United States Court of Appeals,
Eleventh Circuit.
No. 96-8701.
STATEWIDE DETECTIVE AGENCY, Plaintiff-Appellee,
v.
Zell MILLER in his official capacity as Governor and Thurbert E. Baker, in his official capacity
as Attorney General, Defendants-Appellants.
Clayton County, Defendant.
June 20, 1997.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:96-CV-
1033-WBH), Willis B. Hunt, Judge.
Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST*, Senior District Judge.
BARKETT, Circuit Judge:
Zell Miller, in his official capacity as Governor of Georgia, and Thurbert E. Baker, in his
official capacity as Attorney General of Georgia (collectively "Miller"), appeal the district court's
order granting Statewide Detective Agency, Inc.'s ("Statewide") motion for a preliminary injunction
enjoining the enforcement of §§ 33-24-53(c) and (e) of the Official Code of Georgia ("O.C.G.A.").
Statewide, a private detective agency in Georgia, filed an action under 42 U.S.C. § 1983 against
Miller and Clayton County, Georgia, after the County denied Statewide's request for copies of motor
vehicle accident reports based on § 33-24-53(c).1 Section 33-24-53(c) provides:
With respect to a motor vehicle accident, no employee of any law enforcement agency shall
allow any person, including an attorney, health care provider, or their agents, to examine or
obtain a copy of any accident report or related investigative report when the employee knows
or should reasonably know that the request for access to the report is for commercial
solicitation purposes. No person shall request any law enforcement agency to permit
examination or to furnish a copy of any such report for commercial solicitation purposes.
For purposes of this subsection, a request to examine or obtain a copy of a report is for
"commercial solicitation purposes" if made at a time when there is no relationship between
the person or his principal requesting the report and any party to the accident, and there is
no apparent reason for the person to request the report other than for purposes of soliciting
*
Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.
1
Statewide voluntarily dismissed the County from this suit on July 5, 1996.
a business or commercial relationship. All persons, except law enforcement personnel and
persons named in the report, shall be required to submit a separate written request to the law
enforcement agency for each report. Such written request shall state the requestor's name,
address, and the intended use of the report in sufficient detail that the law enforcement
agency may ascertain that the intended use is not for commercial solicitation purposes. The
law enforcement agency shall file each written request with the original report. No person
shall knowingly make any false statement in any such written request.
O.C.G.A. § 33-24-53(c) (1991). Subsection (e) provides, "Any person who violates any provision
of this Code section shall be guilty of a misdemeanor involving moral turpitude."
In its Complaint, Statewide alleged that § 33-24-53(c) is an unconstitutional prior restraint
on First Amendment commercial speech and sought a permanent injunction against its enforcement.
Along with the Complaint, Statewide filed a motion for a temporary restraining order and a
preliminary injunction against enforcement of §§ 33-24-53(c) and (e), which the district court
granted after finding it likely that the statute unconstitutionally burdens the First Amendment. In
this action, Statewide seeks to enjoin only the criminal enforcement of § 33-24-53(c), that is, we are
asked only to address the constitutionality of making it a misdemeanor, under § 33-24-53(e), for any
person to request a law enforcement agency to permit examination or to furnish a copy of an
accident report for commercial solicitation purposes.
A plaintiff moving for a preliminary injunction must show: (1) a substantial likelihood of
success on the merits; (2) a substantial threat of irreparable injury; (3) that the threatened injury
to the plaintiff outweighs the injury to the nonmovant; and (4) that the injunction would not disserve
the public interest. Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir.1991).
The narrow question before us is whether §§ 33-24-53(c) and (e), by criminalizing requests for
public records for commercial solicitation purposes, implicates the First Amendment. We find that
it does. See Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S.
557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); Speer v. Miller, 15 F.3d 1007 (11th Cir.1994).
The district court's grant of a preliminary injunction is reviewed under an abuse of discretion
standard. Speer v. Miller, 15 F.3d 1007, 1009 (11th Cir.1994). However, if the district court
misapplied the law, its conclusions are subject to broad review. E. Remy Martin & Co. v. Shaw-Ross
International Imports, 756 F.2d 1525, 1529 (11th Cir.1985). "By definition, ... the abuse of
discretion standard allows a range of choice for the district court, so long as that choice does not
constitute a clear error of judgment." In re Rasbury v. Internal Revenue Service, 24 F.3d 159, 168
(11th Cir.1994) (citations and quotation marks omitted); see also Purcell v. BankAtlantic Financial
Corp., 85 F.3d 1508, 1513 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 178, 136 L.Ed.2d 118
(1996) (quoting same definition); Macklin v. Singletary, 24 F.3d 1307, 1311 (11th Cir.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995) (same). Based on a review of the
record and the statute in question, we conclude that the district court did not abuse its discretion in
granting the preliminary injunction in this case.
AFFIRMED.