Matthew Dowd et al v. City of Los Angeles, No. 2:2009cv06731 - Document 287 (C.D. Cal. 2013)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS AND DEFENDANTS CROSS MOTIONS FOR SUMMARY JUDGMENT 158 , 168 by Judge Dean D. Pregerson. (lc). Modified on 8/7/2013. (lc).
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Matthew Dowd et al v. City of Los Angeles Doc. 287 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 MATTHEW DOWD; PETER DEMIAN; EDWARD LA GROSSA; ANTHONY BROWN; NATHAN PINO, WILLIE LEE TURNER; DAVID “ZUMA DOGG” SALTSBURG; THOMAS BURRUM JNR; MARVIN SIMS; JESSE BROWN; LOUIE GARCIA; RENE CASTRO, 15 Plaintiff, 16 v. 17 18 CITY OF LOS ANGELES, a municipal corporation, 19 20 21 Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-06731 DDP (SSx) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ AND DEFENDANT’S CROSS MOTIONS FOR SUMMARY JUDGMENT [Dkt. Nos. 158 & 168] Presently before the court are Plaintiffs’ and Defendant’s 22 Cross Motions for Summary Judgment. 23 submissions, heard oral argument, and ordered supplemental 24 briefing, the court adopts the following order. 25 I. BACKGROUND Having considered the parties’ 26 A. Factual History 27 The Venice Beach Boardwalk (the “Boardwalk”) is a major 28 tourist attraction in the City of Los Angeles. LAMC § Dockets.Justia.com 1 42.15(A)(1)(a). It is “historically significant as a traditional 2 public forum for its performance and visual artists, as well as 3 other free speech activity.” Id. During the summer and on weekends, 4 the Boardwalk is filled with street performers, including 5 “instrumental musicians, singers, jugglers, acrobats, mimes, 6 comics, magicians, prophets, fortune tellers, and other assorted 7 entertainers.” City of Los Angeles Dep’t of Recreation & Parks, 8 http://www.laparks.org/venice/venice.htm (last visited Nov. 8, 9 2009). Plaintiffs are thirteen street performers and artists who 10 make their living on the Venice Beach Boardwalk by, among other 11 things, dancing, singing, painting, unicycling, playing music, as 12 well as selling or accepting donations for items related to their 13 performances, such as CDs, works of art, and T-shirts. 14 Over the years, the defendant the City of Los Angeles (the 15 “City”), has adopted and amended a number of versions of Los 16 Angeles Municipal Code (“LAMC”) § 42.15, in order to address its 17 concern that unregulated vending negatively effects the character, 18 safety, and economic vitality of the Venice Beach Boardwalk and in 19 response to litigation. In 2005, the City suspended the 2004 20 version of § 42.15, in response to the legal challenge raised in 21 Venice Food Not Bombs v. City of Los Angeles, No. CV 05-04998 DDP 22 (SS) (C.D. Cal. 2005), and later adopted an amended version of the 23 ordinance as part of a settlement agreement in 2006. The settlement 24 agreement was the culmination of intensive meetings and 25 negotiations between the parties and community stakeholders, with 26 the aid of the Court, in an effort to draft an ordinance that would 27 address the City's concerns about unregulated vending while 28 /// 2 1 protecting the rights of those who engage in activities protected 2 by the First Amendment on Venice Boardwalk. 3 The City's adoption of the 2006 version of § 42.15 did not 4 end all controversy concerning the vending ordinance and further 5 litigation ensued. On January 14, 2009, this Court ruled in Hunt 6 v. City of Los Angeles, 601 F. Supp. 2d 1158, 1170-72 (C.D. Cal. 7 2009), that the 2004 version of LAMC § 42.15(C) was 8 unconstitutionally vague, because the exception to the vending 9 ban for “merchandise constituting, carrying or making a religious 10 political, philosophical, or ideological message or statement 11 which is inextricably intertwined with merchandise,” presented “a 12 real risk of arbitrary and discriminatory enforcement because it 13 fail[ed] to provide sufficient guidance to those who would 14 enforce it.” The Court did not reach the merits of the 15 plaintiffs’ facial void-for-vagueness challenge to a similar 16 provision in the 2006 version of the ordinance, finding that the 17 plaintiffs lacked standing to raise the claim. Hunt, 601 F. 18 Supp. 2d at 1175. 19 In the face of such litigation, the City again amended § 20 42.15, with the latest draft taking effect on May 19, 2008. In 21 enacting the 2008 version of LAMC § 42.15, the City found that 22 (1) tourists are deterred from visiting the Boardwalk because 23 they are harassed by unregulated vendors, (2) the limited amount 24 of space on the Boardwalk should be assigned in order to avoid 25 frequent altercations, (3) vendors and their equipment impede the 26 ingress and egress of emergency and public safety vehicles, and 27 (4) unregulated vending creates excessive and annoying noise on 28 the Boardwalk that negatively affects nearby workers, visitors, 3 1 and residents. LAMC § 42.15(A)(1)(b)(i)-(vii). In response to 2 these findings, LAMC § 42.15 (2008) provides that “[e]xcept as 3 specifically allowed in this section, no person shall engage in 4 vending” along the Venice Beach Boardwalk. Id. § 42.15(A). 5 The 2008 version of the ordinance divides much of the 6 available space in the heart of the Boardwalk into individual 7 spaces designated as P-Zone spaces and I-Zone spaces. Id. § 8 42.15(2). In the P-Zone spaces, “persons can perform, engage in 9 traditional expressive speech, and petitioning activities, and 10 vend the following expressive items: newspapers, leaflets, 11 pamphlets, bumper stickers, patches, buttons, or books created by 12 the vendor or recordings of the vendor’s own performances . . . 13 .” Id. § 42.15(2)(a). In the I-Zone spaces, “persons may engage 14 in activities permissible in the P-Zone, and also engage in 15 vending of expressive items created by the vendor, or the vending 16 of expressive items that are inextricably intertwined with the 17 vendor’s message . . . .” Id. § 42.15(2)(b). 18 With certain limited exceptions, anyone wishing to use a P- 19 Zone or I-Zone space during Peak Season must apply for an annual 20 permit and enter into a lottery system by which spaces are assigned 21 each day. Program Rules at pp. 2-3. The person to whom the space is 22 assigned has priority to use the space. But, after 12:00 p.m., 23 anyone (with or without a permit) may use any unoccupied space, so 24 long as she engages only in activities approved for the P-Zones and 25 relinquishes the space to the permit-holder if she returns. 26 Outside of the P- and I-Zones, anyone may engage in any 27 activity permitted in the P-Zones and vend expressive items 28 “inextricably intertwined with the vendor’s message,” so long as 4 1 she does not “set up a display table, easel, stand, equipment, or 2 other furniture, use a pushcart or other vehicle . . . .” Id. § 3 42.15(D)(1)(a). On the West side of the Boardwalk, outside of 4 the P- and I-Zones, anyone can engage in any permitted P-Zone 5 activity as long as it is “not vending and does not substantially 6 impede or obstruct pedestrian or vehicular traffic, subject to 7 reasonable size and height restrictions on any table, easel, or 8 other furniture . . . .” Id. § 42.15(D)(1)(b). 9 The ordinance and Program Rules also include noise 10 regulations. LAMC § 42.15(F)(1) provides that noise levels must 11 not exceed seventy-five decibels when measured at a distance of 12 twenty-five feet away or ninety-six decibels when measured from 13 one foot away between nine o’clock in the morning and sunset. 14 Furthermore, LAMC § 42.15(F)(4) bans the use of amplified sound 15 anywhere on the Boardwalk except in specially designated P-Zone 16 spaces between 17th Avenue and Horizon Avenue and between Breeze 17 Avenue and Park Avenue. The Program Rules clarify that amplified 18 sound “is permitted only in the designated spaces in the P-Zones in 19 the locations specified in Section 42.15 between 9:00 a.m. and 20 sunset, and is prohibited after sunset and before 9:00 a.m.” 21 Program Rules at p. 4. 22 Following the City's adoption of the 2008 version of § 23 42.15, the Ninth Circuit decided Berger v. City of Seattle, 569 24 F.3d 1029 (9th Cir. 2009) (en banc), holding that a 25 designated-performance-space and permitting system established by 26 the City of Seattle for the Seattle Center was facially 27 unconstitutional under the First Amendment. In so holding, the 28 court noted that the Supreme Court “has repeatedly concluded that 5 1 single-speaker permitting requirements are not a constitutionally 2 valid means of advancing [the government's] interests because, 3 typically (1) they sweep too broadly, (2) they only marginally 4 advance the government's asserted interests, and (3) the 5 government's interests can be achieved by less intrusive means.” 