genuine issues as to those dispositive matters
remain for trial. Celotex, 477 U.S. at 324; Savant Homes, 809 F.3d at 1137.
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B
The facts are not in dispute and, as a result, are not construed in
either party’s favor. In particular, the parties either agree completely as
to the material facts or, to the extent there is a disagreement, the pur-
ported dispute is unsupported by the cited record. See Est. of Taylor v.
Salt Lake City, 16 F.4th 744, 758 n.5 (10th Cir. 2021) (noting that the
facts are construed in the light most favorable to the non-movant only
“insofar as there are material disputes of fact”).
1. Plaintiff Stephen Howard owns Cozy Inn, Inc., a local and sto-
ried hamburger restaurant in downtown Salina, Kansas. Doc. 105 at
¶ 1; see also KWCH Staff, Salina’s Cozy Inn Celebrating 100 Years in Busi-
ness, 12News (Mar. 11, 2022, 9:33 PM),
https://www.kwch.com/2022/03/12/salinas-cozy-inn-celebrating-
100-years-business/.1 Howard hired an artist to paint a display on the
exterior wall of the building he owns that houses Cozy Inn. Doc. 105
at ¶¶ 9–12. That wall was previously plain white. Id. at ¶ 9. Howard
intends for the display, once completed, to “include whimsical ham-
burger-esque flying saucers piloted by aliens attacking The Cozy with
blasts of ketchup and mustard.” Id. at ¶ 14. It will read: “Don’t Fear
the Smell!! The Fun is Inside!!” Id. And a painted arrow will point to
the building’s entrance and the ordering window on the exterior wall.
Id. at ¶ 15; Doc. 108 at ¶ 27.
Howard wanted Cozy Inn’s display to be part of the “proliferation
of mural art” in Salina. Doc. 105 at ¶ 6 (quoting Doc. 105-5 at 23). He
described the various murals throughout the city and said he “wanted
to participate in this ‘part of Salina culture.’” Id. at ¶ 10. Many of the
murals Howard describes are seemingly similar to the one Howard
wants to complete at Cozy Inn. See id. at ¶ 129. For example, an aban-
doned grain elevator in Salina features a mural that “depicts children
playing ring-around-the rosie.” Id. at ¶ 122. A baseball training facility
features a large mural on one of its exterior walls that shows baseball
players during a baseball game with phrases like “Outta the Park!” and
“Good Game!” Doc. 105-6 at 5. And a music-related business has a
mural on its exterior walls called “Symphony of Sunflowers” that
1 All references to the parties’ briefs are to the page numbers assigned by
CM/ECF.
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covers the exterior walls with paintings of music notes and sunflowers.
Doc. 105 at ¶ 149.
The artist Howard hired, Colin Benson, began painting the display
on Friday, November 3, 2023. Doc. 105 at ¶ 26. Three days later, how-
ever, Salina officials informed him that they believed the display was
too large to be permitted under the City’s sign code. Doc. 107 at 10,
¶ 20. Then, because the officials determined that the display was a sign
subject to the sign code’s regulations, they told Howard that the display
would be too large to qualify for a sign permit and directed him to
pause work on the display. Id. The display is a sign, according to Salina,
because it “pertains to or references the goods or services for sale.”
Doc. 105 at ¶ 100. In particular, Salina’s position is that the display
“advertises hamburger, chopped onions, pickles, ketchup, and mus-
tard” by depicting those images as part of the display. Doc. 107 at 13–
14, ¶ 40. The parties’ subsequent interactions are detailed more fully
below, but it is first necessary to understand the relevant portions of
the Salina sign code.
2. Salina’s written sign code and the way city officials interpret it
demonstrate that outdoor displays in Salina fall into one of two cate-
gories: murals (or art) and signs. Doc. 105 at ¶ 37 (noting that murals
are not regulated); id. at ¶ 154 (noting that Salina uses the word “art”
as “an imprecise short-hand for ‘not sign’”). Murals are a type of art,
so they are not regulated by Salina’s sign code. Id. at ¶ 37. That means
there are no restrictions on their size or how many may be displayed
on a given property, and it is not necessary to obtain a permit before
painting a mural on the exterior wall of a building. See id. Signs, how-
ever, are subject to regulation. Doc. 107 at 6, ¶ 1. If an outdoor display
is deemed a sign as that term is defined by the sign code, it must com-
ply with the restrictions set forth in the code. Id.
The sign code expressly defines what constitutes a sign. Doc. 107
at 6, ¶ 3; Salina, Kan., Code of Ordinances ch. 42, art. X, § 42-502
(2023) [hereinafter Salina Code]. It provides:
Sign is any writing (including letters, words or numer-
als), pictorial representation (including illustrations or
decorations), emblem (including devices, symbols, or
trademarks), flag, banner, streamer, pennant, string of
lights, or display calculated to attract the attention of
the public, or any other figure of similar character
which:
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(1) Is a structure or any part thereof, or a portable dis-
play, or is attached to, painted on, or in any other
manner represented on a building or other struc-
ture on the ground;
(2) Is used to announce, direct attention to, or adver-
tise; and
(3) Is not located inside a building.
The sign code also defines specific types of signs. Relevant here is
the definition of wall sign: “a sign fastened to or painted on a wall of a
building or structure in such a manner that the wall becomes merely
the supporting structure or forms the background surface, and which
does not project more than twelve (12) inches from such building.”
Doc. 107 at 7–8, ¶ 5; Salina Code § 42-781.
In addition, the sign code expressly sets forth its purposes. Doc.
107 at 6–7, ¶ 4; Salina Code § 42-500. Among others, those purposes
include improving pedestrian and traffic safety, protecting the city’s
aesthetic appearance, preventing property damage, and protecting
property values. Doc. 107 at 6–7, ¶ 4; Salina Code § 42-500(3)–(5).
An individual or business that wants to paint or otherwise con-
struct a sign must first obtain a permit. Doc. 107 at 8, ¶ 6; Salina Code
§ 42-501. Specifically, the sign code provides:
No sign . . . shall be painted, constructed, erected, re-
modeled, relocated or expanded until a zoning certifi-
cate (sign permit) for such sign has been obtained pur-
suant to the procedure set forth in this article . . . . A
zoning certificate (sign permit) shall be either issued or
refused by the zoning administrator within ten (10)
days after the receipt of an application therefore or
within such further period as may be agreed to by the
applicant. No zoning certificate for any sign shall be
issued unless the sign complies with the regulations of
this article.
Doc. 107 at 8, ¶¶ 6–7; Salina Code § 42-501. But, as noted, no permit
need be sought or obtained to construct a mural. Doc. 105 at ¶ 37. The
permit requirement applies only to displays that Salina deems as signs.
Id.
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Displays that meet the definition of sign must comply with certain
size limits, too. Doc. 107 at 8–9, ¶ 9; Salina Code § 42-521(4)(b). The
sign code allows for a certain amount of a property’s surface area to be
devoted to signage, depending on which zone of the city the property
is located. Doc. 107 at 8–9, ¶ 9; Salina Code § 42-521(4)(b). Salina will
not issue a permit for a sign to be painted or otherwise erected if the
sign would be larger than the amount of surface area the property is
authorized to use for signage, whether that be on its own or in combi-
nation with the signs that are already on the property. Doc. 107 at 8,
¶ 7.
3. The aforementioned portions of Salina’s sign code provide the
context for what happened once city officials noticed the display. Ben-
son had started painting the display on a Friday, and by the end of the
weekend, Brad Anderson, a Salina employee, noticed it both on social
media and in person. Doc. 105 at ¶ 28; Doc. 109 at 7, ¶ 28; Doc. 109-
6 at 3–5. He texted two other city officials about the display, informing
them that it was being painted and doubting that it had been approved
through the sign-permit process. Doc. 109-6 at 3–5. It remained “up
in the air” on Sunday whether city officials would consider the display
a regulated sign or an unregulated mural. Doc. 105-13 at 10.
The next day, four city officials met to answer that question. Doc.
105 at ¶ 29. Those individuals included Lauren Driscoll, Salina’s Di-
rector of Community and Development Services, Dean Andrew, the
city’s Planning and Zoning Administrator, and two city planners,
Dustin Herrs and Dustin Michelson. Doc. 105-14 at 10; Doc. 107-5 at
2–3. They looked at a photograph of Benson’s efforts, compared it to
the sign code’s definition, and determined collectively that the display
was a sign that was subject to regulation under the code. Doc. 105 at
¶ 30; Doc. 105-14 at 10–11. They also concluded that the size of the
display likely exceeded the surface area that Cozy Inn had remaining
for signage by nine times the allowed amount, according to calculations
Herrs made using a digital software. Doc. 105 at ¶ 32; Doc. 107-12 at
11–12.
City officials explained their decision to Howard at two separate
meetings in November 2023. Doc. 107 at 10, ¶ 20; id. at 12, ¶ 29. They
reasoned that the display was a sign subject to regulation because “the
hamburgers are basically the same thing [Howard] sells, and therefore,
it would be signage.” Doc. 105 at ¶ 54 (quoting Doc. 105-10 at 10).
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Over the following days and weeks, Salina’s officials provided
more insight into how they determined that the display was a sign.
