De La O, et al v. Hsing Auth El Paso

United States Court of Appeals
Fifth Circuit
F I L E D
July 18, 2005
Charles R. Fulbruge III
Clerk
REVISED JULY 18, 2005
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-50363
_______________
ROSALINA DE LA O AND
MARIA CHRISTINA RIVERA,
Plaintiffs-Appellants,
VERSUS
HOUSING AUTHORITY OF THE CITY OF EL PASO, TEXAS,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 3:02-CV-456-DB
______________________________
Before SMITH, DENNIS, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
I.
In 2000, Jesus de la O and Roberto Vas-
quez sued to challenge certain regulations of
the Housing Authority of the City of El Paso
(“HACEP”). Vasquez, who did not reside in
any HACEP facility, was a candidate for chair
of the El Paso County Democratic Party and
sought to distribute literature and to campaign
door-to-door at Sherman Oaks, a HACEP
facility. De la O resided at the Sun Plaza
Apartments (a HACEP-operated subsidized
housing facility) and complained that the re-
strictions on political campaigning infringed on
his First Amendment rights.

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2
The challenged regulations included a “tres-
pass after warning” policy and a policy re-
stricting the distribution of flyers. These
regulations were as follows:
Rule D.2. Trespassing. The development
premises are for the exclusive use and en-
joyment of the residents, members of their
households, their guests and visitors, and
such other persons who have legitimate
business on the premises, e.g., law enforce-
ment and other governmental personnel,
utility service workers, HACEP contrac-
tors, and others as authorized by HACEP.
All other persons will be regarded as tres-
passers subject to prosecution as allowed
by state or municipal ordinance.
Any person who desires access to any de-
velopment premises and any person found
on the walks, ways, playgrounds, parking
lots, drives and other common areas of the
development premises will be required by
any law enforcement or HACEP personnel
to identify himself or herself and to prove
authority to be on the development prem-
ises. Any person who refuses to provide
personal identification or cannot show au-
thority to be on the development premises
will receive a ‘trespass warning’ ordering
the person to leave the development pre-
mises or be subject to arrest and prosecu-
tion to the extent permitted by state law or
municipal ordinance.
Any person observed by law enforcement
or HACEP personnel violating any HACEP
rule, or federal, state or municipal law,
regulation, or ordinance will be ordered by
law enforcement or HACEP personnel to
leave the development premises.
Rule D.5. Notices and Flyers. HACEP
does not allow door-to-door sales. If a res-
ident desires to distribute notices or flyers
in his development, the resident must obtain
advance approval of the Development’s
Housing Manager and provide the Housing
Manager with a copy of the proposed
notice or flyer. A resident may not distrib-
ute a notice or flyer before 9:00 a.m. or
after 8:00 p.m. Under no circumstances
will a notice or a flyer be left in plain view
on a resident’s door if a resident of the unit
is not at home or declines to answer the
door. A resident distributing such flyers or
notices must do nothing to allow the flyers
or notices to become litter or which would
disrupt the peaceful use and enjoyment of
the other residents in the development or
the residents’ use of common areas.
De la O v. HACEP, No. 02-CV-456, at 2 n.3
(W.D. Tex. Mar. 24, 2004).1
The district court dismissed on summary
judgment, holding the challenged regulations
constitutional. On appeal, a panel of this court
reversed, holding that “the manner in which
HACEP seeks to accomplish its goal of crime
prevention is unreasonable under the circum-
stances herein presented,” and the regulations
were therefore unconstitutional.2 The case,
however, was voted en banc, and after briefing
1 The text excerpted above constitutes the rules
in effect at the time of the district court’s decision
in the present action. Nevertheless, the rules in
effect at the time of the first de la O (Vasquez)
action appear to have been substantially identical.
2 Vasquez v. HACEP, 271 F.3d 198, 204 (5th
Cir. 2001), vacated for reh’g en banc, 289 F.3d
350 (5th Cir. 2002), order denying motion to sub-
stitute party and granting motion to dismiss ap-
peal as moot, No. 00-50702 (5th Cir. Sept. 23,
2002), cert. denied, 536 U.S. 904 (2003).

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3
and argument had concluded, de la O died.
Because Vasquez had not filed an appeal, the
absence of a living plaintiff rendered the case
moot, and it was dismissed.