6 Id. at 1038 (internal citations omitted). While acknowledging 7 that such Supreme Court decisions involved permitting 8 requirements for door-to-door solicitation, the court held that 9 “it stands to reason that such [single-speaker permitting] 10 requirements would be at least as constitutionally suspect when 11 applied to speech in a public park, where a speaker's First 12 Amendment protections reach their zenith, than when applied to 13 speech on a citizen's doorstep where substantial privacy 14 interests exist.” Id. at 1039. As a result, the court stated 15 that it was “not surprising that we and almost every other circuit 16 to have considered the issue have refused to uphold 17 registration requirements that apply to individual speakers or 18 small groups in a public forum.” Id. 19 Shortly after the Ninth Circuit published its decision in 20 Berger, 569 F.3d 1029, Plaintiffs filed this lawsuit raising facial 21 and as-applied challenges to the 2006 and 2008 versions of LAMC 22 §42.15 and its implementing Public Expression Permit Program Rules 23 (“Program Rules”) (revised April 2, 2008), arguing that they 24 violate the First and Fourteenth Amendments. The facial challenges 25 to the 2008 ordinance at issue here appear to be threefold: First, 26 Plaintiffs argue that the permitting and designated performance 27 space system is not a reasonable time, place and manner restriction 28 and grants unbridled discretion to licensing authorities. Second, 6 1 Plaintiffs assert that the ordinance's use of the phrase 2 “inextricably intertwined” renders it unconstitutionally vague. 3 Third, Plaintiffs claim that the amplified sound ban is not a 4 reasonable time, place, and manner restriction. 5 In order to voice their concerns over the ordinance and its 6 enforcement, Plaintiffs Dowd and Saltsburg began attending Los 7 Angeles City Council meetings and speaking during public comment 8 sessions. Plaintiffs Dowd and Saltsburg raise facial and as-applied 9 challenges to the City Council's Rules of Decorum. 10 B. Procedural History 11 On October 8, 2009, the City filed a motion to dismiss the 12 facial challenges to LAMC § 42.15 (2008) on the grounds that the 13 ordinance is constitutional on its face. 14 motion to dismiss with respect Plaintiffs’ facial challenge to the 15 permitting system and the amplified sound ban, and granted it with 16 respect to Plaintiffs’ facial challenge to the vending ban, holding 17 that they did not have standing to pursue such a claim. 18 16, 2009, Plaintiffs filed a motion for preliminary injunction. 19 The court granted the injunction as to the amplified sound ban and 20 the permitting and lottery system, and denied it as to the rules of 21 decorum, the limitation of boardwalk activities at sunset, the 22 height prohibition, and the rotation requirement. 23 The court denied the On October The parties have now filed cross-motions for summary judgment 24 on the constitutionality of the 2008 Ordinance, the amplified sound 25 ban, the limitation of boardwalk activities after sunset, the 26 height limitation, and the rules of decorum. 27 /// 28 /// 7 1 2 II. LEGAL STANDARD Summary judgment is appropriate where the pleadings, 3 depositions, answers to interrogatories, and admissions on file, 4 together with the affidavits, if any, show “that there is no 5 genuine dispute as to any material fact and the movant is entitled 6 to judgment as a matter of law.” 7 seeking summary judgment bears the initial burden of informing the 8 court of the basis for its motion and of identifying those portions 9 of the pleadings and discovery responses that demonstrate the Fed. R. Civ. P. 56(a). A party 10 absence of a genuine dispute of material fact. 11 Catrett, 477 U.S. 317, 323 (1986). 12 the evidence must be drawn in favor of the nonmoving party. 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 14 If the moving party does not bear the burden of proof at trial, it 15 is entitled to summary judgment if it can demonstrate that “there 16 is an absence of evidence to support the nonmoving party’s case.” 17 Celotex, 477 U.S. at 325. 18 Celotex Corp. v. All reasonable inferences from See Once the moving party meets its burden, the burden shifts to 19 the nonmoving party opposing the motion, who must “set forth 20 specific facts showing that there is a genuine issue for trial.” 21 Anderson, 477 U.S. at 256. 22 party “fails to make a showing sufficient to establish the 23 existence of an element essential to that party’s case, and on 24 which that party will bear the burden of proof at trial.” 25 477 U.S. at 322. 26 that a reasonable jury could return a verdict for the nonmoving 27 party,” and material facts are those “that might affect the outcome 28 of the suit under the governing law.” Summary judgment is warranted if a Celotex, A genuine issue exists if “the evidence is such 8 Anderson, 477 U.S. at 248. 1 There is no genuine issue of fact “[w]here the record taken as a 2 whole could not lead a rational trier of fact to find for the non- 3 moving party.” 4 475 U.S. 574, 587 (1986). 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., It is not the court’s task “to scour the record in search of a 6 genuine issue of triable fact.” 7 1279 (9th Cir. 1996). 8 support clearly. 9 F.3d 1026, 1031 (9th Cir. 2001). Keenan v. Allan, 91 F.3d 1275, Counsel has an obligation to lay out their Carmen v. San Francisco Unified Sch. Dist., 237 The court “need not examine the 10 entire file for evidence establishing a genuine issue of fact, 11 where the evidence is not set forth in the opposing papers with 12 adequate references so that it could conveniently be found." 13 III. DISCUSSION Id. 14 A. 2006 Ordinance 15 The statute of limitations for suits under 18 U.S.C. § 1983 is 16 governed by state law applying to tort actions for the recovery of 17 damages for personal injuries. 18 (9th Cir. 1999). 19 such personal injuries is two years. 20 “Generally, the statute of limitations begins to run when a 21 potential plaintiff knows or has reason to know of the asserted 22 injury.” 23 Bd., 509 F.3d 1020, 1026-27 (9th Cir. 2007), quoting De Anza 24 Properties X, Ltd. v. County of Santa Cruz, 936 F.2d 1084, 1086 25 (9th Cir. 1991). 26 limitations runs from the date that the challenged statute or 27 ordinance went into effect, regardless of when a plaintiff learns 28 of the enactment. Silva v. Crain, 169 F.3d 608, 610 In California, the statute of limitations for Cal. Civ. Proc. Code § 335.1. Action Apartment Ass'n, Inc. v. Santa Monica Rent Control For facial challenges, the two year statute of Action Apartment Ass’n, Inc., 509 F.3d at 1027 9 1 (9th Cir. 2007)(internal citation and quotation marks omitted) 2 (“Given the general rule that the statute of limitations begins to 3 run when a potential plaintiff knows or has reason to know of the 4 asserted injury, it stands to reason that any facial injury to any 5 right should be apparent upon passage and enactment of a statute.”) 6 The 2006 Ordinance became effective on March 25, 2006. (City 7 Mot., Exh. 301.) Plaintiffs filed this action on September 16, 8 2009. 9 more than a year after the statute of limitations period had 10 11 Thus, their facial challenge to the 2006 Ordinance was filed expired and such a challenge is time-barred. The as-applied claims are likewise time-barred. Any acts that 12 took place prior to September 16, 2007, and that give rise to an 13 as-applied challenge would be time-barred. 14 Ordinance was suspended in July 2007 (FAC ¶ 50), any act of 15 enforcement of the 2006 Ordinance would have taken place prior to 16 July 2007, and would necessarily be time barred. 17 18 Because the 2006 For these reasons, the court GRANTS summary judgment in favor of Defendant on all claims relating to the 2006 ordinance. 19 B. Permit and Lottery System 20 “A permitting requirement is a prior restraint on speech and 21 therefore bears a ‘heavy presumption’ against its 22 constitutionality.” 23 omitted). 24 systems “stem from the significant burden they place on free 25 speech. 26 written application, and the temporal hurdle of waiting for the 27 permit to be granted may discourage potential speakers.” Id. at 28 1037-38 (internal citation and quotation marks omitted). Even Berger, 569 F.3d at 1037 (internal citation “The presumptive invalidity and offensiveness” of such Both the procedural hurdle of filling out and submitting a 10 1 where the government has a significant interest, the Supreme Court 2 has concluded that “single-speaker permitting requirements are not 3 a constitutionally valid means of advancing those interests 4 because, typically, (1) they sweep too broadly . . . (2) they only 5 marginally advance the government’s asserted interests, . . . and 6 (3) the government’s interests can be achieved by less intrusive 7 means.” 8 addressed the validity of single-speaker permitting requirements 9 for speech in a public forum, it stands to reason that such Id. at 1038. “Although the Supreme Court has not 10 requirements would be at least as constitutionally suspect when 11 applied to speech in a public park, where a speaker’s First 12 Amendment protections reach their zenith.” 13 “venerable tradition of the park as public forum has . . . a very 14 practical side to it as well: parks provide a free forum for those 15 who cannot afford newspaper advertisements, television 16 infomercials, or billboards.” 17 F.3d 1200, 1205 (9th Cir. 1994). Id. at 1039. The Grossman v. City of Portland, 33 18 Nonetheless, “local governments can exercise their substantial 19 interest in regulating competing uses of traditional public fora by 20 imposing permitting requirements for certain uses.” 21 Food Not Bombs v. Santa Monica, 450 F.3d 1022, 1038 (9th Cir. 22 2006). 23 governing the time, place, or manner of speech. 