They provided this information through written memoranda and pub-
lic remarks to the city commissioners, as well as statements to the me-
dia. Doc. 105 at ¶¶ 43, 55, 60, 72. In each remark, the officials focused
on the fact that the display depicted the same food products sold at
Cozy Inn. For example, City Manager Michael Schrage explained in a
memo: “While [the display] might look similar to murals in the down-
town and elsewhere, it contains a commercial message promoting a
business and its product which makes it a wall sign . . . .” Doc. 105-18
at 2; Doc. 105 at ¶ 45; see also Doc. 105-5 at 11 (“And I would reiterate,
it’s all on the basis of a commercial message.”). Director of Commu-
nity and Development Services, Lauren Driscoll, further elaborated on
Schrage’s explanation. Doc. 105 at ¶ 63. In particular, she explained
that the distinction between murals and signs turns on whether the
display depicts images that are “part of a commercial transaction that
would take place in that building or draw you to that building for a
commercial transaction.” Doc. 105-5 at 24. Driscoll illustrated her
point with an example. Doc. 105 at ¶ 65. She said that if a coffee house
painted a display depicting a dove with an olive branch and the word
“peace,” then the display would not be a sign because it would not
depict anything sold inside of the coffee house. Doc. 105-5 at 24; Doc.
105 at ¶¶ 64–66. In contrast, a display at the same coffee house would
be a sign if it depicted “a steaming cup of coffee and a coffee pot on
the side” because “that illustration can suggest that commercial trans-
action.” Doc. 105-5 at 24–25; Doc. 105 at ¶¶ 64–66.
There is a dispute as to whether this distinction between murals
and signs derives from the text of the sign code. The plaintiffs state
that it is an extratextual requirement unsupported by the text of Salina’s
sign code. Doc. 108 at 7–8. In contrast, Salina asserts that it is an in-
terpretation of the word “advertise,” which appears in the definition
of sign. Id. At the time that Driscoll and Schrage made their comments
to the city commissioners and the public, they did not indicate that the
mural-sign distinction is connected to the word “advertise.” Later,
however, Salina produced deposition testimony from various officials
and answers to interrogatories asserting that its determination relied
on the text of the sign code—specifically, the sub-section of the defi-
nition of sign noting that signs “announce, direct attention to, or adver-
tise.” Doc. 107 at 11, 13–14, at ¶¶ 27, 40 (emphasis added). So, accord-
ing to Salina, a display is used to advertise if it “is meant to attract
customers, encourage a commercial transaction . . . [or] call attention
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to a brand, products, or services in order to encourage the purchase of
products or services, in that it pertains to or references the goods or
services for sale.” Doc. 105-24 at 7.
Salina also stated that it concluded the display was a sign because
it “contains a tag line announcing the infamous smells of the Cozy” and
because “it has an arrow directing attention to the building entrance and
ordering window.” Doc. 107 at 11, ¶ 27 (emphasis added). Howard
and Cozy Inn deny that this is how Salina enforced its sign code against
their display. Doc. 108 at 7–8, ¶ 26. They claim that Salina considered
their display a sign solely “because it perceived the . . . content as a
commercial message pertaining to goods sold by The Cozy” contrary
to the sign code’s text. Id.
4. Because city officials determined the display was a sign, they told
Howard to submit a sign-permit application. Doc. 105 at ¶ 103; Doc.
105-14 at 17. Howard submitted an application on November 13,
2023. Doc. 105 at ¶ 104 (citing Doc. 105-25); Doc. 105-14 at 19. Salina
neither granted nor denied Howard’s application. Doc. 106 at ¶ 106.
Instead, it put the application on hold. Id. City Planner Dustin Herrs
believed that city officials had a common understanding with Howard
that a decision would not be made regarding his permit application
until the officials conducted “a comprehensive review of the sign reg-
ulations to see if there were any appropriate text amendments that
could be made to accommodate The Cozy Inn sign.” Doc. 109-16 at
36–37. But Howard did not share this understanding. Doc. 108 at 6,
¶ 23 (citing Doc. 108-20 at ¶ 26). Howard agrees that city officials in-
formed him of his application’s on-hold status, but he disputes that he
agreed to that decision. Id.
In February 2024, three months after submitting his permit appli-
cation, Howard received a letter regarding the application from an-
other city planner, Dustin Michelson. Doc. 105-27. The parties did not
identify any other discussions between Howard and Salina during
those three months. Michelson’s letter stated, in relevant part:
This letter is to inform you that the City is engaging in
a comprehensive review of the City’s sign regulations,
which will include a review of the regulations pertain-
ing to painted wall signs. As a result of this, and due to
the unique nature of the existing signs at The Cozy Inn,
our office will be placing your . . . sign permit applica-
tion on-hold until our review of the sign regulations is
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complete. Once we have completed that code review
process, Staff will then be able to . . . review your sign
permit application in the context of any sign regula-
tions that may be revised during our code review.
Doc. 105-27 at 2. Two weeks after receiving Michelson’s letter, How-
ard and Cozy Inn filed this federal lawsuit against the City of Salina.
Doc. 1.
C
Broadly speaking, Howard and Cozy Inn allege two constitutional
violations.2 Doc. 101 at ¶ 4.a. First, they allege that Salina’s sign code,
along with the unwritten practices Salina uses to enforce it, violates the
First Amendment’s Free Speech Clause on its face and as applied to
the plaintiffs’ display. Id. at ¶ 4.a.i. That claim has two facets. In one,
the plaintiffs assert that Salina’s differentiation between regulated signs
and unregulated murals is a content-based distinction that cannot sur-
vive strict scrutiny. Id. In the other, they allege that Salina’s sign code
and the way Salina applies it created an unconstitutional prior restraint
on their speech. Id. Second, Howard and Cozy Inn allege that Salina’s
sign code is impermissibly vague in violation of the Fourteenth
Amendment’s Due Process Clause. Id. at ¶ 4.a.ii.
Howard and Cozy Inn seek two types of relief. Doc. 101 at ¶ 5.
They first seek a declaratory judgment that Salina’s written sign code,
its unwritten policies and practices, its sign-permit requirement, and its
enforcement mechanisms are an impermissible content-based re-
striction on speech, an unlawful prior restraint on speech, and that they
are unconstitutionally vague. Id. at ¶ 5.a. The plaintiffs alternatively
seek a declaration that the sign policies fail to satisfy intermediate scru-
tiny, assuming they are found to be content-neutral restrictions on
2 Howard and Cozy Inn initially challenged an additional portion of Salina’s
sign regulations. Doc. 92 at 8–9. Specifically, they claimed that Salina’s Busi-
ness Improvement District Code, which required downtown businesses to
obtain approval before making exterior aesthetic changes to their buildings,
was unconstitutional. Id.; Doc. 16 at ¶ 59. While this lawsuit was pending,
however, Salina amended the Business Improvement District Code and de-
termined that, as amended, it did not apply to Howard and Cozy Inn’s pro-
posed display. Doc. 101 at 1. As a result, the parties agreed that the plaintiffs’
claims involving the Business Improvement District Code were rendered
moot by the subsequent amendments to that code. Doc. 101 at ¶ 2.a.xv.
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speech. Id. at ¶ 5.a.iii. And the plaintiffs seek permanent injunctive re-
lief enjoining Salina and its officials from enforcing the entire sign code
and any associated practices against them if they complete their unfin-
ished display.3 Id. at ¶ 5.a.b–c.
There are four pending motions. Docs. 97, 98, 104, 106. Each party
moves to exclude expert testimony. Docs. 97 & 98. Each party also
seeks judgment in their favor on both claims. Docs. 105 & 107. Finally,
Salina argues that Howard and Cozy Inn lack standing to bring their
claims. Doc. 107 at 18–20.
II
Both parties seek summary judgment. As noted below, each mo-
tion for summary judgment is granted in part and denied in part. Spe-
cifically, Howard and Cozy Inn have standing, and they have shown
that they are entitled to judgment as a matter of law on their First
Amendment content-discrimination and prior-restraint claims. But Sa-
lina has shown that its sign ordinance is not impermissibly vague, war-
ranting summary judgment in Salina’s favor on the plaintiffs’ Four-
teenth Amendment claim.
A
Salina’s motion for summary judgment relies on its expert witness,
Mark White. Howard and Cozy Inn have filed a motion to exclude
White’s expert testimony. 4 Doc. 97.
White seeks to offer seven opinions. Doc. 97-3 at 3. First, White
states that Salina’s sign code “establishes time, place and manner met-
rics that are not content-based.” Id. His second opinion is that Salina’s
3 Howard and Cozy Inn initially sought a permanent injunction that would
enjoin Salina and its officials from enforcing the sign code against not only
the two plaintiffs, but those similarly situated to them. Doc. 101 at ¶ 5.b.
They voluntarily withdrew that request, claiming Trump v. CASA, Inc., 606
U.S. 831 (2025), precludes injunctions that would apply to entities that are
not parties to this suit. Doc. 102 at 1.
4 Howard and Cozy Inn identified a rebuttal expert, Dr. Charles Taylor. Salina
moved to exclude his testimony. Doc. 98. Because Taylor’s expert report was
not necessary to resolve the parties’ summary judgment motions, Salina’s mo-
tion is denied as moot.
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sign code “is supported by substantial and compelling interests in the
area of urban planning and code administration.” Id. Next, White as-
serts that the sign code “directly and materially furthers its recited pur-
poses,” “is not vague,” and “has numerous procedural safeguards.” Id.
He then opines that the sign code “is reasonable in scope in that it
targets issues related to wall signs, without unnecessarily expanding its
reach to artistic murals.” Id. And finally, White says that the restrictions
in Salina’s sign code “are reasonable, generally accepted regulations of
the size, shape, placement, and design of signs.” Id.