In 2002, de la O’s widow, Rosalina de la O,
and Maria Christina Rivera brought the current
suit challenging HACEP’s trespass and distri-
bution rules. On HACEP’s motion for sum-
mary judgment, the district court concluded
that (1) no genuine issue of material fact
remained for trial, (2) the HACEP facilities
constitute non-public fora, (3) the rules were
viewpoint neutral, and (4) the rules were
reasonable. As a consequence, the court held
that the rules did not violate the First Amend-
ment and dismissed the plaintiffs’ claims.
After this appeal was filed, HACEP volun-
tarily amended the rules, which now allow for
non-residents to enter facilities to engage in
political and religious activities door-to-door.
The trespassing regulation now contains a sec-
tion entitled “Political and Religious Activi-
ties,” which explicitly allows any person to en-
ter a HACEP development to engage in po-
litical campaigning and/or religious proselytiz-
ing. To take advantage of this new policy, a
non-resident must provide advance notice to
the development’s management. Additionally,
the policy no longer requires management’s
approval of a copy of a flyer in advance of its
distribution. One must still give advance
notice that he will be distributing literature.
At this court’s request, the parties submit-
ted supplemental briefing on the question
whether these amendments render the case
moot. HACEP contends the case is moot, and
plaintiffs argue that their claims survive the
amendments.
II.
The federal courts are empowered by Arti-
cle III to hear “cases and controversies.” U.S.
CONST. art. III, § 2. Accordingly, an actual,
live controversy must remain “at all stages of
federal court proceedings, both at the trial and
appellate levels.”3 That is, “[t]he requisite per-
sonal interest that must exist at the commence-
ment of the litigation (standing) must continue
throughout its existence (mootness).’”4
Therefore, a request for injunctive relief re-
mains live only so long as there is some pres-
ent harm left to enjoin. HACEP contends that
its amendment to the regulations renders de la
O’s claims moot.
A.
This logic is valid only insofar as it pertains
to the claims for injunctive relief. It is well-
established that “[c]laims for damages or other
monetary relief automatically avoid mootness,”
so long as the underlying claim remains valid
on its merits.5 If, on the other hand, the defen-
dants were immune from a damages award, it
would be unnecessary for us to consider the
constitutionality of the un-amended regula-
tions.6 Although such a result would allow us
3 ERWIN CHEMERINSKY, FEDERAL JURISDIC-
TION § 2.5.1, at 125 (4th ed. 2003).
4 United States Parole Comm’n v. Geraghty,
445 U.S. 388, 397 (1980) (quoting Henry Mona-
ghan, Constitutional Adjudication: The Who and
When, 82 YALE L.J. 1363, 1384 (1973)).
5 13A CHARLES A. WRIGHT, ARTHUR R. MIL-
LER & EDWARD H. COOPER, FEDERAL PRACTICE
AND PROCEDURE: JURISDICTION 2D § 3533.3, at
text accompanying n.2.
6 See Chase v. McMasters, 573 F.2d 1011,
1015 (8th Cir. 1978) (dismissing an otherwise vi-
able claim for damages on immunity grounds).

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4
to avoid a constitutional question,7 HACEP,
the sole defendant, is an entity comprised
wholly of members appointed by the mayor of
El Paso. As an arm of local government, not
an instrument of the state, it is not entitled to
sovereign immunity under the Eleventh
Amendment.8 The doctrine of qualified im-
munity, furthermore, is applicable only to gov-
ernment officials, not municipal entities.9 The
pleading of a colorable claim for damages thus
precludes a finding of mootness.
B.
The existence of the claim for damages,
however, does not end our inquiry. That is, al-
though we must consider the constitutionality
of the rules (pre-amendment) for purposes of
the damages claim, the plaintiffs continue to
press their claim for injunctive relief against
the amended rules. Neither side’s brief ad-
dresses the problem of our court’s reviewing,
in the first instance, the constitutionality of
regulations that, in their current form, have not
been evaluated by the district court.