24 at 1036. 25 restriction, a permit requirement applying to First Amendment 26 activity in a public park must (1) be content neutral, (2) be 27 narrowly tailored to serve a significant government interest, and 28 (3) leave open ample alternative channels of expression.” Santa Monica A local government may issue reasonable regulations Berger, 569 F.3d “To be upheld as a constitutional time, place or manner 11 1 Grossman, 33 F.3d at 1205. 2 the Government bears the burden of proving the constitutionality of 3 its actions.” 4 803, 804 (2000). 5 Agr. Ass’n, 387 F.3d 850, 858-63 (9th Cir. 2004). 6 “When the Government restricts speech, United States v. Playboy Entm't Grp., Inc., 529 U.S. See also Berger, 569 F.3d at 1048; Kuba v. 1-A This court granted a preliminary injunction with respect to 7 the permit and lottery system, finding that in light of the Ninth 8 Circuit’s decision in Berger v. City of Seattle, 569 F.3d 1029 9 (2009), “the permit requirement is likely to violate the First 10 Amendment.” 11 system employed by the 80-acre Seattle Civic Center which, among 12 other things, required street performers to obtain permits before 13 performing anywhere at the Center and to wear a badge while 14 performing, and limited street performances to sixteen designated 15 locations. 16 that the permitting system promoted the government’s interests in 17 deterring wrongful conduct by threatening the loss of a permit and 18 by identifying rulebreakers so as to notify them of alleged 19 violations. 20 accomplished just as effectively by requiring a person observed 21 violating the rules to identify herself and an after-the-fact 22 penalty, such as the loss of the right to perform or a fine. 23 at 1043. 24 (2010 Order at 26.) Id. at 1035. Id. at 1044. Berger concerned a permitting The court in Berger rejected the argument The court held that such goals could be Id. The Berger court did not strike down the sixteen designated 25 performance locations, noting that “the delineation of performance 26 areas, particularly in the most sought-after locales, might pass 27 constitutional muster on a more developed factual record.” 28 1045. Id. at The court held that the City submitted undisputed evidence 12 1 that before the location restriction, there were weekly complaints 2 from park tenant about street performers blocking entranceways and 3 egresses, and the location rule did promote the City’s interest in 4 reducing these problems. 5 as to whether the location restriction left “ample alternative 6 channels for communication.” 7 Id. at 1049. It found an issue of fact Id. The permitting and lottery system in this case differs in 8 several respects from the system struck down in Berger. 9 street performers may still perform anywhere else on the Boardwalk, First, 10 although they are limited in terms of what items they can use 11 (i.e., they cannot use pushcarts or tables elsewhere). 12 lottery system assigns spaces to a particular person (or large 13 performance group) for a particular day. 14 each day any person, with or without a permit, may use an 15 unoccupied P-Zone space and any person with an I-Zone permit may 16 use an unoccupied I-Zone space, so long as she relinquishes the 17 space should the lottery winner return. 18 applicant seeks an I-Zone permit, she is required to disclose (1) 19 her name and mailing address, (2) a description of the goods or 20 merchandise for which she seeks a permit, and (3) a declaration 21 that the goods or merchandise are expressive items inextricably 22 intertwined with the applicant’s message. Second, the However, after 12:00 p.m. Third, insofar as an 23 This court determined that the permitting and lottery system 24 was likely unconstitutional because “[t]here is no explanation as 25 to why this system manages conflicting claims to limited space any 26 more effectively than a simple first-come-first-served rule.” 27 (2010 Order at 26.) The court now considers whether the City has 28 13 1 met its burden of showing that the permit system is narrowly 2 tailored to promote its interest. 3 4 1. Content-Neutrality “A regulation is content-based if either the underlying 5 purpose of the regulation is to suppress particular ideas or, if 6 the regulation, by its very terms, singles out particular content 7 for differential treatment.” 8 966, 974 (9th Cir. 2009)(quoting Berger, 569 F.3d at 1051). 9 Reed v. Town of Gilbert, AZ, 597 F.3d Plaintiffs argue that the Ordinance is content-based because 10 in the P-Zone spaces, persons can perform, engage in traditional 11 expressive speech, and petition, but can vend only certain 12 expressive items: “newspapers, leaflets, pamphlets, bumper 13 stickers, patches, buttons, or books created by the vendor or 14 recordings of the vendor’s own performances.” 15 In the I-Zone spaces “persons may engage in activities permissible 16 in the P-Zone, and also engage in vending of expressive items 17 created by the vendor, or the vending of expressive items that are 18 inextricably intertwined with the vendor’s message.” 19 41.15(2)(b). 20 examine the content of the speech in order to determine whether it 21 is permissible, because an officer must consider what matter 22 qualifies as “newspaper,” “leaflet” or “pamphlet”; whether an item 23 has been “created, written or composed by the vendor”; whether an 24 item is “inherently communicative”; whether an item has “nominal 25 utility apart from its communication”; and other aspects of the 26 speech. 27 28 LAMC § 42.15(2)(a). Id. § Plaintiffs argue that these require an officer to (Dowd Mot. at 13-14.) Plaintiffs argue that such determinations are content-based by analogy to Forsyth County v. Nationalist Movement, 505 U.S. 123 14 1 (1992). 2 that allowed the county to adjust the fee for demonstration permit 3 “in order to meet the expense incident to the administration of the 4 Ordinance and to the maintenance of public order in the matter 5 licensed.” 6 was content based because “the fee assessed will depend on the 7 administrator’s measure of the amount of hostility likely to be 8 created by the speech based on its content. 9 express views unpopular with bottle throwers, for example, may have 10 11 There, the county of Forsyth, Georgia, passed an ordinance Id. at 127. The Court determined that the ordinance to pay more for their permit.” Those wishing to Id. at 134. Here, none of the characteristics an officer must consider is 12 based in the subject matter of the message. 13 piece of literature is a “pamphlet” or a t-shirt, for instance, 14 involves a consideration of form rather than content; the message 15 conveyed is immaterial. 16 object is inherently communicative, the inquiry is only whether the 17 object is inherently communicating any message, not whether the 18 object is communicating a message on a specific topic. 19 v. City of Menlo Park, 146 F.3d 629, 633-34, where a city 20 prohibited the posting of signs on public property with the 21 exception of signs containing certain content (real estate open 22 houses, safety and traffic notices, etc.), here the Ordinance does 23 not target or privilege any particular message. 24 is not content based in the traditional sense of privileging or 25 discriminating against certain topics. 26 obvious whether certain objects are inherently communicative, even 27 the close cases would depend not on the topic of the message but on 28 the nature of the object. Determining whether a While an officer must discern whether an 15 Unlike Foti Thus the Ordinance While it is by no means 1 2 3 The court finds that the 2008 Ordinance is not content based. 2. Narrow Tailoring The City has met its burden in demonstrating that the 2008 4 Ordinance responds to a significant government interest. 5 Ordinance contains the following findings: 6 7 8 9 10 11 12 13 14 15 16 17 18 The 2008 The amount of space on the Boardwalk that is available for performing and visual artists and for political advocacy is limited due to the size of the Boardwalk and the large crowds of visitors that the Boardwalk attracts. Due to the limited amount of space, unregulated vending along the Boardwalk prevents many persons from engaging in performance, art, advocacy or other expressive activities. Prior to the City’s Board of Recreation and Parks Commission establishing a program for assignment of spaces, unregulated vending resulted in conflicting claims for the available space. There were numerous altercations over the locations and amounts of space that any one person or organization could use. Frequently, the altercations became violent, requiring law enforcement response to preserve the public peace. Persons wishing to secure spaces often arrived prior to dawn and created loud noises in setting up their displays, thereby disturbing the public peace and requiring a law enforcement response. Unregulated, the Boardwalk became a place where only the strongest and earliest arrivals could secure space to exercise their rights of free expression without threat of intimidation. It is, therefore, necessary to regulate the use of the limited space on the Boardwalk to prevent conflicting claims for the space and to allocate the limited space available fairly to all who desire to use it for lawful purposes. 