Howard and Cozy Inn move to exclude White as an expert at trial.
Doc. 97. First, they argue that White’s opinions invade the province of
the factfinder by applying the law to the facts and making impermissi-
ble legal conclusions. Id. at 3–7. Second, they argue that White’s opin-
ions are unreliable because they “are based on inappropriate specula-
tion and conjecture” and because they contradict a treatise that White
authored. Id. at 7–14. Salina, as the proponent of White’s testimony,
bears the burden of establishing its admissibility by a preponderance
of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.
2009). It has done so here, and, as a result, the plaintiffs’ motion to
exclude is denied.
1. Howard and Cozy Inn first challenge White’s seven opinions as
impermissible legal opinions. Doc. 97 at 3–7. Specifically, they rely on
the principle that an “expert may not state his or her opinion as to legal
standards nor may he or she state legal conclusions drawn by applying
the law to the facts.” Pioneer Ctrs. Holding Co. Emp. Stock Ownership Plan
& Tr. v. Alerus Fin., N.A., 858 F.3d 1324, 1342–43 (10th Cir. 2017)
(quoting Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1328 (10th Cir.
1998)).
It is true that White’s opinions largely mirror the legal standards
that the issues in this lawsuit turn on. But it is unnecessary to entirely
exclude White as an expert witness because the parties requested a
bench trial. Doc. 101 at 20–21. The concern that the plaintiffs raise
typically arises in cases that will be tried by a jury because it is important
to ensure that experts do not “go so far as to usurp the exclusive func-
tion of the jury to weigh the evidence and determine credibility.” United
States v. Hill, 749 F.3d 1250, 1260 (10th Cir. 2014). That concern is
absent when the trial judge is the finder of facts: Courts are able to
identify and ignore an expert’s testimony if and when the expert opines
on what the law is or attempts to apply the law to the facts of the
specific case. Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780
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(10th Cir. 2009) (noting that “a judge conducting a bench trial main-
tains greater leeway in admitting questionable evidence, weighing its
persuasive value upon presentation”).
The plaintiffs have not identified any authority excluding testi-
mony as an impermissible legal conclusion in a bench trial. As a result,
exclusion is not necessary because, to the extent White’s testimony
states impermissible legal conclusions, it can be ignored. See id.
2. So, too, with the plaintiffs’ reliability challenge. In essence, How-
ard and Cozy Inn argue that White’s opinions are unreliable because
they are not based on sufficient facts and data, and they contradict
conclusions White made in a treatise he authored. Doc. 97 at 7–14.
Not so.
First, White’s opinions are based on reliable facts and data. Fed. R.
Evid. 703 (“An expert may base an opinion on facts or data in the case
that the expert has been made aware of or personally observed.”).
White bases his opinions on the knowledge and experience he has
gained as “a planner and attorney recognized as an expert in zoning
and subdivision law, form-based zoning and New Urbanism, land use
and takings litigation, housing, development of comprehensive growth
management plans, and implementation systems.” Doc. 97-3 at 39.
That is sufficiently reliable. Bitler v. A.O. Smith Corp., 400 F.3d 1227,
1235 (10th Cir. 2005) (holding that a fire investigator’s expert opinion
on the cause of a fire was reliable when it was based on his experience
and knowledge). White also explained how he formed his opinions. He
reviewed Salina’s sign code, its comprehensive plan, its purported in-
terests, and other municipalities’ sign codes. See generally Doc. 97-3.
This gave White sufficient facts and data on which he could rely to
opine on the connection between Salina’s sign code and its proffered
justification for its speech restrictions. See Smith v. Ingersoll-Rand Co., 214
F.3d 1235, 1243–44 (10th Cir. 2000) (finding the district court did not
abuse its discretion in admitting expert’s testimony where expert testi-
fied based on review of case-specific data like depositions and discov-
ery material).
Second, White used reliable methods to evaluate the data he gath-
ered through his experience and reach conclusions based on it. He ap-
plied what he knows about urban planning and zoning regulations to
arrive at conclusions that logically follow from that knowledge and ex-
perience. For example, White examined Salina’s sign code and com-
prehensive plan to explain the city’s purported justifications for its sign
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13
regulations are traffic safety, aesthetics, and public health. Doc. 97-3 at
5–9. Then, he reviewed several studies and reports regarding the im-
pact that signs and public art can have on those interests. Id. And he
concluded, relying on that data and his expertise, that Salina’s sign reg-
ulations serve the purposes they are intended to serve. Id. That is what
experts do. Fed. R. Evid. 702 advisory committee’s note (2023); Tudor
v. Se. Okla. State Univ., 13 F.4th 1019, 1030–31 (10th Cir. 2021) (ex-
plaining that an expert may testify about opinions that rely on subjec-
tive opinions supported by general standards in the expert’s field).
And, more importantly, it is sufficient to establish reliability. Bitler, 400
F.3d at 1235 (finding expert conclusions based on experience and
knowledge reliable).
Salina’s contention that White’s opinions in this case differ from
what he has previously said does not compel a different result. Contra
Doc. 97 at 2. That his views may be seen as evolving or inconsistent
goes to the weight, not the admissibility, of his testimony. Ingersoll-Rand,
214 F.3d at 1244. And, like the plaintiffs’ challenge to White’s opinions
as impermissible legal conclusions, “the usual concerns regarding un-
reliable expert testimony reaching a jury obviously do not arise when a
district court is conducting a bench trial.” Att’y Gen. of Okla., 565 F.3d
at 779. As a result, exclusion is unnecessary.
B
The next issue is Salina’s contention that Howard and Cozy Inn
lack standing to bring this suit. Doc. 107 at 18–20. It fails because the
plaintiffs have shown that they suffered an injury-in-fact that is fairly
traceable to Salina’s actions and likely to be redressed by a favorable
decision.
1
“Article III confines the federal judicial power to the resolution of
‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 594 U.S. 413,
423 (2021) (quoting U.S. Const. art. III, § 2, cl. 1.); see also Spokeo, Inc.
v. Robins, 578 U.S. 330, 338 (2016). “For there to be a case or contro-
versy under Article III, the plaintiff must have . . . standing.” TransUn-
ion, 594 U.S. at 423. “Regardless of the stage of litigation at which [fed-
eral courts evaluate] standing, the standing inquiry remains focused on
whether the party invoking jurisdiction had a sufficient stake in the
outcome when the suit was filed.” Rio Grande Found. v. Oliver, 57 F.4th
1147, 1162 (10th Cir. 2023). Plaintiffs “must demonstrate standing
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14
separately for each form of relief sought.” WildEarth Guardians v.
Pub/Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012) (quoting
Friends of the Earth, Inc. v. Laidlaw Env’t Serv. (TOC), Inc., 528 U.S. 167,
185 (2000)) (internal quotation marks omitted).
Standing requires a plaintiff to have “suffered an injury in fact” that
is “fairly traceable to the challenged action of the defendant” and is
likely to be “redressed by a favorable decision.” Laufer v. Looper, 22
F.4th 871, 876 (10th Cir. 2022) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560–61 (1992)). “These requirements ensure that ‘the plain-
tiff has alleged such a personal stake in the outcome of the controversy
as to warrant his invocation of federal-court jurisdiction.’” Looper, 22
F.4th at 876 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009)).
The injury in fact must be “an invasion of a legally protected inter-
est which is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (cleaned up).
For an injury to be concrete, it must be “real” rather than “abstract,”
but not necessarily “tangible.” Lupia v. Medicredit, Inc., 8 F.4th 1184,
1190–91 (10th Cir. 2021). In other words, “it must actually exist.”
Spokeo, 578 U.S. at 340. And “[a] statutory violation does not neces-
sarily establish injury in fact.” Looper, 22 F.4th at 876 (explaining that
Spokeo and TransUnion recently clarified that fact). “For an injury to be
particularized, it ‘must affect the plaintiff in a personal and individual
way.’” Id. (quoting Lujan, 504 U.S. at 560 n.1); see also Spokeo, 578 U.S.
at 339. “[A]ctual or imminent [means] that the injury must have already
occurred or be likely to occur soon.” Food & Drug Admin. v. All. for
Hippocratic Med., 602 U.S. 367, 381 (2024). And “[a]n alleged future in-
jury is sufficiently imminent ‘if the threatened injury is certainly im-
pending, or there is a substantial risk that the harm will occur.’” Looper,
22 F.4th at 876 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158 (2014)).
As to causation, the plaintiff must show that “its injury is ‘fairly
traceable to the challenged action’” of the defendant. Rocky Mountain
Peace & Just. Ctr. v. U.S. Fish & Wildlife Serv., 40 F.4th 1133, 1152 (10th
Cir. 2022) (quoting Friends of the Earth, 528 U.S. at 180). For Article III
purposes, that means “proof of a substantial likelihood that the de-
fendant’s conduct caused plaintiff’s injury in fact.” Nova Health Sys. v.
Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005). To make that showing,
“plaintiffs bear the burden of pleading and proving concrete facts
showing that the defendant’s actual action has caused the [harm or a]
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15
substantial risk of harm.” Rocky Mountain Peace & Just. Ctr., 40 F.4th at
1152 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5
(2013)) (quotation marks omitted).
Regarding redressability, “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.”
Atlas Biologicals, Inc. v. Kutrubes, 50 F.4th 1307, 1325 (10th Cir. 2022)
(quoting Lujan, 504 U.S. at 560) (internal quotation marks omitted). In
other words, “a party must show that a favorable court judgment is
likely to relieve the party’s injury.” WildEarth, 690 F.3d at 1182 (quot-
ing City of Hugo v. Nichols (Two Cases), 656 F.3d 1251, 1264 (10th Cir.