One possible option for dealing with this
dilemma would be to remand for the district
court to have the first opportunity to consider
the constitutionality of the amended regula-
tions. Such an approach would be consistent
with our policy that the court of appeals will
not normally consider evidence or arguments
not presented to the district court.10
On the other hand, remanding the case po-
tentially creates further difficulties. For exam-
ple, if we were to remand and the district court
proceeded again to uphold the regulations as
valid, HACEP could again amend its regula-
tions while an appeal was pending. Such a cir-
cumstance necessarily would deprive the
plaintiffs of any possibility of appellate review.
Similar concerns have motivated the courts to
recognize an exception to the mootness doc-
trine where a challenged behavior is voluntarily
ceased by the defendant but the defendant is
capable of resuming the practice at any time.
See, e.g., United States v. W.T. Grant Co., 345
U.S. 629, 632 (1953).
Furthermore, were we to remand, the out-
come in the district court is certain. Although
the current regulations differ from those at is-
sue before the district court, the new regula-
tions are less restrictive than their predeces-
sors. Given that the district court deemed the
prior rules constitutionally permissible, that
court presumably would find that the amended
rules also pass constitutional muster. Under
such circumstances, the decision to remand,
aside from allowing for the evasion-of-review
situation set forth above, would be inefficient.
Consequently, the constitutionality of both sets
of regulations is properly before us.
III.
De la O contends that the district court im-
7 See Ashwander v. Tenn. Valley Auth., 297
U.S. 288, 346-47 (1936) (Brandeis, J., concurring)
(describing the doctrine of constitutional avoid-
ance).
8 See Bd. of Trustees v. Garrett, 531 U.S. 356,
368-69 (2001).
9 See Owen v. City of Independence, Mo., 445
U.S. 622, 653 n.37 (1980) (“[T]he justifications
for immunizing officials from personal liability
have little force when suit is brought against the
governmental entity itself.”).
10 See Nisso-Iwai Am. Corp. v. Kline, 845 F.2d
1300, 1307 (5th Cir. 1988) (“[O]ur review is con-
fined to an examination of materials before the
lower court at the time the ruling was made; sub-
sequent materials are irrelevant.”).

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5
properly disposed of the case on summary
judgment despite the existence of issues of
material fact. We review a summary judgment
de novo. Harris v. Rhodes, 94 F.3d 196, 197
(5th Cir. 1996). Where, as here, we are con-
sidering a First Amendment challenge to a
government regulation of speech in a non-pub-
lic forum, the relevant question is whether the
regulation is viewpoint-neutral and reasonable
in light of the forum’s purpose.11 Therefore,
summary judgments are appropriate only
where there is no factual issue relating to the
neutrality of a regulation (on its face or as
applied) or with respect to the government’s
proffered support for the restriction’s reason-
ableness.
The district court found that the restrictions
are content- and viewpoint-neutral, facially
and as applied. In its opinion granting sum-
mary judgment, the district court noted,
Plaintiffs have not presented one scintilla of
evidence that suggests that any political
candidates were denied access to HACEP’s
complexes because HACEP disagreed with
a particular political message. Moreover,
Plaintiffs have not presented any evidence
to suggest Rules D.2 and D.5 were en-
acted, or are being applied, to censor those
messages with which HACEP disagrees.
De la O, No. 02-CV-456, at 9. Although, in
their supplemental brief on the mootness ques-
tion, the plaintiffs reference their “challenge .
. . as to application by selective enforcement,”
they point to little evidence in the record that
could serve as the basis for disturbing the
court’s above-stated conclusion of content-
neutrality.
With respect to the facts underlying the
court’s reasonableness conclusion, on the oth-
er hand, de la O asserts that affidavits in the
record contradict the evidence proffered by
HACEP, and accepted by the district court, in
support of the reasonableness of the restric-
tions. Specifically, in holding that the rules
were reasonable, the district court relied on the
affidavit testimony of Ned Beman, HACEP’s
Director of Housing Management, who stated
that the proffered purpose of the challenged
rules is
the protection and safety of HACEP’s ten-
ants, many of which are elderly residents
and are frightened by door-to-door solici-
tors due to the fact that the majority of
those arrested on HACEP property are
non-residents engaged in narcotics distribu-
tion. Additionally, Beman’s uncontradicted
testimony reveals that the [INS] operates a
surveillance station in at least one of its
complexes, the Sun Plaza, because of the
large number of undocumented aliens who
pass through that complex.
Id. at 3.