19 LAMC (2008) § 42.15(A)(1)(b)(ii). The court accepts these findings 20 as evidence of a significant government interest. “As a general 21 matter, courts should not be in the business of second-guessing 22 fact-bound empirical assessments of city planners.” City of Los 23 Angeles v. Alameda Books, Inc., 535 U.S. 425, 451 (2002)(J. Kennedy 24 concurring). See also Alameda Books, Inc. v. City of Los Angeles, 25 631 F.3d 1031, 1042-43 (9th Cir. 2011). Plaintiffs have presented 26 no evidence creating an issue of fact in this respect. 27 28 16 1 The City must also present evidence that the Ordinance was 2 narrowly tailored to advance this interest. On its face, the 3 Ordinance was crafted to remedy the problems identified in the 4 findings. 5 space allocation system which assigned performers to particular 6 spots to effectively distribute the limited space of the Boardwalk. 7 The permits combined with the lottery system provided a mechanism 8 for officers to resolve disputes about space allocation in a 9 neutral manner. Unlike the ordinance in Berger, the 2008 Ordinance was a The lottery system was also designed to discourage 10 pre-dawn arrival at the Boardwalk in order to secure a space, and 11 to expand the pool of potential performers to include speakers who 12 might not assert themselves in a first-come-first-serve situation. 13 The ordinance thus appears to be carefully crafted to resolve the 14 problems identified in the findings. 15 precisely to the substantive problems which legitimately concern 16 the Government.” 17 U.S. 288, 297 (1984)(internal citations and quotation marks omitted). 18 “[T]he regulation responds Clark v. Cmty. for Creative Non-Violence, 468 The City presents some evidence that the permit system managed 19 space more effectively than the first-come-first-serve system. 20 City cites a declaration from Victor Jauregui, Senior Recreation 21 Director II within the City of Los Angeles Department of Recreation 22 and Parks, stating that “[t]he space allocation system with the 23 lottery eliminated many of the prior disturbances and problems over 24 spaces. 25 dawn or who were not the most aggressive to have a chance to be 26 assigned a space at the Boardwalk.” 27 Jauregui also stated that with space assignment through the permit 28 and lottery, “City staff had a neutral way to determine who was The It also allowed those who could not arrive at the crack of 17 (Jauregui Decl. ¶ 8.) 1 entitled to the space by looking at the lottery results.” 2 9.) 3 (Id. ¶ Plaintiffs present evidence that a performer who did not 4 obtain a permit through the lottery would not have a permit for a 5 seven days or had to wait until 12:00 p.m. to obtain a space. 6 (Dowd Decl. ¶ 10.) 7 e.g. LaGrossa Decl. ¶ 10, stating that he obtained spots 60% of the 8 time.) 9 because he could not use his amplifier in all spots and did not Performers did not always obtain spots. (See Plaintiff Demian asserts that his income was reduced 10 always get a spot where amplification was permitted. 11 ¶ 33.) 12 (Demian Decl. Plaintiffs also present declarations to the effect that the 13 Ordinance increased tensions among them. 14 14 (“Because of us being cramped together like that [in the large 15 performance spaces], there would be a lot of anger sometimes”), 16 LaGrossa Decl. ¶ 9 (“[T]hey put us like crabs in a barrel, and so 17 naturally there’s going to be fights.”), Brown Decl. ¶ 11, noting 18 that there were still disputes with the permit system, but now they 19 are between “people trying to get spaces to sell things.”).1 20 21 See e.g. Demian Decl. ¶ Plaintiffs’ evidence shows that there was some tension on the Boardwalk among performers, but this does not create an issue of 22 1 23 24 25 26 27 28 The City objects to these statements as opinion rather than fact and therefore inappropriate for declarations. (City’s Objections to Plaintiffs’ Declarations.) See Fed. R. Civ. P. 56(c) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”) and L.R. 7-7 (“Declarations shall contain only factual, evidentiary matter and shall conform as far as possible to the requirements of F.R.Civ.P. 56(c)(4).”) The court finds that the declarations are based on the performers’ first-hand knowledge of the interactions among performers on the Boardwalk and is therefore admissible. 18 1 fact as to whether altercations decreased; as the City points out, 2 there could be fewer altercations and noise disturbances alongside 3 some tensions and altercations among performers. 4 City is not required to achieve its substantial interest with the 5 least speech-restrictive alternative. 6 Plaintiffs’ evidence is not persuasive in demonstrating that the 7 Ordinance was speech restrictive; it shows instead that Plaintiffs 8 had objections to certain aspects of the Ordinance. 9 necessarily amount to a restriction on speech. 10 In addition, the Clark, 468 U.S. at 299. That does not 3. Alternative Channels of Expression 11 As the court pointed out in its 2010 Order, another important 12 difference between this Ordinance and the one in Berger is that in 13 Berger, the park required a permit for performers who wished to 14 perform anywhere in the park. 15 for those performers who wish to set up their equipment and remain 16 in a one-mile stretch of the Boardwalk. 17 express themselves without using a table or other equipment within 18 that one-mile area. 19 after noon each day, provided they relinquish the space if the 20 person to whom it was assigned appears. 21 themselves up on the Boardwalk outside that one-mile area without 22 obtaining a permit.2 23 24 Here, the permit is required only Performers are free to They may occupy spaces that are not occupied Additionally, they may set The Ordinance thus provides alternative channels of expression. 25 2 26 27 28 In itself, the fact that performers could set up tables for speech outside the one-mile area would not provide a sufficient alternative channel of communication. Although one mile is a limited slice of the Boardwalk, it is nonetheless a significant area, especially for a person who wished to express a message to as broad an audience as possible. 19 1 2 4. Vagueness challenge The court previously found that Plaintiffs do not have 3 standing to challenge the vending ban as void for vagueness because 4 of its exception for expressive items that are ‘inextricably 5 intertwined’ with the speaker’s message. 6 court found that “Plaintiffs engage in activities that do not fall 7 within the ambit of the anti-vending regulations, as they are 8 street performers who engage in traditional expressive speech, vend 9 expressive items they have created, and sell recordings of their (2010 Order at 11.) The 10 own performances. 11 been chilled from performing or vending any items based on the 12 anti-vending regulations.” 13 therefore dismissed Plaintiffs’ facial void-for-vagueness challenge 14 to the vending ban and its exception for expressive items 15 “inextricably intertwined” with the speaker’s message. 16 The court nonetheless indicated that “insofar as the Plaintiffs 17 argue that the permitting scheme grants unbridled discretion to 18 licensing officials because of its incorporation of the 19 ‘inextricably intertwined’ standard, that claim survives the City’s 20 motion to dismiss.” 21 In fact, none of the Plaintiffs claims to have (2010 Order at 11-12.) The court Id. at 13. (Id. at 13 n.2.) Plaintiffs assert that “[o]n the more fully developed record, 22 Plaintiffs have standing to challenge the vending ban as void for 23 vagueness. 24 ambit of the anti-vending regulations despite the fact that they 25 are also street performers who engage in traditional expressive 26 speech. 27 or vending any items based on the police harassment and enforcement 28 of the anti-vending regulations.” Plaintiffs engage in activities that fall within the Plaintiffs do claim to have been chilled from performing 20 (Dowd Mot. at 24.) They also 1 assert that they are challenging the vagueness of other terms in § 2 42.15, including “inherently communicative,” “nominal utility apart 3 from its communication,” “some expressive purpose,” and “dominant” 4 non-expressive purpose. (Id.) 5 Despite these assertions, Plaintiffs fail to distinguish these 6 claims from the claims dismissed by this court in the 2010 Order or 7 to point to those portions of the “more fully developed record” 8 that purportedly give them standing to challenge the vending ban 9 despite the previous dismissal of this claim. Noting that 10 “Plaintiffs’ Declarations amply demonstrate a ‘serious interest in 11 subjecting themselves to’ the challenged measure, and that the City 12 is ‘seriously intent on enforcing the challenged measure’ against 13 them” without pointing to factual evidence in the record is 14 insufficient to establish a genuine issue of material fact. 15 Reply at 4.) 16 “[g]iven the limitations of space, all of those facts [in the 17 Statement of Uncontroverted Facts and Conclusions of Law] cannot be 18 repeated here and the Court is encouraged to review the 19 Declarations and the Statement in detail.” 20 is not the court’s task “to scour the record in search of a genuine 21 issue of triable fact.” 22 Cir. 1996). 23 clearly. 24 (9th Cir. 2001). 