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Kleinman v. City of San Marcos

A junked vehicle that is located in a place where it is visible from a public place or public right-of-way is detrimental to the safety and welfare of the general public, tends to reduce the value of private property, invites vandalism, creates fire hazards and constitutes an attractive nuisance creating a hazard to the health and safety of minors and is detrimental to the economic welfare of the city by producing urban blight adverse to the maintenance and continuing development of the City and is a public nuisance. 5th U.S. Circuit Court of Appeals, No. 08-50960, 02-10-2010

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Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.

This appeal concerns whether a junked-vehicle ordinance designed to eliminate eyesores and promote public order, SAN MARCOS, TEX., CODE OF ORDINANCES § 34.196(a), can be applied to a wrecked Oldsmobile 88 that has been put to use as a cactus planter, colorfully painted, and adorned with the words “make love not war.” Appellants contend that the car is an expressive artwork and that interference with this display violates their rights under the First Amendment and the Visual Artists Right Act (VARA). 17 U.S.C. § 166A(a)(3). The district court rejected both claims, then went further and ordered the owner to comply with a removal order of the San Marcos municipal court. We also reject Appellants’ constitutional and statutory claims but vacate the district court’s attempt to enforce the municipal court order.*fn1

I. BACKGROUND

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