2011)). “The plaintiff must show that a favorable judgment will relieve
a discrete injury, although it need not relieve his or her every injury.”
WildEarth, 690 F.3d at 1182 (quoting Nova Health Sys., 416 F.3d at
1158).
And finally, when assessing standing, federal courts are not to
“open the door to merits considerations at the jurisdictional stage.”
Smith v. Albany Cnty. Sch. Dist. No. 1 Bd. of Trs., 121 F.4th 1374, 1378
(10th Cir. 2024) (internal quotation marks omitted). Thus, “[f]or pur-
poses of standing, [courts] must assume the Plaintiffs’ claim has legal
validity.” COPE v. Kan. State Bd. of Educ., 821 F.3d 1215, 1220 (10th
Cir. 2016) (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082,
1092–93 (10th Cir. 2006) (en banc)). In other words, “standing in no
way depends on the merits of the plaintiff’s contention that particular
conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500 (1975).
2
Salina makes two standing arguments. Doc. 107 at 18–20. One ap-
plies only to the plaintiffs’ prior-restraint claim: Salina argues that
Howard agreed his permit application could be held in abeyance, so
neither he nor Cozy Inn was injured. Id. at 20. The other focuses on
redressability, asserting there is no relationship between the injury suf-
fered and the judicial relief that the plaintiffs request. Id. at 18–20. Nei-
ther has merit.
a
Salina’s argument that the plaintiffs consented to the prior restraint
fails. The plaintiffs want to finish painting the display on the exterior
wall of the building housing Cozy Inn. Doc. 105 at ¶ 223. They cannot
do that because Salina placed Howard’s permit application on hold
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16
instead of issuing a permit or formally denying his application. Doc.
106 at ¶ 106. As a result, the plaintiffs have suffered—and continue to
suffer—an injury-in-fact traceable to Salina’s indefinite hold of How-
ard’s permit application. See Utah Animal Rights Coal. v. Salt Lake City
Corp., 371 F.3d 1248, 1256 (10th Cir. 2004) (explaining that receiving a
permit application decision later than the timeframe that the applicant
was entitled to is sufficient for Article III standing).
This result does not change simply because Salina officials believe
Howard agreed to the open-ended delay. For one, Salina has not sup-
ported its assertion that a permit applicant may consent to an indefinite
delay in the processing of his or her permit application such that he or
she foregoes standing to challenge a prior restraint on expression. See
Rios v. Ziglar, 398 F.3d 1201, 1209 (10th Cir. 2005) (rejecting a novel
factual theory that was not supported by legal authority). But even if
that theory is viable, it fails for lack of factual support. The record is
devoid of any evidence suggesting that Howard consented to an indef-
inite delay of his permit application. Contra Doc. 107 at 20.
To support its position, Salina points to deposition testimony from
various city officials who talked to Howard about his permit applica-
tion. Id. (citing Doc. 107 at ¶¶ 20, 22, 23, 29). Yet no portion of Salina’s
cited testimony suggests that Howard agreed to the processing delay.
For example, the testimony provides that Howard “was informed . . .
that the sign . . . is not something the staff had the authority to permit,”
Doc. 107-12 at 16, that “Howard had knowledge that [Salina was] not
able to approve his sign permit application,” Doc. 107-5 at 17, and that
a city official told Howard “face-to-face that [Salina was] unable to is-
sue a sign permit for the sign as currently proposed under the current
sign code,” id. This evidence does not indicate that Howard consented to
the open-ended hold. Sanchez v. Guzman, 105 F.4th 1285, 1296–97
(10th Cir. 2024) (explaining that a party must support its version of the
facts with evidence in the record that supports those facts). Nor has
Salina established that Howard’s knowledge that his permit application
would be denied could deprive him of standing to challenge the permit
requirement on its face or as applied to him. See Dr. John’s, Inc. v. City of
Roy, 465 F.3d 1150, 1156 (10th Cir. 2006) (finding plaintiffs had stand-
ing to challenge a licensing requirement because the city indicated its
intent to enforce the requirement even though the plaintiffs did not
actually apply for a license).
b
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17
Salina next argues the plaintiffs lack standing because it believes
that a judgment in the plaintiffs’ favor will not redress the plaintiffs’
asserted injuries. Doc. 107 at 18–20. In particular, it claims that an un-
challenged provision of the sign code—specifically, Salina’s regulations
on how much signage a business may display—will preclude the plain-
tiffs from completing their display even if Salina’s current construction
of the word “sign” is unconstitutional. Id. at 19 (“What remains will be
unchallenged, objective numerical size limits that are clearly constitu-
tional.”).
Salina’s argument fails because a judgment in Howard and Cozy
Inn’s favor will meaningfully redress their injuries. When Salina
stopped the plaintiffs from completing their display, it relied on three
separate but interconnected parts of its sign code and/or its unwritten
construction of the code. The first is the unwritten distinction that Sa-
lina applies between unregulated murals and regulated signs based on
whether a given display pertains to the goods or services sold on site.
Doc. 105 at ¶ 100; Doc. 107 at 13–14, ¶ 40. The second is the sign
code’s permit requirement, which only requires a permit to be issued
for displays that qualify as a sign. Doc. 107 at 10, ¶ 20. And the third
is the sign code’s restriction on how much outdoor signage a particular
business or entity may display on its premises, which again, applies to
signs but not murals. Doc. 105 at ¶ 32; Doc. 107-12 at 11–12. Accord-
ing to the plaintiffs, those regulations are unconstitutional. If the plain-
tiffs prevail, Salina will be enjoined from enforcing any of these regu-
lations. See Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221, 1229
(10th Cir. 2005) (finding that the plaintiffs had standing to challenge
an ordinance requiring them to submit to fingerprinting and a bond
requirement because they faced “a credible threat of prosecution or
other consequences following from the statute’s enforcement”); Initia-
tive & Referendum Inst., 450 F.3d at 1092–93 (noting that the legal valid-
ity of a plaintiff’s claim must be accepted at the standing phase). That
is sufficient for Article III standing. Aptive Env’t, LLC v. Town of Castle
Rock, 959 F.3d 961, 978 (10th Cir. 2020) (explaining that enjoining a
government entity from enforcing an unconstitutional ordinance re-
dresses injuries caused by the ordinance).
In essence, Salina argues that it could subsequently choose to ex-
pand its interpretation of the word “sign” to encompass both murals
and signs, which would remove the allegedly unlawful mural-sign dis-
tinction that the plaintiffs oppose, while still precluding the plaintiffs’
display. Doc. 107 at 19–20. This argument misses the mark. Salina
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18
cannot avoid the plaintiffs’ constitutional challenge by stating that it
could, hypothetically, redefine “sign” to encompass more displays than
it does now. The plaintiffs are challenging Salina’s current definition
of sign, which is the very definition stopping them from finishing their
display. As a result, declaratory or injunctive relief precluding Salina
from enforcing that interpretation would redress the plaintiffs’ injury.
We the Patriots, Inc. v. Grisham, 119 F.4th 1253, 1257 (10th Cir. 2024)
(“The critical question, then, is whether our present grant of relief
would have some real-world, not theoretical, effect.”); Consumer Data
Indus. Ass’n v. King, 678 F.3d 898, 902 (10th Cir. 2012) (explaining that
even if the injured party “would not be out of the woods, a favorable
decision would relieve their problem ‘to some extent,’ which is all the
law requires”).
The authority Salina cited fails to support its position. Salina relies
on three cases in which a plaintiff alleged that a portion of a local gov-
ernment’s sign ordinance violated the First and/or Fourteenth
Amendments. Doc. 107 at 19 (citing Advantage Media, L.L.C. v. City of
Eden Prairie, 456 F.3d 793, 800–01 (8th Cir. 2006), then citing Get Out-
doors II, LLC v. City of San Diego, 506 F.3d 886, 892–93 (9th Cir. 2007),
and then citing Harp Advert. Ill., Inc. v. Vill. of Chi. Ridge, 9 F.3d 1290,
1292 (7th Cir. 1993)). In each, the plaintiff challenged a discrete provi-
sion of the sign code that could be severed from the code if it were
held to be unconstitutional. Advantage Media, L.L.C., 456 F.3d at 800–
01 (explaining that the plaintiff challenged multiple provisions of a sign
ordinance that could easily be severed from the others); Get Outdoors
II, LLC, 506 F.3d at 892 (same); Harp Advert., 9 F.3d at 1292 (explain-
ing that other provisions of the sign code were constitutionally valid
even if the one challenged was not). Moreover, each of those sign
codes included a separate and valid provision that the plaintiff did not
challenge, which would prevent the plaintiffs from displaying the signs
they wanted to erect or otherwise display regardless of whether the
challenged provisions were constitutional or not. See, e.g., Harp Advert.,
9 F.3d at 1292. As a result, a favorable judgment for the plaintiffs in
those cases would not have put them any closer to erecting their dis-
plays. Advantage Media, L.L.C., 456 F.3d at 802 (“[E]ven in victory it
would be ‘no closer’ to erecting its billboards or obtaining damages
than when litigation began.”). They would simply be subject to regula-
tion under a different and concededly valid provision of the code. See
id.