25 evidence establishing a genuine issue of fact, where the evidence 26 is not set forth in the opposition papers with adequate references 27 so that it could conveniently be found." (Dowd Nor is it sufficient for Plaintiffs to state that (Dowd Mot. at 2.) It Keenan v. Allan, 91 F.3d 1275, 1278 (9th Counsel has an obligation to lay out the support Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 The court “need not examine the entire file for 28 21 Id. 1 The court finds that Plaintiffs’ vagueness challenge was 2 previously dismissed and that Plaintiffs have failed to present 3 evidence sufficient to cause the court to take up the issue again. 4 C. Amplified Sound Ban 5 The use of a sound amplification device is protected by the 6 First Amendment. Saia v. New York, 334 U.S. 558, 561 (1948). 7 discussed above, “the City has the burden of justifying the 8 restriction on speech.” 9 1196, 1201 (9th Cir. 2009). As Klein v. City of San Clemente, 584 F.3d In order for a regulation of amplified 10 sound to comport with the First Amendment, it must (1) be 11 “‘justified without reference to the content of the regulated 12 speech,’” (2) be “‘narrowly tailored to serve a significant 13 government interest,’” and (3) “‘leave open ample alternative 14 channels for communication of the information.’” Ward v. Rock 15 Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. 16 for Creative Non-Violence, 468 U.S. 288, 293 (1984)). 17 LAMC § 42.15(F)(4) and the Program Rules ban the use of 18 amplified sound anywhere on the Boardwalk except in specially 19 designated P-Zone spaces between 17th Avenue and Horizon Avenue and 20 between Breeze Avenue and Park Avenue. 21 42.15(D)(2)(c) and (F).) 22 were in the area in which amplified sound was permitted. 23 ordinance also allowed the City to issue special events permits for 24 amplified sound. 25 (2008 Ordinance, §§ Fifty-six out of the 105 P-Zone spaces The (2008 Ordinance, § 42.15(F)(6).) The City now asserts that the amplified sound ban is intended 26 not only to protect residential areas from excess noise, but also 27 to balance the expressive needs of various Boardwalk users. 28 Ord. 42.15(A)(1)(b). (2008 It points out that there are other noise 22 1 regulations applicable to the Boardwalk as a whole and that the 2 2008 Ordinance addressed the use of amplified sound as “one of 3 numerous issues involving vendors and performances” on the western 4 side of the Boardwalk. 5 (City Reply at 21.) The court finds that although the city has an interest in 6 balancing the expressive needs of various Boardwalk users and in 7 regulating the noise levels on the Boardwalk, this ordinance is not 8 narrowly tailored because it targets only one aspect of the 9 problem, namely, the sound emanating from the west side of the 10 Boardwalk. 11 or from visitors. 12 It does not address sound emanating from the east side The amplified sound ban thus places the burden of achieving 13 the government’s purpose upon one group. 14 restriction need not be the least restrictive or least intrusive 15 means available to achieve the government’s legitimate interests, 16 the existence of obvious, less burdensome alternatives is a 17 relevant consideration in determining whether the ‘fit’ between 18 ends and means is reasonable.” 19 at 1041. 20 Boardwalk are banned from using any amplification. 21 intrudes on those performers’ attempts to make themselves heard. 22 See e.g. Demian Decl. ¶ 9 (stating that the amplified sound ban 23 made it too difficult to perform acoustically because it is 24 impossible to “project” enough to be heard). 25 restrictive alternative to the absolute amplified sound ban is a 26 decibel limit that would apply to all users of the Boardwalk, on 27 both sides. 28 25 feet and 96 dBA at one foot. “[A]lthough the chosen Berger v. City of Seattle, 569 F.3d Performers in the eight most northern blocks of the This ban The obvious less The Boardwalk already has a decibel limit of 75bDA at LAMC § 42.15(F). 23 If the overall 1 sound level is the problem the Ordinance is meant to address, the 2 obvious less restrictive alternative is for the City to decrease 3 the maximum decibel limit on both sides of the Boardwalk, rather 4 than barring all amplification by performers on the west side. 5 The court finds that the amplified sound ban is not narrowly 6 tailored and therefore facially unconstitutional. 7 summary judgment in favor of Plaintiffs on this issue. 8 The court GRANTS 3. Height Limitation 9 The 2008 Ordinance includes a height restriction: “No person 10 shall place or allow any item (except an umbrella or other sun 11 shade) exceeding four feet above ground in any designated space . . 12 . .” 13 Public Expression Program Regulations, p.6.) 14 equipment, this section of the Ordinance arguably constrains 15 communicative conduct and therefore is subject to a challenge under 16 the First Amendment. 17 rel. County of Los Angeles, 329 F.3d 683, 687 (9th Cir. 2003). 18 Again, the City bears the burden of demonstrating that the 19 Ordinance “advances a substantial governmental interest and that it 20 is narrowly tailored to prevent no more than the exact source of 21 the ‘evil’ it seeks to remedy.” 22 262 F.3d 856, 863 (9th Cir. 2001)(quoting Frisby v. Schultz, 487 23 U.S. 474, 485 (1988)). (Section 42.15 (2008) G(2)(b). See also Program Rules, Although regulating Vlasak v. Superior Court of California ex Edwards v. City of Coeur d’Alene, 24 The 2008 Ordinance includes the following findings: 25 (iv) The vendors and their equipment may impede the ingress and egress of emergency and public safety vehicles by creating physical obstacles to emergency response and administration of aid to those in need of immediate medical attention and to victims of criminal activity. It is therefore necessary to regulate vendors and their use of equipment to avoid interference with 26 27 28 24 1 2 emergency response vehicles that provide assistance to individuals with medical needs and victims of criminal activity. 3 ... 4 (vi) Unregulated vending causes visual clutter/blight along the Boardwalk, impedes the views of the beach and the Pacific Ocean, and threatens the City’s ability to attract tourists and preserve businesses along the Boardwalk. It is therefore necessary to regulate the number of vendors, the size of their equipment, and displays, and the location of vending activity. 5 6 7 8 9 Sec. 42.15 A.1.(b). As discussed above, the City has the burden to demonstrate 10 that the Ordinance is narrowly tailored to promote a significant 11 interest. 12 interest, as stated in the Ordinance’s findings, in facilitating 13 emergency access and reducing visual clutter. 14 Inc. v. Harris, 298 F.3d 1037, 1045 (9th Cir. 2002) (“both the 15 Supreme Court and this Court have found that aesthetics can be a 16 substantial governmental interest.”); Members of City Council of 17 City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805 18 (1984)(“It is well settled that the state may legitimately exercise 19 its police powers to advance esthetic values.”). 20 The City presents evidence that it has a substantial See Honolulu Weekly, Plaintiffs argue that the height restriction is not narrowly 21 tailored to achieve those interests because it imposes a 22 significant burden on performers, who often use microphone stands, 23 musical instruments, and other props such as ladders, which are 24 higher than four feet. 25 insofar as it makes an exception for umbrellas. 26 They also argue that it is irrational In Vlasak, cited by the City, the Ninth Circuit upheld Los 27 Angeles Municipal Code section § 55.07, which prohibits the 28 “carrying or possession of certain ‘demonstration equipment’25 1 rectangular wooden pieces more than 1/4 inch thick and 2 inches 2 wide, or non-rectangular pieces thicker than 3/4 inch.” 3 329 F.3d at 686. 4 signs attached to wooden or plastic handles, this ordinance was 5 “narrowly tailored to meet the substantial interest in public 6 safety,” that “[t]he dimension restrictions . . . are not 7 substantially broader than necessary to achieve the government 8 interest,” and that the ordinance did not “deprive[] demonstrators 9 of alternative means of communication.” Vlasak, The court found that, unlike a broad ban on all Id. at 690. The court 10 found that the ordinance was narrowly tailored because it advanced 11 the public safety interest by limiting the size of handles that 12 could be used as weapons while still allowing demonstrators to 13 communicate their message in the form they chose (placards). 14 Here, the City does not explain why a four feet restriction, 15 as opposed to a three feet or a six feet restriction, advances its 16 interest. 17 speech is involved, . . . the over-breadth of a statute must not 18 only be real, but substantial as well, judged in relation to its 19 plainly legitimate sweep.” 20 615 (1973). 21 not substantially overbroad; Plaintiffs have some limitations on 22 their performances - they cannot use microphones of a certain 23 height, and performers accustomed to performing from ladders are 24 unable to do so - but the limitations leave ample channels of 25 communication while advancing the City’s interests. 