Attempting to demonstrate that Beman’s
assertions are in fact in controversy, plaintiffs
point to the affidavit of David Marquez, the
former head of security at HACEP. In the first
place, de la O makes no attempt to suggest
which elements of Marquez’s affidavit specifi-
cally raise factual issues. We review summary
judgments de novo, using the same standard as
that employed by the district court. Namely,
once the moving party has demonstrated that
the non-moving party has no evidence such
that a reasonable jury could support a verdict
in its favor, the non-moving party must put
11 Both our conclusion that the relevant forum
is non-public in nature, and the relevant constitu-
tional inquiry, will be discussed in much greater
detail in part IV, infra.

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6
forth specific facts that demonstrate a genuine
factual issue for trial. Brennan v. Mercedes
Benz, 388 F.3d 133, 135 (5th Cir. 2004).
That is, once HACEP satisfied its burden by
proffering Beman’s testimony, the burden
shifted to de la O to demonstrate a remaining
factual controversy. The perfunctory and con-
clusional assertion that a particular affidavit
creates such a conflict normally will not suf-
fice. “Judges are not like pigs, hunting for
truffles buried in briefs.” United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
The shortcomings of plaintiffs’ briefing
aside, however, Marquez’s affidavit creates no
genuine issues of fact, but instead alleges that
Marquez’s experience did not indicate that
door-to-door solicitation had ever yielded
criminal activity. As HACEP ably points out,
however, Beman never asserted anything to
the contrary.
Rather, Beman asserted that allowing door-
to-door solicitation might permit criminals to
pose as legitimate visitors. He urged that a
purpose of the regulation was to prevent
crime. Marquez’s observation does not raise
a factual issue as to whether that purpose is
factually correct. At best, his assertions pro-
duce competing factual evidence for the court
to weigh in determining, as a matter of law,
whether the alleged purposes are served by the
regulations, a determination that is necessary
to its eventual reasonableness conclusion. No
direct factual disputes, however, are raised.
Marquez’s other statements that might pos-
sibly be construed as raising a genuine issue of
fact also fail, because they do not appear to be
based on personal knowledge, but rather on
speculation. See FED. R. CIV. P. 56(e). State-
ments made on information and belief do not
constitute proper summary judgment evidence
under rule 56(e). Bolen v. Daniel, 340 F.3d
300, 313 (5th Cir. 2003).
For example, in response to Beman’s asser-
tion that elderly residents are fearful of door-
to-door solicitors, Marquez stated that Be-
man’s position is “at best an exaggeration.”
This conclusion is not apparently based on any
specific personal knowledge on the part of
Marquez, but rather on an unsubstantiated be-
lief. Similarly, Marquez puts forth that it is his
“understanding” that the local police chief and
sheriff have declared El Paso among the coun-
try’s safest cities. In addition to being patently
not based on personal knowledge, this state-
ment does little to refute Beman’s assertions.
In sum, Marquez adds some facts to the
record that the district court could easily con-
sider when making its reasonableness conclu-
sion as a matter of law. On the other hand,
Marquez’s affidavit does not squarely cast into
doubt any of Beman’s material assertions. To
the extent that some aspects of the Marquez
affidavit do attempt to refute Beman’s posi-
tions, those passages do not constitute proper
summary judgment evidence. Marquez does
nothing to refute the premise that the rules in
question are advanced for the purpose of the
protection and safety of the HACEP residents.
With the exception of the prior-approval
provision in Rule D.5, which we address infra,
the district court therefore did not err by
resolving the case on summary judgment.
IV.
As discussed above, the restrictions now in
place require that (1) there be no distribution
of flyers or notices between 8:00 p.m. and
9:00 a.m.; (2) a tenant wishing to distribute
flyers during the permitted hours must give
advance notice to the Housing Manager;
(3) no flyers may be left on a tenant’s door if
no one answers; (4) non-residents may enter a

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7
HACEP facility for political and/or religious
activities if they provide advance notice to the
complex’s manager, in writing or by telephone;
(5) if a non-resident wishes to enter for reli-
gious or political purposes on a weekend, he
must be certain to have given notice before the
close of business on Friday; and (6) any door-
to-door activities by non-residents must be
carried out between 9:00 a.m. and 8:00 p.m.
A.