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19
That is not the case here. Howard and Cozy Inn’s challenge in-
cludes the sign code’s size restrictions, which is the same portion of
the sign code that Salina says is a separate and unchallenged provision
precluding the plaintiffs from completing their display. See Doc. 107 at
19. As a result, unlike the cases Salina cited, there is no scenario under
the summary judgment record in which the sign code’s size restrictions
could be enforced against the plaintiffs’ display without referencing the
way Salina interprets and applies its definition of sign. See Bishop v.
Smith, 760 F.3d 1070, 1077–78 (10th Cir. 2014) (holding that a statute
the plaintiff did not challenge could not defeat redressability where
there was no scenario in which the statute could be enforced if the
challenged state constitutional amendment were found unconstitu-
tional).
That the plaintiffs have standing to challenge specific provisions
of the sign code does not mean they have standing to challenge the
entirety of the code. Howard and Cozy Inn are challenging “the written
sign code, the unwritten policies and practices, the permit requirement,
the size restrictions, and the concomitant enforcement penalties.”
Doc. 106 at 6 n.2. The record, however, does not support such a broad
challenge to Salina’s sign regulations. See Essence, Inc. v. City of Fed.
Heights, 285 F.3d 1272, 1281–82 (10th Cir. 2002) (holding that a plain-
tiff lacked standing to challenge portions of an ordinance where there
were no facts suggesting that portion would be applied to the plaintiff).
As a result, the plaintiffs’ claims are construed as to only challenge the
parts of the sign code that Salina enforced or expressed an intent to
enforce against them: the distinction between regulated signs and un-
regulated murals, the size restrictions applicable to signs, and the per-
mit requirement. Doc. 109 at ¶ 3; Doc. 105 at ¶ 32.
C
Howard and Cozy Inn’s primary argument is that Salina’s sign code
violates the First Amendment’s Free Speech Clause. Doc. 105 at 26–
39. That clause prohibits laws “abridging the freedom of speech.” U.S.
Const. amend. I. Outdoor displays, including signs, “are a form of ex-
pression protected by the Free Speech Clause.” City of Ladue v. Gilleo,
512 U.S. 43, 48–49 (1994). Yet municipalities “have regulated outdoor
advertisements for well over a century.” City of Austin v. Reagan Nat’l
Advert. of Austin, LLC, 596 U.S. 61, 65 (2022). Municipalities both enact
sign regulations that carry penalties for non-compliance, and they of-
ten require individuals or entities to obtain a permit before they may
display certain types of signs. See id. at 64–66. These types of regulation
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20
make sense: “Unlike oral speech, signs take up space and may obstruct
views, distract motorists . . . and pose other problems that legitimately
call for regulation.” City of Ladue, 512 U.S. at 48. The need for regula-
tion, however, does not authorize local governments “to restrict ex-
pression because of its message, its ideas, its subject matter, or its con-
tent.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Nor does it allow
local governments to create permit-approval schemes giving unbridled
discretion to government officials regarding which messages may be
displayed, when and how a permit decision may be reviewed, and how
long government officials may take to issue a decision regarding a per-
mit application. Dr. John’s, 465 F.3d at 1161; Utah Animal Rights Coal.,
371 F.3d at 1258.
These principles set the stage for the plaintiffs’ free-speech argu-
ments. They bring two types of First Amendment claims. Doc. 101 at
¶ 4.a.i. In one, they assert that Salina engages in content discrimination
by applying its sign code to speech based on the topic or subject matter
of the speech in a way that cannot survive strict scrutiny. Id. The other
claim asserts that Salina’s permit requirement is an impermissible prior
restraint on the plaintiffs’ speech. Id.
The plaintiffs’ First Amendment claims are facial and as-applied
challenges. Doc. 101 at ¶ 4.a.i. A successful facial challenge requires a
plaintiff to “establish that no set of circumstances exists under which
the ordinance would be valid,” “that the ordinance lacks any plainly
legitimate sweep,” “or that it is overbroad because a substantial num-
ber of its applications are unconstitutional, judged in relation to its
plainly legitimate sweep.” Harmon v. City of Norman, 61 F.4th 779, 795
(10th Cir. 2023) (alterations omitted). In contrast, “an as-applied chal-
lenge tests the application of that restriction to the facts of a plaintiff’s
concrete case.” iMatter Utah v. Njord, 774 F.3d 1258, 1264 (10th Cir.
2014) (quoting Colo. Right to Life Comm. v. Coffman, 498 F.3d 1137, 1146
(10th Cir. 2007)). But “the distinction between facial and as-applied
challenges is not so well defined that it has some automatic effect.” Doe
v. City of Albuquerque, 667 F.3d 1111, 1124 (10th Cir. 2012) (quoting
Citizens United v. FEC, 558 U.S. 310 (2010)). The label a plaintiff places
on his or her challenge does not control which standard must be satis-
fied, rather the distinction “goes to the breadth of the remedy em-
ployed.” Id.
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21
1
First, Howard and Cozy Inn contend that Salina imposes an im-
permissible content-based restriction on expression—both on its face
and as applied to their display. Doc. 101 at ¶ 4.a.i. The crux of the
plaintiffs’ argument is Salina’s alleged distinction between murals and
signs based on the notion that a display is a sign if it pertains to a good
or service sold on the same premises.
That distinction—between a mural and a sign—is facially uncon-
stitutional, according to the plaintiffs, because it turns on the subject
matter of the display. Doc. 105 at 26–30. And they state that Salina
unconstitutionally applied the distinction to their display because Sa-
lina has seemingly allowed other businesses to erect displays pertaining
to the goods or services they sell—such as a baseball training facility’s
mural reflecting baseball games and a music store’s mural promoting
music—without requiring those displays to meet the regulations set
forth in the city’s sign code by claiming they were murals. Doc. 105 at
28–30; see Wells v. City and County of Denver, 257 F.3d 1132, 1151 (10th
Cir. 2001) (noting that an as-applied content-discrimination challenge
may consider evidence regarding whether the policy is or has been “en-
forced in a uniform, non-discriminatory manner, without regard to
content or viewpoint”); Members of City Council of City of L.A. v. Taxpayers
for Vincent, 466 U.S. 789, 816 (1984) (“To create an exception for ap-
pellees’ political speech and not these other types of speech might cre-
ate a risk of engaging in constitutionally forbidden content discrimina-
tion.”).
The plaintiffs’ claim can be taken in two steps. The first requires
categorizing the type of regulation that the plaintiffs challenge. Based
on that categorization, the second step is evaluating whether Salina’s
regulations survive the applicable level of scrutiny.
a
There are three potential categories of speech regulation that could
describe Salina’s mural-sign distinction. Those are content-neutral reg-
ulations, content-based regulations, and one unique type of content-
based regulations—ones that distinguish only between commercial
and non-commercial speech. The constitutional framework differs de-
pending on which type of regulation is at issue.
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22
For example, Salina argues that the framework governing content-
neutral regulations applies. Doc. 107 at 20. A regulation is content neu-
tral and subject to intermediate scrutiny if it “does not draw content-
based distinctions on its face” and “is ‘justified without reference to
the content of the regulated speech.’” Evans v. Sandy City, 944 F.3d 847,
854 (10th Cir. 2019) (quoting McCullen v. Coakley, 573 U.S. 464, 479
(2014), and then quoting Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989)). The plaintiffs, however, argue that the framework governing
content-based regulations applies. Doc. 105 at 26. Content-based reg-
ulations—regulations that apply “because of the topic discussed or the
idea or message expressed”—are presumptively unconstitutional and
must survive strict scrutiny to be lawful. Reed, 576 U.S. at 163; Street-
MediaGroup, LLC v. Stockinger, 79 F.4th 1243, 1249 (10th Cir. 2023).
And both parties make alternative arguments under the commercial-
speech framework. Doc. 105 at 30–35; Doc. 107 at 35–38. Regulations
that impose more stringent restrictions on commercial speech than
they do on non-commercial speech are content-based regulations, but
they are subject to “a form of intermediate standard of review” instead
of strict scrutiny. Aptive Env’t, 959 F.3d at 987 (internal quotation
marks omitted); Mainstream Mktg. Servs., Inc. v. F.T.C., 358 F.3d 1228,
1236–37 (10th Cir. 2004).
The parties vigorously dispute which category encompasses the
challenged sign regulations. But it is not necessary to determine
whether Salina’s regulations are content based or content neutral. That
is because Salina’s regulations fail even accepting that intermediate
scrutiny applies because the regulations are content-neutral
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23
regulations.5 See McCraw v. City of Okla. City, 973 F.3d 1057, 1070–71
(10th Cir. 2020) (taking this approach).
b
Salina’s mural-sign distinction does not survive intermediate scru-
tiny. The intermediate-scrutiny standard turns on whether a restriction
on speech “is narrowly tailored to achieving significant government
5 Legal and factual uncertainty support this approach. For one, the facts of
this case fall between two Supreme Court cases that reached opposite con-
clusions. Compare Reed v. Town of Gilbert, 576 U.S. 155, 164–65 (2015) (finding
that a sign regulation was content based because it regulated signs differently
based on their subject matter by imposing heightened restrictions on signs
that directed individuals to events while treating signs that communicated
other messages more favorably), with City of Austin v. Reagan Nat’l Advert. of
Austin, LLC, 596 U.S. 61, 71–72 (2022) (noting that a sign regulation that
only regulated off-premises billboards was content neutral because it was
“based solely on whether it is located on the same premises as the thing being
discussed or not”); see also StreetMediaGroup, LLC v. Stockinger, 79 F.4th 1243,
1250 (10th Cir. 2023) (grappling with the “arguable tension” between Reed
and City of Austin before finding that an ordinance regulating billboards based
on whether they were paid for was content neutral under City of Austin). Add-
ing to this uncertainty, the Tenth Circuit has not indicated in what situations
evidence of arbitrary or discriminatory enforcement suggests a content-based
regulation. Wells v. City and County of Denver, 257 F.3d 1132, 1156 (Briscoe, J.,
dissenting) (identifying evidence that the city arbitrarily enforced an excep-
tion to its speech restrictions but noting that the majority did not find the
evidence presented sufficient to consider the city’s policy one that regulated
based on content).