26 limitations placed on Plaintiffs’ performances are not so 27 substantial as to lead the court to micromanage the City’s 28 regulation of public safety and aesthetics. Nonetheless, “particularly where conduct and not merely Broadrick v. Oklahoma, 413 U.S. 601, Here, the regulation, while limiting some speech, is 26 The 1 2 The court GRANTS summary judgment in favor of Defendants on this issue. 3 4. Rotation Requirement 4 The 2008 Ordinance allocates 5 of the 105 spaces in the P-Zone 5 to large act/performance groups that draw an audience of 25 or more 6 persons on average. 7 state: 8 9 10 11 12 (2008 Program Rules at 2.) The Program Rules the space(s) may be rotated once every hour beginning at 11:00 a.m., if more than one performer or group wants the same space. Example: if two group/performers want space D, they would alternate performances on an hourly basis beginning at 11:00 a.m. Id. at 6. The 2008 Ordinance includes findings, discussed above, that 13 the Boardwalk is a limited space, and that altercations took place 14 to obtain available space. 15 accommodate groups that would attract large numbers of people, the 16 Ordinance set aside a certain number of spaces into which 17 performers could rotate. 18 with the rotation requirement, including the fact that there is no 19 cap on the number of performers who can be in the rotation; the 20 ordinance privileges “popular” speech attracting 30 or more people 21 over less popular speech; performers must predict how large their 22 audience will be; police have too much discretion to determine 23 whether the act attracted a large enough audience; and it is vague, 24 leading to arbitrary enforcement by the police. LAMC Section 42.15 (1)(b)(ii). To Plaintiffs point to a litany of problems3 25 26 3 27 28 Plaintiffs do not cite to any evidence in their papers. Once again, it is not the court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 27 1 The court finds that Plaintiffs have not created an issue of 2 fact as to the narrow tailoring of the rotation requirement. 3 discussed with respect to the height requirement, the court finds 4 that the rotation requirement does not burden substantially more 5 speech than necessary. 6 The court GRANTS summary judgment to Defendants on this issue. 7 5. Sunset Requirement 8 9 As The Program Rules restrict all activity in designated spaces to the period between 9 a.m. and sunset. (2008 Program Rules at 10 6.) 11 requirement is to “ensure [the Boardwalk] is clean and safe for the 12 crowds of people that will visit the following day.” 13 Jauregui ¶ 10.) 14 time, place, and manner restriction because sunset times change 15 each day, the marine layer prevents visual observation of the 16 sunset, tourists leave the park after - but not before - sunset, 17 and other parks close one hour after sunset. 18 Plaintiffs assert that it would be more reasonable for the park to 19 close one hour after sunset. 20 allegations, unsupported by evidence, amount to evidence that the 21 requirement burdens more significantly speech than necessary and is 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// The City has presented evidence that the purpose of the (Decl. Plaintiffs allege that this is not a reasonable (Id.) 28 (FAC ¶ 43.) It is not clear how these 1 not narrowly tailored.4 2 fact and GRANTS summary judgment in favor of the City. The court finds that there is no issue of 3 D. Rules of Decorum 4 Plaintiffs seek a declaratory judgment that certain of the Los 5 Angeles City Council Rules of Decorum violate the First Amendment 6 and Article 1 § 2 of the California Constitution. 7 for Relief, ¶¶ 2,3.) 8 "the challenged sections of the Council Rules are 'unconstitutional 9 as-applied,’ as well as an order expunging all violations and (Compl., Prayer They also seek a declaratory judgment that 10 citations of those rules "in any and all files maintained by the 11 City." 12 preliminary injunction against the Rules of Decorum. 13 for Relief, ¶ 1.) 14 15 (Id., Prayer for Relief, ¶¶ 4, 5.) They also seek a (Id., Prayer 1. Facial Challenge Under Ninth Circuit law, city council meetings, "once opened, 16 have been regarded as public forums, albeit limited ones." 17 v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). 18 council can regulate not only the time, place, and manner of speech 19 in a limited public forum, but also the content of speech -- as 20 long as content-based regulations are viewpoint neutral and 21 enforced that way." 22 (9th Cir. 2010). White "A Norse v. City of Santa Cruz, 629 F.3d 966, 975 However, rules of decorum are constitutional if 23 4 24 25 26 27 28 Again, Plaintiffs do not refer in their papers to any evidence on this point in their moving papers or opposition. It appears that the evidence they have on this point is presented in response to the City’s Uncontroverted Fact number 19, which states the purpose of this section of the Ordinance as being to make the Boardwalk clean and safe for the following day and to reduce noise in the adjacent residential neighborhoods. Plaintiffs present over four pages of purported evidence, but it is non-responsive, as it deals primarily with the continuing presence of conflicts among performers. 29 1 they “only permit[] a presiding officer to eject an attendee for 2 actually disturbing or impeding a meeting.” 3 Costa Mesa, 718 F.3d 800, 811 (2013)(quoting Norse, 629 F.3d at 4 976). 5 Acosta v. City of In Norwalk, the Ninth Circuit considered a facial challenge to 6 council rules nearly identical to those at issue in this case. 7 relevant portion of the rule was the following: 8 The Each person who addresses the Council shall not make personal, impertinent, slanderous or profane remarks to any member of the Council, staff or general public. Any person who makes such remarks, or who utters loud, threatening, personal or abusive language, or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any Council meeting shall, at the discretion of the presiding officer or a majority of the Council, be barred from further audience before the Council during that meeting. 9 10 11 12 13 Norwalk, 900 F.2d at 1424. The Ninth Circuit did not consider the 14 constitutionality of the rule on its face and held that because the 15 rule was "readily susceptible" to be interpreted as requiring "that 16 removal can only be ordered when someone making a proscribed remark 17 is acting in a way that actually disturbs or impedes the meeting," 18 it did not violate the First Amendment. Id. 19 Here, the Rule in question is similar to the rule in Norwalk:5 20 Persons addressing the Council shall not make personal, impertinent, unduly repetitive, slanderous or profane remarks to the Council, any member of the Council, staff or general public, nor utter loud, threatening, personal or abusive language, nor engage in any other disorderly conduct that disrupts, disturbs or otherwise impedes the orderly conduct of any Council meeting. 21 22 23 24 25 26 27 28 5 The two are distinguishable in that the Norwalk rule uses "which" where the L.A. rule uses "that," a point which could be significant if a strict grammatical interpretation were performed. See notes 2 and 3 below. 30 1 (FAC ¶ 64; City Mot. Exh. 306, Rules of the Los Angeles City 2 Council As Amended (July 2009), Ch. 1 Rule No. 12(a).) 3 There are at least three possible interpretations of the Rule. 4 First, reading the sentence as three disjunctive clauses separated 5 by "nor," it could be taken to state that certain kinds of speech 6 are not allowed (personal, impertinent, repetitive, slanderous, 7 threatening, etc.) and additionally that "disorderly conduct" that 8 is disruptive is not allowed. 9 disruption" required for there to be a breach of the rule. Read this way, there is no "actual A 10 second interpretation is that the final clause ("that disrupts, 11 disturbs or otherwise impedes the orderly conduct of any Council 12 meeting") could be taken to modify all three sets of speech and 13 behavior,6 thus imposing an "actual disturbance" requirement on all 14 types of speech and conduct listed. 15 "nor engage in any other disorderly conduct that disrupts, disturbs 16 or otherwise impedes the orderly conduct of any Council meeting" - 17 could be taken to indicate that the first two types of speech or 18 conduct (profanities, slander, abusive language, etc.) are a type 19 of conduct that inherently "disrupts, disturbs, or otherwise 20 /// 21 Third, the final clause - /// /// 22 6 23 24 25 26 27 28 This is an ungrammatical reading of the Rule. "That" introduces "a clause defining or restricting the antecedent, and thus completing its sense." Oxford English Dictionary online, "that, pron.2." Sept. 2012. Oxford Univ. Press. <http://www.oed.com/view/Entry/200178?rskey=U6kljt&result=3&isAdvan ced=false>. (Nov. 29, 2012.) Here, as a grammatical matter it is clear that "that" is restricting the meaning of "disorderly conduct," not of the clauses preceding the sentence's final "nor." Nonetheless, given the widespread confusion concerning the use of "that" and "which," the court will not base a determination of whether the rule is "readily susceptible" to a certain interpretation on that interpretation’s grammatical precision. 31 1 impedes the meeting," and that other, similarly disruptive conduct 2 is also prohibited.7 3 Only the second construction, which imposes an actual 4 disruption requirement on all prohibited speech, allows the Rule to 5 survive constitutional scrutiny because is otherwise viewpoint 6 discrimination. 