Although de la O is not claiming that she
has been prevented from engaging in any ac-
tivities, such as political campaigning, the right
to receive information is as equally protected
as is the right to convey it. See Martin v. City
of Struthers, 319 U.S. 141, 143 (1943) (strik-
ing down ordinance prohibiting door-to-door
distribution of handbills). Where regulations
restricting speech touch only activities to be
carried out on government property, however,
we review their validity under a framework
different from the one we would use if the
restriction swept more broadly.
“The existence of a right of access to public
property and the standard by which limitations
upon such a right must be evaluated differ
depending on the character of the property at
issue.” Perry Educ. Ass’n v. Perry Local
Educators Ass’n, 460 U.S. 37, 44 (1983).
There are three distinct categories of govern-
ment property.
The first category, traditional public fora,
consists of those locations that “by long tradi-
tion or by government fiat have been devoted
to assembly and debate.” Cornelius v. NAACP
Legal Defense & Educ. Fund, Inc., 473 U.S.
788, 802 (1985). Traditional public fora
include public streets and parks, “which ‘have
immemorially been held in trust for the use of
the public, and, time out of mind, have been
used for purposes of assembly, communicating
thoughts between citizens, and discussing
public questions.’” Perry, 460 U.S. at 44
(quoting Hague v. CIO, 307 U.S. 496, 515
(1939)).
The next category encompasses those areas
that, although not traditionally places reserved
for public expression, have been opened by the
state for expressive activity. These designated
public fora can include university meeting halls
and municipal theaters. See Widmar v. Vin-
cent, 454 U.S. 263, 277 (1981); Southeastern
Prods., Ltd. v. Conrad, 420 U.S. 546, 555
(1975). The remaining public property is
classified as non-public fora, a sweeping cate-
gory that includes a wide range of places such
as jails, military bases, and interstate highway
rest stops.12
Although restrictions on speech in public
fora and designated public fora are closely
scrutinized and are valid only if content-neutral
and necessary to serve a compelling govern-
ment interest, restrictions on the use of non-
public fora are reviewed with far greater de-
ference to policymakers. Perry, 460 U.S. at
46. In such fora, the state may enforce time,
place, and manner restrictions and regulations
intended to reserve the forum for its intended
purpose “as long as the regulation on speech is
reasonable and not an effort to suppress ex-
pression merely because public officials op-
pose the speaker’s view.” Id.
Because HACEP complexes are govern-
ment-owned property, analysis of the validity
of HACEP’s restrictions on First Amendment
12 See Adderley v. Florida, 385 U.S. 39, 47-48
(1966); M.N.C., Inc. v. United States Dep’t of De-
fense, 791 F.2d 1466, 1473 (11th Cir. 1986); Sen-
tinel Communications Co. v. Watts, 936 F.2d
1189, 1204 (11th Cir. 1991).

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8
activity requires us first to determine the type
of forum these complexes constitute. Public
housing facilities such as those which HACEP
operates have repeatedly been held to consti-
tute non-public fora.13
It is beyond dispute that the primary pur-
pose for the very existence of HACEP’s fa-
cilities is to provide affordable housing to
those in El Paso needing financial assistance.
Certainly, the complexes are used for social
interaction, but HACEP was not created to fa-
cilitate the expression of ideas or serve as a
meeting place for citizens. Other than making
a cursory assertion that this case is distinguish-
able from Daniel, 38 F.3d at 550 (holding that
housing projects are non-public fora), plaintiffs
make no real attempt to explain how the
complexes could be considered even desig-
nated public fora.14 It seems obvious, there-
fore, that for purposes of our further analysis,
HACEP’s facilities are non-public fora.
B.
Even in non-public fora, the state may re-
strict speech only in such a manner as is rea-
sonable and viewpoint-neutral. See Perry, 460
U.S. at 46. There is no evidence in the record
even suggesting that HACEP has discrimi-
nated among speech on the basis of the view-
point of the speaker, either on the face of the
rules or in the manner in which they have been
applied. Because the regulations are therefore
viewpoint- neutral, they survive scrutiny so
long as they are “reasonable in light of the
purpose served by the forum.” Good News
Club v. Millford Cent. Sch., 533 U.S. 98, 107
(2001).