For another, the parties agree only that Salina regulated the plaintiffs’ display
because it pertains to the food products Cozy Inn sells. Doc. 105 at ¶ 100.
They dispute whether the policy is rooted in the text of Salina’s sign code,
whether Salina has consistently applied the policy, and whether the other lan-
guage in the sign code defining signs as displays that “announce” or “direct
attention to” are independent reasons Salina relied on to regulate the plain-
tiffs’ display. See Doc. 108 at 7–8, ¶ 26. Although there are clear reasons to
believe that Salina’s alleged distinction between a mural and a sign lacks a
textual basis, that its application of this alleged distinction has been incon-
sistently applied, and that the proffered concern about commercial direction
was not the motivating factor for the action, those conclusions need not be
reached to resolve this case. The reason is because, even assuming that it
imposed a content-neutral restriction on the plaintiffs’ display, Salina’s regu-
lation cannot survive intermediate scrutiny.
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24
interests, and that [it] leaves open ample alternative channels of com-
munication.” Brewer v. City of Albuquerque, 18 F.4th 1205, 1220 (10th
Cir. 2021); StreetMediaGroup, 79 F.4th at 1252. In this context, “narrow
tailoring requires that the chosen means do not ‘burden substantially
more speech than is necessary to further the government’s legitimate
interests.’” StreetMediaGroup, 79 F.4th at 1252 (quoting Ward, 491 U.S.
at 799. The government carries the burden to show that its regulation
is narrowly tailored to serve significant interests. Doe, 667 F.3d at 1133;
VoteAmerica v. Schwab, 121 F.4th 822, 852 (10th Cir. 2024) (“The gov-
ernment has the burden of persuasion in this inquiry.”).
Salina proffers four governmental interests for its sign regulations.
They include aesthetics, traffic and pedestrian safety, and property val-
ues. Doc. 107 at 27. According to Salina, its sign regulations are nar-
rowly tailored to those four interests because the regulations serve to
limit the size, number, height, and location of signs. Id. at 28. Assuming
without deciding that Salina has set forth substantial interests, Salina
has not met its burden to demonstrate that its distinction between
signs and murals is narrowly tailored to promoting the city’s aesthetics,
safety, or property values. See StreetMediaGroup, 79 F.4th at 1252 (de-
scribing this requirement); Reed, 576 U.S. at 171 (assuming interests
were compelling because they were not properly tailored under the ap-
plicable standard).
i
As an initial matter, the parties dispute what evidence would suffice
for a governmental entity like Salina to meet its burden to show that a
sign regulation is narrowly tailored to the interests of aesthetics, prop-
erty values, and traffic or pedestrian safety. Compare Doc. 107 at 29–
30, with Doc. 108 at 28–35. Specifically, they disagree as to whether the
government must present evidence to show that a government re-
striction of displays on private property is narrowly tailored to its aes-
thetic and safety interests, or whether any restriction of such displays is
narrowly tailored as a matter of law. Id. The Tenth Circuit’s most recent
articulation of the intermediate-scrutiny standard in the context of a
speech regulation restricting displays on private property states: “In
this context, narrow tailoring requires that the chosen means do not
‘burden substantially more speech than is necessary to further the gov-
ernment’s legitimate interests.’” StreetMediaGroup, 79 F.4th at 1252
(quoting Ward , 491 U.S. at 799). This standard, regardless of what type
of speech restriction is at issue, requires the government to show that
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25
its “recited harms are real” or that its regulations “will in fact alleviate
these harms in a direct and material way.” McCraw, 973 F.3d at 1071.
To determine whether a municipality has produced sufficient evi-
dence to meet this burden, it is necessary to “evaluate that evidence ‘in
light of the cases where those categories of evidence have previously
been invoked.’” McCraw, 973 F.3d at 1073 (quoting Aptive Envt’l, 959
F.3d at 989). In cases involving speech restrictions on private property,
evidence like expert testimony, research studies, and the experiences
of other cities may suffice so long as the evidence that “the city relies
upon is reasonably believed to be relevant to the problem that the city
addresses.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51 (1986)
(relying on testimony, research, and cases analyzing other cities’ expe-
riences to hold that the city’s restriction on adult theaters was narrowly
tailored to its interest in safety); see also Abilene Retail No. 30, Inc. v. Bd.
of Comm’rs of Dickinson Cnty., Kan., 492 F.3d 1164, 1167 (10th Cir. 2007)
(requiring the county to justify that it reasonably relied on studies ana-
lyzing similar problems in surrounding communities to support its
zoning ordinance). This standard does not set “a high bar,” but it still
requires municipalities to produce evidence that “fairly support[s] the
municipality’s rationale for its ordinance.” City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425, 438–39 (2002).
Relying on Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981),
Salina promotes a different standard. Doc. 107 at 29–30. In that case,
the Supreme Court applied the commercial-speech test to uphold an
ordinance that allowed businesses to erect on-site billboard advertise-
ments but prohibited off-site billboard advertisements. Metromedia, 453
U.S. at 500–12. The Supreme Court did not require the city to present
evidence showing that off-site advertising was peculiarly dangerous or
aesthetically harmful as compared to on-site advertising because the
city’s judgment to value “one kind of commercial speech—onsite ad-
vertising—more than another kind of commercial speech—offsite ad-
vertising” reflected a reasonable judgment “by the city that the former
interest, but not the latter, is stronger than the city’s interests in traffic
safety and esthetics.” Id. at 512. The Tenth Circuit has clarified that the
situation in Metromedia is a narrow one applicable to commercial-
speech cases “where [a court] can defer to the legislature on the basis
of precedent which already has established that the legislature’s chosen
means directly advances the asserted ends.” Adolph Coors Co. v. Brady,
944 F.2d 1543, 1550 (10th Cir. 1991).
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26
Salina has not shown that the narrow situation presented in Metro-
media applies here. For one, Salina expressly rejects the notion that this
case involves a regulation on commercial speech. Doc. 107 at 35. For
another, Salina has not identified an “established line of cases” to sup-
port its judgment that displays pertaining to the goods or services sold
on the same premises as the display are more detrimental to the city’s
interests than displays depicting something else. See Adolph Coors Co.,
944 F.2d at 1550. As a result, Salina must present evidence showing
that its regulations do not “burden substantially more speech than is
necessary to further [its] legitimate interests.” Evans, 944 F.3d at 858.
ii
In its attempt to show a connection between the regulation and its
interests, Salina points to three categories of evidence. Doc. 107 at 30–
31. This evidence includes the testimony from city officials, industry-
specific publications, and expert testimony. Id.; see Brewer, 18 F.4th at
1225–26 (noting that a city must present specific evidence that a chal-
lenged regulation is narrowly tailored to achieve the interests it asserts).
This evidence actually undermines Salina’s position. For example,
Salina relies on City Planner Dustin Herr’s deposition testimony where
he states that the sign regulations are designed to reduce sign clutter
and distraction by limiting the size, number, height, and location of
signs throughout the city. Doc. 107-6 at 10. Herr did not, however,
address or explain why displays that (allegedly) do not pertain to the
services or goods a business sells—for example, a commercial baseball
training facility promoting engagement in baseball, or a music store
promoting the engagement in playing music—would have any differ-
ent impact on those interests than signs like Cozy’s hamburger scheme
might. See McCraw, 973 F.3d at 1075 (finding a restriction unlawful
where there was no evidence that the city considered the correlation
between the restriction it imposed and the problems it identified). In-
stead, his explanation is entirely circular; it depends on his characteri-
zation of whether the sign is deemed a mural, which is not regulated,
or a sign, which is regulated and must obtain approval.
So, too, with the publications Salina cites. One publication, for ex-
ample, suggests the general notion that regulating signs promotes
safety and community aesthetics. Doc. 107-2 at 7. But again, that in-
formation provides no explanation or insight into how Salina differen-
tiates between murals and signs. See StreetMediaGroup, 79 F.4th at 1252
(affirming dismissal because the plaintiff’s complaint did not
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27
sufficiently state a claim but stating it was “skeptical that paid-for signs
are more distracting and damaging to aesthetics” under intermediate
scrutiny).
The final category of evidence that Salina cites is expert testimony.
Unlike the other two categories of evidence, which indicate no connec-
tion between Salina’s interests and its mural-sign distinction, Salina’s
expert, Mark White, recognizes the needed connection. In particular,
White states that the sign code “stops where it needs to, by not sweep-
ing decorative building elements such as murals that display public art
into the same regulatory system that applies to signs.” Doc. 97-3 at 2.