7 "personal, impertinent and slanderous remarks will be critical. 8 one could be deemed impertinent while praising the City Council." 9 (Plaintiff's Mot. at 32.) As Plaintiffs point out, by their nature, No "The council members should [know] that 10 the government may never suppress viewpoints it doesn't like." 11 Norse, 629 F.3d at 979 (Kozinski, J. concurring). 12 because the Ninth Circuit interpreted a similar statute and found 13 that it resisted a facial challenge, the court here likewise holds 14 that the Rule is constitutional insofar as it is interpreted by the 15 Council as requiring an "actual disruption" separate from the bare 16 violation of the Rule. 17 Nonetheless, The court notes, however, that this is an uncomfortable 18 result. 19 would be unconstitutional viewpoint discrimination. 20 F.3d at 812 (holding that a city council rule of decorum 21 prohibiting “any personal, impertinent, profane, insolent, or 22 slanderous remarks” without requiring an actual disruption is 23 unconstitutional). 24 speech covered by the first two parts of the rule would also 25 qualify under the broader (and more likely constitutional) final 26 category of "disorderly conduct that disrupts, disturbs or Without the "actual disruption" requirement, the Rule Acosta, 718 With the "actual disruption" requirement, any 27 7 28 As discussed below, the video evidence suggests that City Council members interpret the rule in this way. 32 1 otherwise impedes the orderly conduct of any Council meeting." The 2 restrictions on personal, impertinent, and slanderous remarks 3 therefore serve no purpose in the Rule; they are remnants of 4 unconstitutional restrictions saved from invalidity only by the 5 qualification of "actual disruption" that arguably applies to them. 6 Those restrictions on speech are thus at best superfluous. 7 worst, they chill constitutionally protected political speech. 8 rule contains a list of prohibited (and unconstitutionally 9 restrictive) types of speech that is then, much less explicitly, At The 10 qualified by the actual disruption requirement and thereby rendered 11 constitutional. 12 run more smoothly, it verges on violating the core right of 13 citizens to criticize their democratically elected officials. 14 as discussed below, because of its phrasing, it is easy to apply 15 the Rule in an unconstitutional manner. 16 Although the Rule may help the Council meetings And, Nonetheless, Ninth Circuit precedent compels upholding the 17 Rule insofar as it is interpreted to include an "actual disruption" 18 requirement.8 19 must be applied scrupulously in order to avoid violating the First 20 Amendment. 21 For the reasons discussed above, this requirement 2. As-applied Challenge 22 "Norwalk permits the City to eject anyone for violation of the 23 City's rules--rules that were only held to be facially valid to the 24 8 25 26 27 28 This said, the City would do well to consider revising the Rules of Decorum to make it clear that an actual disruption is required before a speaker can be ejected. As discussed below, the court finds, based on the video evidence, that the Rules of Decorum are unconstitutional as applied. Revising the Rules of Decorum to indicate that an actual disruption is required would provide clear guidance to the City Council to help it conduct its business within the bounds of the First Amendment. 33 1 extent that they require a person actually to disturb a meeting 2 before being ejected." 3 976. 4 actually disturbed the City Council meeting prior to being ejected. The court now considers whether Plaintiffs Dowd and Saltsburg 5 6 Norse v. City of Santa Cruz, 629 F.3d at a. Actual Disruption Standard The Ninth Circuit has not defined “actual disruption” with 7 precision. 8 peace or fighting words. 9 may disrupt a Council meeting by speaking too long, by being unduly Actual disruption need not resemble a breach of the Norwalk, 900 F.2d at 1425. "A speaker 10 repetitious, or by extended discussion of irrelevancices. 11 meeting is disrupted because the Council is prevented from 12 accomplishing its business in a reasonably efficient manner." 13 at 1426. 14 The Id. Although the standard for disruption is relatively low, a 15 disruption must in fact have occurred. 16 actual disruption. 17 technical disruption, virtual disruption, nunc pro tunc disruption, 18 or imaginary disruption. 19 to include non-disruption to invoke the aid of Norwalk.” 20 629 F.3d at 976 (9th Cir. 2010). 21 explained that 'in our system, undifferentiated fear or 22 apprehension of disturbance is not enough to overcome the right to 23 freedom of expression.’" 24 quoting Tinker v. De Moines Ind. Cmty. Sch. Dist., 393 U.S. 503, 25 508 (1969). 26 “Actual disruption means It does not mean constructive disruption, The City cannot define disruption so as Norse, "The Supreme Court long ago Id. at 979 (Kozinski, J. concurring.), In some cases, the line between actual and potential 27 disruption is difficult to draw. 28 Control Bd., 67 F.3d 266 (9th Cir. 1995), the Ninth Circuit held In Kindt v. Santa Monica Rent 34 1 that it was permissible to remove a man who had previously 2 disrupted proceedings of the same meeting when his "cohort" and 3 frequent partner in disruption made an obscene gesture "which 4 threatened to start the disruption all over again." 5 However, in Norse, the Ninth Circuit held that there had not 6 clearly been a disruption when a man "gave the Council a silent 7 Nazi salute" and was then ejected and arrested, rejecting the 8 City's definition of "disturbance" as "any violation of its decorum 9 rules." 10 Id. at 271. Norse, 629 F.3d at 976. At a minimum, the disturbance must be something more than the 11 bare violation of a rule. 12 considered two jury instructions indicating that actual disruption 13 is measured by an effect on the audience and that profanity without 14 more is not an actual disruption. 15 given instance of alleged misconduct substantially impairs the 16 effective conduct of a meeting depends on the actual impact of that 17 conduct on the course of the meeting.” . . . “A speaker may not be 18 removed from a meeting solely because of the use of profanity 19 unless the use of profanity actually disturbs or impedes the 20 meeting.”). 21 In Acosta, the Ninth Circuit favorably 718 F.3d at 810 n.5 (“Whether a The power to determine when a disruption has occurred has been 22 placed in the hands of the moderator. 23 ("The role of a moderator involves a great deal of discretion. 24 Undoubtedly, abuses can occur, as when a moderator rules speech out 25 of order simply because he disagrees with it, or because it employs 26 words he does not like.") 27 a Councilmember who is attacked. 28 Kozinski concurring) ("Though defendants point to Norse's reaction Norwalk, 900 F.2d at 1426 The disruption cannot be the reaction of Norse, 629 F.3d at 979 (CJ. 35 1 to Councilman Fitzmaurice as the 'disruption' that warranted 2 carting him off to jail, Norse's calm assertion of his 3 constitutional rights was not the least bit disruptive. 4 Amendment would be meaningless if Councilman Fitzmaurice's petty 5 pique justified Norse's arrest and removal.") 6 The First b. As-applied Challenge 7 The Ninth Circuit has identified two types of as-applied 8 challenges. 9 statute's constitutionality in one particular fact situation while The first “paradigmatic type” is “one that tests a 10 refusing to adjudicate the constitutionality of the law in other 11 fact situations.” 12 Cir. 2011)(citation and internal quotation marks omitted). 13 second type is “based on the idea that the law itself is neutral 14 and constitutional in all fact situations, but that it has been 15 enforced selectively in a viewpoint discriminatory way. 16 challenge . . . is dependent on the factual evidence provided as to 17 how the statutory scheme has in fact operated vis-à-vis the 18 plaintiffs.” 19 Hoye v. City of Oakland, 653 F.3d 835, 854 (9th The Such a Id. (citation and internal quotation marks omitted). Plaintiffs have not presented evidence of the second type of 20 as-applied challenge. 21 other types of policy evidence would be required for the court to 22 extrapolate from the video, transcript, and declaration evidence 23 and find that there is a policy, rather than isolated instances, of 24 unconstitutional application. 25 /// 26 /// 27 /// 28 Deposition evidence of Council members or /// 36 1 The court therefore considers the specific instances in which 2 Plaintiffs contend that the Rules of Decorum were unconstitutional 3 as applied.9 4 5 c. Incidents The first three incidents took place on March 4, 2008, August 6 13, 2008, and June 12, 2009, prior to the amendment of the Rules on 7 July 29, 2009. 8 applies to the Rules prior to their amendment and to the amended 9 Rules. (FAC ¶ 64.) Plaintiffs assert that their challenge The FAC is ambiguous on this point. However, nowhere in 10 their briefing do Plaintiffs present the pre-2009 Rules, which may 11 or may not contain the same provisions Plaintiffs are challenging. 12 The court therefore declines to consider the first three incidents. 13 Plaintiffs have identified approximately ten10 additional 14 incidents involving Plaintiffs David Saltsburg (“Zuma Dogg” or 15 “Dogg”) and Matt Dowd when they attended City Council meetings. 