It is difficult to see how, in light of the re-
cent amendments, de la O can claim that the
rules are unreasonable. A local government’s
proffered interestSScrime preventionSSis obvi-
ously a weighty one.15 Furthermore, Beman’s
affidavit speaking to the presence of an INS
surveillance operation onsite at one of the
complexes demonstrates that an additional
purpose of the trespassing regulation is to limit
use of the complexes as havens for undocu-
mented aliens.16
When examining the reasonableness of re-
strictions on speech, the existence of alterna-
tive channels of communication is integral.17
Obviously a number of alternative channels
exist here. Though one cannot, under the
amended regulations, distribute flyers between
8:00 p.m. and 9:00 a.m., the vast majority of
most residents’ waking hours are within the
13 See Daniel v. City of Tampa, Fla., 38 F.3d
546, 550 (11th Cir. 1994); Crowder v. Housing
Auth., 990 F.2d 586, 591 (11th Cir. 1993) (delin-
eating library of housing project as non-public
forum); Daily v. New York City Housing Auth.,
221 F. Supp.2d 390, 399 (S.D.N.Y. 2002) (hold-
ing that community center at housing project was
non-public forum by default and a designated pub-
lic forum “at times other than during the regularly
scheduled educational activities”); see also Vas-
quez, 271 F.3d at 202 (holding that the HACEP
facilities are non-public fora).
14 Indeed, at oral argument, appellants’ counsel
seemed to concede that the complexes at issue are
non-public fora.
15 See, e.g., City of Renton v. Playtime The-
aters, Inc., 475 U.S. 41, 47 (1986) (upholding zon-
ing restrictions on nude dancing where restriction
was designed to curtail crime).
16 See INS v. Delgado, 466 U.S. 210, 223
(1984) (describing government’s interest in enforc-
ing immigration laws as “enormous”).
17 See Vasquez, 271 F.3d at 208 (Barksdale, J.,
dissenting).

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9
times when such distribution is permitted.
Further, it is true that non-residents seeking
to engage in political activities, spontaneously,
on a weekend would be unable to do so. Nev-
ertheless, spontaneous activity during weekday
business hours (when advance notice could be
given to the housing manager) is permissible.
Additionally, it is not that weekend activi-
ties are prohibited; rather, non-residents must
only have the foresight to notify management,
by the close of business on Friday, of their in-
tention to go door-to-door over the weekend.
Although this undoubtedly constitutes a bur-
den, it can hardly be dubbed a constitutionally
unreasonable one in light of the alternatives
presented to potential speakers.
In Daniel, 38 F.3d at 550, the court consid-
ered a trespass statute that was nearly identical
to the restrictions used by HACEP before the
recent amendments and concluded that the
trespass statute was perfectly constitutional,
partly in light of the alternative means of com-
munication left open to speakers. That is,
even if denied access to the entire complex,
speakers would have access to adjacent streets
and sidewalks to disseminate their messages.
Under the amended regulations, the burdens
on potential speakers are significantly lessened
and are constitutionally permissible.
The plaintiffs’ brief does not distinguish
between arguments focused on the regulations
pre-amendment and those attacking the cur-
rent regulations. Regardless of which set of
regulations are being attacked, the plaintiffs
make two, ultimately unavailing, arguments
that nevertheless warrant brief discussion.
First, de la O places great emphasis on
Watchtower Bible & Tract Society v. Village
of Stratton, 536 U.S. 150 (2002), in which the
Court struck down a municipal ordinance that
required the requisition of a permit before an
individual could engage in door-to-door activi-
ties. Inasmuch as the ordinance applied to re-
ligious proselytizing, anonymous political
speech, and the distribution of handbills, rather
than commercial solicitation, the Court held
that its restrictions were invalid. Id. at 165.
As much as de la O wishes to liken her case
to Watchtower, it is inapposite. The ordinance
at stake in Watchtower applied to the entire
municipality and was not limited to non-public
fora such as the HACEP facilities. Tellingly,
the Court did not even discuss forum analysis
in its opinion. Consequently, it is obvious that
Watchtower was decided under an entirely
different rubric and is not controlling here.