Relying on various studies, White opines that public art may actually
improve traffic, aesthetics, and public health—unlike signs, which
cause harm in those areas. Id. at 7–12. But in reaching this opinion,
White’s opinion not only accepts Salina’s circular definition of art as
true but depends on it for support. In other words, White’s opinions
rely on the assumption that the definition of public art, in all of the
studies he relies on, is based on where a given display is located. But
White’s report is devoid of any explanation or opinion indicating how
or why a display that references a business’s product is any more harm-
ful to safety, aesthetics, or health than a display that references any-
thing else. See Brewer, 18 F.4th at 1229 (finding expert testimony insuf-
ficient to satisfy the narrow tailoring requirement when the expert’s
opinions lent “minimal support to the notion that the Ordinance does
not burden substantially more speech than necessary, or that it allevi-
ates non-speculative harms in a direct and material way”). Nor does he
explain, for example, why a baseball training facility’s baseball mural or
a music store’s mural depicting musical notes avoids such harms. This
is insufficient to justify Salina’s restrictions on the plaintiffs’ speech.
See Edenfield v. Fane, 507 U.S. 761, 771 (1993) (finding that a local gov-
ernment’s ban on commercial solicitation was not narrowly tailored to
the government’s interest because the only evidence to support it was
an affidavit containing “nothing more than a series of conclusory state-
ments”).
Other cases that have explored municipal regulations similar to the
one Salina imposed have reached a similar result. In Young v. Town of
Conway,783 F. Supp. 3d 588 (D.N.H. 2025), for example, the court
found that a town’s regulation against displays that feature the goods
or services sold on the same premises as the display was not sufficiently
connected between the town’s interests and its enforcement against a
bakery because there was no evidence that “a sign depicting baked
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28
goods would have a different effect on safety than a sign depicting
mountains (or anything else).” Young, 783 F. Supp. 3d at 608. That rule
makes sense. It would seem illogical to argue that a hamburger-based
display on a building housing a hamburger restaurant implicates inter-
ests requiring prohibition whereas that same display across the street
on a building housing another business, perhaps a pizza restaurant, im-
plicates none of those concerns.
* * *
This result does not undermine the authority that cities have to
implement solutions to the problems that it encounters. As the Su-
preme Court has long recognized, the “First Amendment does not re-
quire a city, before enacting . . . an ordinance, to conduct new studies
or produce evidence independent of that already generated by other
cities.” City of Renton, 475 U.S. at 51. Nor does Salina need to wait for
actual safety or aesthetic problems to occur before it can justify its reg-
ulations. See Brewer, 18 F.4th at 1243; Evans, 944 F.3d at 858. But the
First Amendment requires that a municipality like Salina justify its so-
lution to a given problem with some evidence that its regulations are
connected to the interests they purport to serve. See Brewer, 18 F.4th at
1227 (finding a city ordinance unconstitutional because there was “lit-
tle evidence of non-speculative harms or interests that the Ordinance’s
restrictions alleviate in a direct and material way”). As explained above,
the uncontested facts demonstrate that Salina has presented no evi-
dence connecting its solution—distinguishing between signs that per-
tain to the goods and services sold on-site and murals that do not—to
its stated interests. As a result, the plaintiffs’ motion for summary judg-
ment on their First Amendment content-discrimination claim is
granted, and Salina’s motion is denied.
2
Second, Howard and Cozy Inn assert that Salina’s permit require-
ment for a sign is a prior restraint that the First Amendment prohibits.
Doc. 105 at 37. A prior restraint on speech, which occurs when the
government must approve speech before it occurs, bears “a heavy pre-
sumption against its constitutional validity.” Am. Target Advert., Inc. v.
Giani, 199 F.3d 1241, 1250 (10th Cir. 2000). To be constitutionally
valid, prior restraints must encompass certain safeguards. Essence, 285
F.3d at 1289–90. In particular, prior restraints, such as permit require-
ments, cannot give “the decisionmaker unlimited time to decide on
matters affecting the license; otherwise, there is the ‘risk of indefinitely
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29
suppressing speech.’” Id. (citation omitted). Howard and Cozy Inn
contend that Salina violated these principles when it placed their per-
mit application on an indefinite hold without formally approving or
denying it.6 Id.
Prior restraints must provide a clearly specified and brief time pe-
riod in which speech may be restricted while government officials pro-
cess a permit application. Am. Target, 199 F.3d at 1253. Salina’s permit
requirement allows the zoning administrator ten days to issue or refuse
a permit “or within such further period as may be agreed to by the
applicant.” Salina Code § 42-502(b). On its face, this ten-day period
satisfies the First Amendment. See Am. Target, 199 F.3d at 1253–54
(holding that a ten-day period restricting speech during administrative
processing of a permit was constitutional). As applied to the plaintiffs,
however, the result is different. See City of Littleton v. Z.J. Gifts D-4,
L.L.C., 541 U.S. 774, 784 (2004) (reiterating that a facially valid prior
restraint that provided a sufficient system of review could be chal-
lenged in the future by litigants who were denied licenses to “raise spe-
cial problems of undue delay in individual cases as the ordinance is
applied”).
The uncontested facts establish that instead of making a formal
determination, Salina set Howard’s permit application aside indefi-
nitely. Doc. 105 at ¶ 113. This exact situation, where city officials dis-
regard a facially constitutional timeframe regarding one particular per-
mit application, has not been addressed by binding authority. As a re-
sult, it is necessary to turn to the Supreme Court’s and the Tenth Cir-
cuit’s reasoning for striking down ordinances that lacked a prior-re-
straint deadline even on their face.
6 Howard and Cozy Inn also assert that Salina’s permit requirement is an
unconstitutional prior restraint because it vests unbridled discretion in the
government officials charged with the responsibility of granting or denying
the permit. Doc. 105 at 37. That argument focuses on Salina’s distinction
between regulated signs and unregulated murals. In light of the conclusion
that such a distinction is unconstitutional because it fails to survive interme-
diate scrutiny, see supra Section II.C.1, it is not necessary to address the plain-
tiffs’ argument that the same distinction is an unconstitutional prior restraint.
See Am. Target, 199 F.3d at 1250 n.2 (declining to consider a prior restraint
claim that fell outside of the ordinary context of a licensing or zoning scheme
after finding that the challenged provision was an unconstitutional burden
upon free speech on other grounds).
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30
The Supreme Court has repeatedly struck down ordinances as im-
permissible prior restraints because the ordinance failed to “place lim-
its on the time within which the decisionmaker must issue the license.”
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226 (1990) (collecting
cases). In particular, it reasons that a “scheme that fails to set reasona-
ble time limits on the decisionmaker creates the risk of indefinitely
suppressing permissible speech.” Id.; accord Dr. John’s, 465 F.3d at 1163–
64 (“[T]he concern evidenced by prior restraint cases is that a party will
have to refrain from speaking while it waits for a decision from the
licensing authority.”). The problem that those prior-restraint cases
identify is that “each day of delay in acting on the application was a day
in which the speaker was forced to be silent.” Utah Animal Rights Coal.,
371 F.3d at 1259.
A permitting scheme without a deadline is not always unlawful.
The Tenth Circuit has upheld permitting or licensing requirements that
did not include a timing safeguard, but it did so because those schemes
did not suppress or restrict the applicants’ speech while they waited for
the government’s decision. For example, in Utah Animal Rights Coali-
tion, the Tenth Circuit upheld a local government’s delay in deciding a
permit application because the application covered expression that was
set to occur at a future event would not occur until after a decision was
issued. Id. at 1259; see also Dr. John’s, 465 F.3d at 1163 (similarly distin-
guishing a licensing scheme in which a business needed not wait to
operate while waiting for a permit application to be decided).
Salina’s actions are unconstitutional prior restraints because they
forbade additional expressions while awaiting government approval.
By putting Howard’s application on hold, Salina has indefinitely sup-
pressed his and Cozy Inn’s expression. That deep freeze is the exact
situation that the prior-restraint doctrine forbids. See City of Lakewood
v. Plain Dealer Publ’g Co., 486 U.S. 750, 771–72 (1988) (explaining that
a policy lacking a time frame for review violates the First Amendment
by allowing for indefinite delay of a permit application). Despite the
ordinance’s ten-day requirement, Howard’s permit application has
been on hold since November 2023. Doc. 105 at ¶¶ 106, 113. Allowing
such indefinite holds—especially when the city’s ordinance requires a
timely decision—would mean that nothing in the ordinance’s applica-
tion would prevent city officials “from encouraging some views and
discouraging others,” Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123,
133 (1992), which is exactly what the plaintiffs argue has happened
here.
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31
Salina’s sole argument to the contrary—that Howard agreed to the
open-ended delay—has already been rejected as factually unsupported.
As explained above, the record evidence contradicts Salina’s assertion
that Howard consented to Salina placing his permit application on
hold. See infra Section II.A. One deposition is particularly illustrative.
Salina’s Planning and Zoning Administrator, Dean Andrew, repeatedly
stressed in his deposition that Howard agreed to the hold. Doc. 107-5
at 16–17. He was asked how he know that Howard agreed, and each
time he emphasized that city officials informed Howard that they were
placing his application on hold. For example, in one of his responses,
he stated: “Mr. Howard was informed on Monday the 6th that we were
unable to issue a sign permit, and he was informed that we were going
to continue to work with him on coming up with a code-compliant
solution that might allow the sign to ultimately be installed.” Id. at 16.
Another time, Andrew was explicitly asked how he defined Howard’s
consent to the hold. He responded: “Mr. Herrs talked to Mr. Howard
face-to-face, handed him information face-to-face and told him face-
to-face that we are unable to issue a sign permit for the sign as currently
proposed under the current sign code.” Id. at 17. Salina has not pro-
vided any evidence that would lead a reasonable juror to conclude that
Howard had any agency in Salina’s determination, much less that he
voluntarily agreed to an indefinite hold of his permit application. As a
result, Salina has not introduced evidence sufficient to rebut the plain-
tiffs’ showing that Salina applied an unconstitutional prior restraint to
their expression. And because Salina has not presented evidence that
would create a genuine fact issue, the plaintiffs’ motion for summary
judgment on their prior restraint claim is granted, and Salina’s motion
on this claim is denied.