Secondly, de la O argues that the HACEP
regulations must be struck down because of
their alleged overbreadth. It seems that de la
O misconstrues the nature and function of the
overbreadth doctrine. According to de la O,
[T]he regulations sweep broadly, covering
unpopular causes unrelated to commercial
transactions or to any special interest in
protecting the residents. Secondly, requir-
ing a permit as a prior condition on the ex-
ercise of the right to speak imposes here a
burden on the speech of citizens holding re-
ligious or patriotic views. Third, there is a
significant amount of spontaneous speech
that is effectively banned by the regulations.
Even a spontaneous decision to go across
the street, with a flyer, and urge a neighbor
to vote against the mayor who appoints the
HACEP board, could not lawfully be imple-
mented without first obtaining permission
from those who work for the board that is
appointed by the Mayor. This kind of re-
strictions and inhibitions [sic] cannot with-

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10
stand constitutional muster and must fail.
Although the above-quoted excerpt might
serve as a persuasive argument for the unrea-
sonableness of the statute under the applicable
rubric of forum analysis, it has little to do with
the doctrine of overbreadth. “[O]verbreadth
challenges call for relaxing familiar require-
ments of standing, to allow a determination
that the law would be unconstitutionally ap-
plied to different parties and different circum-
stances from those at hand.” Sabri v. United
States, 541 U.S. 600, 609 (2004). For exam-
ple, in Virginia v. Hicks, 539 U.S. 113, 118
(2003), the defendant sought to avoid convic-
tion by invoking the overbreadth doctrine and
challenging the constitutionality of a Virginia
trespass statute.
Hicks [did] not contend that he was en-
gaged in constitutionally protected conduct
when arrested; nor [did] he challenge the
validity of the trespass statute under which
he was convicted. Instead he claim[ed] that
the RRHA policy barring him from
Whitcomb Court [was] overbroad under
the First Amendment, and cannot be ap-
plied to himSSor anyone else.
Id.
In this case, therefore, overbreadth analysis
might be helpful to de la O were she, say, a
trespasser who was arrested pursuant to the
HACEP regulations and yet was not on
HACEP property to engage in First Amend-
ment-protected conduct, but instead was pres-
ent merely to loiter. In such a circumstance,
normal standing requirements would preclude
her from challenging the constitutionality of
the regulations. Invoking overbreadth, how-
ever, would enable her to benefit from the
same First Amendment arguments available to
those who are legitimately burdened by alleg-
edly unconstitutional restrictions.
In reality, however, de la O already has
such standing. Her claim is predicated on her
own supposed injury resulting from the alleged
unconstitutionality of the HACEP regula-
tionsSSthat is, she is unable, for example, to
receive unsolicited flyers and notices from
non-residents who have not given advance no-
tice to housing management. The overbreadth
argument, therefore, is inapplicable to de la
O’s case. The new regulations do not run
afoul of the First Amendment, and the plain-
tiffs are not entitled to injunctive relief.
V.
Even though HACEP has voluntarily
amended the challenged regulations, de la O’s
complaint seeks not only injunctive relief, but
also damages. Consequently, as discussed
above, HACEP’s voluntary amendment of the
rules does not render moot the plaintiffs’ ob-
jections to the prior regulations, so we must
consider, in addition to the constitutionality of
the amended regulations, the propriety of the
regulations as they existed at the time of the
district court’s decision.
The changes in the regulations certainly
have no effect on the nature of the forum in
question. That is, HACEP facilities have been
non-public fora both before and after the
amendments to the regulations. Similarly,
there is no indication in the record that the
previous regulations were anything but com-
pletely neutral as to content and viewpoint,
both on their face and as applied. The relevant
inquiry, therefore, goes to the “reasonable-
ness” of those regulations with reference to the
purpose of the forum. See Good News Club,
533 U.S. at 107.
Before their amendment, the regulations re-
stricted access to the HACEP complexes by

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uninvited non-residents to those “persons who
have legitimate business on the premises, e.g.,
law enforcement and other governmental per-
sonnel, utility service workers, HACEP con-
tractors, and others as authorized by HACEP.”
All others found on the property would receive
a trespass warning and would be forced to
leave or face arrest. Before the amendments,
this regulation had no provision excepting
those wishing to enter the property to engage
in political campaigning or religious proselytiz-
ing. Additionally, residents wishing to distrib-
ute notices or flyers, door-to-door, were
forced to submit a copy, to management, of
the literature to be distributed and to receive
prior approval.
Considering the constitutionality of the for-
mer regulations, in Vasquez, 271 F.3d at 206,
the panel majority concluded that the pre-
amendment regulations were “an unreasonable
restriction on the freedoms guaranteed by the
First Amendment.” In reaching its decision,
the panel relied heavily on the importance of
door-to-door campaigning in our democratic
system. Because HACEP residents “generally
conduct themselves like individuals in any oth-
er neighborhood in El Paso . . . the citizens
who reside in the HACEP developments de-
serve access to political information in the
same manner as other citizens of El Paso.” Id.
at 204.
In response, Judge Barksdale dissented,
emphasizing that the purpose of the HACEP
facilities is to provide housing, not a “meeting
place for the exchange of ideas.” Id. at 208.
Additionally, the fact that there are a multitude
of alternative channels of communication, such
as the streets and sidewalks surrounding
HACEP complexes, provides further evidence
of the reasonableness of the restrictions.
Despite an otherwise exhaustive analysis of
the issue, the exchange between the majority
and the dissent in Vasquez omitted a key as-
pect of the issue. Rule D.5, before amend-
ment, required that “[i]f a resident desires to
distribute notices or flyers in his development,
the resident must obtain advance approval of
the Development’s Housing Manager and pro-
vide the Housing Manager with a copy of the
proposed notice or flyer.” De la O argues now
on appeal that “[t]he Court has held that a
requirement that one must register before he
undertakes to make a speech to enlist support
for a lawful movement is quite incompatible
with the requirements of the First Amend-
ment.” See Thomas v. Collins, 323 U.S. 516,
539-40 (1945). The Supreme Court has
repeatedly reaffirmed that prior registration
requirements are troubling in the free speech
context.18
The district court, in its otherwise compre-
hensive and persuasive order, gave scant atten-
tion to the specific advance-approval require-
ment of Rule D.5. The court did, however,
make the blanket statement (which we have
previously noted) that “Plaintiffs have not pre-
sented any evidence to suggest Rules D.2 and
D.5 were enacted, or are being applied, to cen-
sor those messages with which HACEP dis-
agrees.”
That statement is somewhat called into
question by summary judgment evidence from
an affiant named Valverde, alleging that she
had a falling out with HACEP management
and certain fellow residents regarding her
presidency of the residents’ association, stating
that “I as a courtesy advised Linda Pena,
18 See Watchtower, 536 U.S. at 164; Hynes v.
Mayor & Council, 425 U.S. 610, 629 n.4 (1976);
Eisenstadt v. Baird, 405 U.S. 438, 455 (1972)
(Douglas, J., concurring).

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Assistant Project Manager that I was going to
leaflet the flyer herein contained as Exhibit ‘B.’
I did so in order to in order [sic] defend my
name. Later that day I was instructed by
Linda Pena, to stop leafleting. She said that
the order came from Bernie Rodriguez, Pro-
ject Manager.”
It is undeniable that the Constitution forbids
the use of a leafleting policy to quell certain
points of view. It is therefore necessary to
vacate and remand, but only as to the former
version of Rule D.5, so the district court can
determine whether it was used to discriminate
on the basis of viewpoint, and if so, whether
there was compensable injury. It may be that,
given the remainder of our determinations
regarding the past and present rules, the plain-
tiffs will no longer find it advisable to pursue
this very small portion of the case, but that is
for the district court and parties to resolve.
VI.
In summary, despite HACEP’s voluntary
decision to amend the challenged regulations,
a live controversy remains. With the exception
of the former Rule D.5 regarding prior ap-
proval, the present and past regulations pass
constitutional muster because the housing fa-
cilities are public fora.
The HACEP facilities are non-public fora
and, thus, restrictions on speech within their
confines are valid so long as they are view-
point-neutral and reasonable in light of the
purpose of the forum. The amended regula-
tions dispense with most of the problems to
which the Vasquez majority pointed. Under
the deferential “reasonableness” standard, they
are constitutional. The prior regulations pre-
sent a closer question but, in light of the over-
riding need to provide safe housing, they are
constitutional with the exception noted above.
The judgment is AFFIRMED, except that the
portion of the judgment that blesses the former
Rule D.5 is VACATED and REMANDED for
any further proceedings that may be needed.

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