D
Howard and Cozy Inn’s final claim is that Salina’s sign policies are
unconstitutionally vague in violation of the Fourteenth Amendment.
Doc. 105 at 39–40. A policy is impermissibly vague “if it fails to pro-
vide people of ordinary intelligence a reasonable opportunity to under-
stand what conduct it prohibits” or “if it authorizes or even encourages
arbitrary and discriminatory enforcement.” Wyo. Gun Owners v. Gray, 83
F.4th 1224, 1233 (10th Cir. 2023) (quoting Hill v. Colorado, 530 U.S.
703, 732 (2000)). The regulations at issue are not so vague as to offend
the Fourteenth Amendment.
The plaintiffs urge that the sign code fails to define key terms,
thereby encouraging arbitrary enforcement. Doc. 105 at 40. They point
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32
to five phrases or terms: “mural,” “art,” “pertains to,” “commercial
speech,” and “advertise.” Id. Of those five terms or phrases, only one
actually appears in Salina’s sign code. Four of them are not alleged to
be in the pertinent policy language—“mural,” “art,” “pertains to,” and
“commercial speech.” They are merely phrases that Salina officials
have used to describe or explain the city’s sign regulations. See, e.g.,
Doc. 105-5 at 29 (distinguishing “art and murals” from “sign[s]” at a
Salina City Commission Meeting); Doc. 105-24 at 8 (noting in Salina’s
interrogatory answers that “the term ‘art’ may be used from time to
time as an imprecise short-hand for ‘not sign’”); Doc. 105-12 at 11
(discussing Salina City Manager’s comment to a reporter stating that a
sign “pertains to” the goods or services for sale); Doc. 105-5 at 6 (stat-
ing at a City Commission Meeting that the “important distinction here
relates to commercial speech”). That language outside the four corners
of the policy—while perhaps indicative of the First Amendment con-
cerns involving arbitrary enforcement—cannot be considered in a
vagueness inquiry. StreetMediaGroup, 79 F.4th at 1254 (explaining that
inconsistent or isolated statements by city officials are not part of the
vagueness inquiry).
The word “advertise,” however, does appear in the text of the
code. But that term is not vague; it can be understood by a person of
ordinary intelligence. StreetMediaGroup, 79 F.4th at 1254 (finding that
the term “advertising devices” is not impermissibly vague); Students En-
gaged in Advancing Tex. v. Paxton, 765 F. Supp. 3d 575, 602–03 (W.D.
Tex. 2025) (collecting cases holding that the word “advertise” is com-
monly understood and not impermissibly vague). And even though it
is not defined in the sign code, advertise may be readily defined in a
way that provides city officials with sufficient standards to enforce its
requirement. Advertise, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/advertise (last visited Nov. 18, 2025) (defin-
ing advertise as “to make the public aware of (something or someone)
especially by means of a published or broadcast notice”); See McCraw,
973 F.3d at 1081–82 (using dictionary definitions to illustrate that an
ordinance was not impermissibly vague because its definition is com-
monly understood).
The plaintiffs attempt to make a vagueness challenge based on the
alleged arbitrary enforcement that has occurred. Doc. 105 at 40. That
is insufficient. Just because arbitrary or discriminatory enforcement
may have occurred does not mean that the sign code was so vague as
to encourage that enforcement. StreetMediaGroup, 79 F.4th at 1254. Nor
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33
is it relevant that Salina appears to enforce its sign code against fewer
displays than what its plain text could or should cover. Id. The proper
vehicle for such arguments is a selective enforcement challenge, not a
vagueness one. Id. The plaintiffs did not make a selective enforcement
argument. Again, no factual disputes need resolution to find that the
plaintiffs’ vagueness claim fails. As a result, Salina’s summary judgment
motion on the plaintiffs’ Fourteenth Amendment claim is granted, and
the plaintiffs’ motion is denied.
E
Because Howard and Cozy Inn succeeded on their First Amend-
ment claims, it is necessary to determine whether they are entitled to
relief. They ask for declaratory relief finding Salina’s sign regulations
unconstitutional, and they seek to enjoin Salina and its officials from
enforcing the challenged regulations. Doc. 101 at ¶¶ 5.b–5.c. The
plaintiffs have justified only their request for a declaratory judgment.
1. The Declaratory Judgment Act authorizes federal courts to “de-
clare the rights and other legal relations of any interested party seeking
such declaration.” 28 U.S.C. § 2201(a). The Act “is remedial and does
not itself confer jurisdiction on federal courts.” Rector v. City and County
of Denver, 348 F.3d 935, 946 (10th Cir. 2003) (citing Wyoming v. United
States, 279 F.3d 1214, 1225 (10th Cir. 2002)). But where the party seek-
ing declaratory relief has satisfied the requirements for a federal court
to exercise subject-matter jurisdiction over a case, district courts enjoy
“unique and substantial discretion in deciding whether to declare the
rights of litigants.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136–
37 (2007) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)).
The plaintiffs have justified their request for declaratory relief.
They demonstrated that Salina imposes an unconstitutional distinction
between murals and signs. Because the definition of sign is unlawful,
Salina cannot make any determination as to whether a display is a mural
or sign without violating the First Amendment. See Ams. for Prosperity
Found. v. Bonta, 594 U.S. 595, 615–16 (2021) (explaining that the appli-
cation of an unconstitutional distinction is itself a First Amendment
injury). As a result, a declaratory judgment that Salina’s mural-sign dis-
tinction is unconstitutional on its face is appropriate. The plaintiffs
have also supported their request for a declaratory judgment finding
that Salina imposed an unconstitutional prior restraint as applied to
their speech. By applying that restraint, Salina has subjected the plain-
tiffs to a constitutional harm since it put Howard’s permit application
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34
on indefinite hold. Declaratory relief to address that harm is warranted.
See Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th Cir. 2006) (noting that
district courts may grant declaratory relief for past constitutional vio-
lations “which will in turn affect the parties’ current rights or future
behavior”).
2. The same cannot be said about Howard and Cozy Inn’s request
for a permanent injunction. The plaintiffs request broad relief, which
they describe as follows:
b. A prospective permanent injunction enjoining the
City, its officers, agents, employees, attorneys, servants,
assigns, and all those in active concert or participation
who receive, through personal service or otherwise, ac-
tual notice of this Court’s order, from enforcing or di-
recting the enforcement of the City’s mural-sign code
regime on its face and as applied to Plaintiffs . . . .
* * *
c. A permanent injunction prohibiting Defendant from
taking any enforcement or other action against Plain-
tiffs for displaying their mural in its current position on
The Cozy Inn, or for completing the mural on The
Cozy Inn.
Doc. 101 at ¶¶ 5.b–5.c.
Success on the merits is not enough to support a request for in-
junctive relief. A plaintiff must also show “irreparable harm unless the
injunction is issued,” that “the threatened injury outweighs the harm
that the injunction may cause the opposing party,” and that “the in-
junction, if issued, will not adversely affect the public interest.” Prairie
Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir. 2007)
(quoting Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1180 (10th
Cir. 2003)). Permanent injunctions “must be narrowly tailored to rem-
edy the harm shown.” Garrison v. Baker Hughes Oilfield Ops., Inc., 287
F.3d 955, 961–62 (10th Cir. 2002). Additionally, the Tenth Circuit has
cautioned that federal courts “must be cautious about issuing an in-
junction against a municipality.” Signature Props. Int’l Ltd. P’ship v. City of
Edmond, 310 F.3d 1258, 1269 (10th Cir. 2002). That is because “when
a party seeks injunctive relief in federal court against a state or local
government or governmental entity, concerns of federalism counsel
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35
respect for the ‘integrity and function’ of those bodies.” Id. (citations
omitted). And where a plaintiff requests both declaratory and injunc-
tive relief regarding an unconstitutional ordinance, declaratory relief is
generally sufficient where there is “no proof that [the defendant] would
not . . . acquiesce in the decision . . . holding the challenged ordinance
unconstitutional.” Poe v. Gerstein, 417 U.S. 281, 281 (1974) (quoting
Douglas v. City of Jeannette, 319 U.S. 157, 165 (1943)); accord WildEarth
Guardians v. Conner, 920 F.3d 1245, 1261 (10th Cir. 2019).
Howard and Cozy Inn have not provided any argument or pointed
to any evidence suggesting why a permanent injunction is necessary to
ensure that Salina complies with the declaratory judgments issued
against it. Accordingly, the plaintiffs’ request for a permanent injunc-
tion is denied. See Millard v. Camper, 971 F.3d 1174, 1180 n.8 (10th Cir.
2020) (affirming the district court’s grant of declaratory judgment but
denial of permanent injunctive relief because the plaintiffs did not sub-
mit any evidence “to establish the requisite factors other than success
on the merits”).
III
For the foregoing reasons, Plaintiffs’ Motion for Summary Judg-
ment, Doc. 104, and Salina’s Motion for Summary Judgment, Doc.
106, are GRANTED in part and DENIED in part, and both Motions
to Exclude Expert Testimony, Docs. 97 & 98, are DENIED.
It is so ordered.
Date: November 19, 2025 s/ Toby Crouse
Toby Crouse
United States District Judge
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