16 (Joint Statements RE Incidents 4 - 13.) 17 video recordings and transcripts of the incidents provided by the 18 parties. 19 citizen speech on the part of the members of the City Council. 20 Dowd and Dogg were frequent speakers at City Council meetings and 21 were ejected from only a handful of them. 22 that each identified incident involves an unconstitutional 23 application of the Rules of Decorum. 24 represented a fraction of Dowd and Dogg’s appearances at City 25 Council meetings does not mitigate the constitutional violations. 26 Additionally, although the court does not have enough evidence to 27 28 The court has reviewed the The evidence often demonstrates significant tolerance of 9 However, the court finds The fact that these incidents The court requested supplemental briefing identifying these incidents. 10 Incidents 8 and 9 appear to be substantially overlapping. 37 1 determine that the City has a policy of applying the Rules in an 2 unconstitutional fashion, it appears from the video evidence that 3 the City Council and the representative of the City Attorney do not 4 always require a disruption beyond the breach of the Rules of 5 Decorum. 6 profanity as an actual disruption per se. 7 Additionally, they appear to interpret the use of For instance, in Incident No. 4., on Sept. 2, 2009, Plaintiff 8 Dowd addresses the City Council and says “First of all, your 9 president is pathetic and hopeless and is not doing a very good job 10 and you need to get together and lose her because, because see when 11 Eric is not here - sit down [Councilman] LaBonge, just sit down.” 12 (Joint Statement RE Incident No. 4 at 1.) 13 discuss the incident with City Attorney Dion O’Connell who advises 14 them as follows: “The speaker should not engage in personal attacks 15 on the councilmembers. 16 City services and the councilmembers but not engage in personal 17 attacks.” 18 (Id.) DOWD: 19 20 21 22 PERRY: 23 24 25 26 LABONGE: PERRY: LABONGE: PERRY: Council members then He can speak about the performance of the Dowd begins speaking again. See when it’s just me it’s I, Matthew Dowd and when I’m talking to you that’s the part that’s not allowed but when I’m talking about you that’s the third person and you did it to me yesterday so I’m filing on the decorum. I got to sue for the 42.15 you are still using the words inextricably intertwined but there’s no guidelines for what that fucking means. I am tired. . . . Thank you very much, that is the end of your time now.11 He should be removed. Okay, thank you. He should be removed from the meeting. Mr. Officer if you can please escort Mr. Dowd to the door. Thank you very much. . . . O’CONNELL:It is within the Council’s discretion to ban 27 11 28 The video appears to indicate that Dowd had 15 seconds remaining on his clock. 38 1 2 3 PERRY: ZINE: 4 5 him from attending, or from speaking, he can attend the meetings but he can’t speak for a certain amount of time. In the past it has been 3 days, then since the new Council rules, Council can ban him for up to 30 days. Would someone like to make a motion. I make a motion for 30 days. The council then voted 11 to 1 to ban him for 30 days. The City argues that “Dowd’s actions disrupted the meeting by 6 7 shifting the focus to the speaker’s improper language and conduct 8 rather than the issues and business before the Council. 9 personal attacks directed toward individual Councilmembers did not His 10 further the governmental process or enlighten either the Council or 11 the public regarding items of City business, they simply delayed 12 the City Council meeting and impeded the City Council’s ability to 13 efficiently complete its business.” (Defendant’s Position on 14 Incident No. 4 at 1.) 15 president “pathetic and hopeless” and saying she is “not doing a 16 very good job and you need to get together and lose her” is 17 political speech at the heart of the First Amendment. 18 Councilwoman Perry says during the incident, “Whether I like what 19 he has to say or not, which I actually don’t like, . . . he still 20 has the right to say it.” 21 2.) 22 is the frustration of Dowd at experiencing an interruption that 23 “broke[] [his] whole thread.” 24 The court disagrees. Calling the Council As (Joint Statement RE Incident No. 4 at While the frustration of Councilmemebers is understandable, so (Id.) The City does not point to, nor does the court discern in the 25 video, any disruption beyond Dowd’s speech. 26 this video, taken with the other incidents, that it was Dowd’s use 27 of a profanity (“there’s no guidelines for what that fucking 28 means”) that was the basis for dismissing him from the meeting and 39 It appears based on 1 for the weighty punishment of barring him from speaking for 30 2 days.12 3 because of the use of profanity unless the use of profanity 4 actually disturbs or impedes the meeting.” 5 n.5. 6 This is also the case in Incidents 5, 7, 8, 9, 10, 11, 12, and 13. 7 In all of those instances, the court finds that there is no actual 8 disturbance beyond breaching the Rules by the use of profanity. 9 But ‘[a] speaker may not be removed from a meeting solely Acosta, 718 F.3d at 810 The court finds that no actual disturbance took place here. If profanity takes a speaker off topic, it could be grounds to 10 silence the speaker because it would impede the progress of the 11 meeting. 12 incidents is in the service of making a point that is related to 13 the issue at hand, if not taking the discussion in the direction 14 that the Council intends. 15 February 14, 2012, Zuma Dogg used a profanity as an intensifier in 16 the context of a critique of the City Attorney. 17 RE Incident No. 12 at 2 (“[T]hen we’ll see what the jury has to say 18 so Carmen Trutanich can spend millions and millions and millions 19 and millions of dollars [and] outside counsel can drag it out and I 20 only want a fraction. 21 up.”).) 22 23 24 25 26 27 28 However, the profanity in the video evidence of these For instance, in Incident No. 12, (Joint Statement As Matt Dowd would say that is fucked Additionally, even where profanities are not involved, in some instances, the City’s determination that certain comments are not 12 Taken together, the evidence strongly suggests that the City Council believed that profanity was a sufficient basis on which to eject a speaker. For instance, in Incident No. 11, February 14, 2012, Dogg is allowed without interruption to sing a rendition of a Whitney Houston song to express his love for Councilmember Parks, but is ejected when he says, “As Matt Dowd would say that is fucked up.” (Joint Statement RE Incident No. 12 at 2.) The song is not considered a disruption, but the profanity is. 40 1 on topic results in a limitation of political speech. 2 instance, in Incident No. 6 from October 15, 2010, Dowd was again 3 removed from a meeting, this time because he was not on topic. 4 subject was the funding of the Pacoima Christmas Parade. 5 is in City Council District 7, of which Richard Alarcon was the 6 representative. 7 public comment is that I want council to discuss the legality of 8 this when you’ve got a criminal taking the money.” 9 to the podium. 10 ZINE: 12 DOWD: 13 14 ZINE: DOWD: 15 ZINE: 16 DOWD: 17 ZINE: DOWD: 18 19 21 22 The Pacoima Before Dowd began to comment, Dogg stated, “My Dowd then came Dowd and Councilman Zine had an interchange about the relevance of Dogg’s and Dowd’s comments to the agenda item: 11 20 For ZINE: DOWD: ZINE: The subject matter is the Christmas Parade. That’s the debate right now. Okay, and I’m talking about Richard Alarcon’s performance in his council district. What’s wrong with that? That is not the issue. That is not the issue. It’s in his district and he’s getting money out of the general fund . . . The issue is the Christmas Parade in Pacoima . . . Get the City Attorney, please, get your head on the hook . . . The Christmas Parade is the subject . . . Exactly, and I’m against it because Richard Alarcon shouldn’t be a councilman right here and if he stays you’re going to have to put up with it . . . Mr. Dowd, Mr. Dowd, you’re finished for the day . . . public comment Mr. Dowd, you’re finished for the day. You’re finished for the day, Mr. Dowd. Sergeant at Arms, remove him from chambers. He’s finished for the day. 23 (Joint Statement RE Incident No. 6 at 10.) 24 discussion of a councilman’s alleged criminal activities is 25 relevant to a discussion of funding that the City intends to give 26 to that councilman’s District. 27 of why it is unconstitutional to restrict speakers from making 28 personal attacks in City Council meetings; it chills speech The court finds the Indeed, this incident is exemplary 41 1 critical of elected officials, which is speech at the heart of the 2 First Amendment. 3 In one of the largest cities in the world, it is to be 4 expected that some inhabitants will sometimes use language that 5 does not conform to conventions of civility and decorum, including 6 offensive language and swear-words. 7 Council member will be the subject of personal attacks in such 8 language. 9 given themselves to public service, to tolerate profanities and As an elected official, a City It is asking much of City Council members, who have 10 personal attacks, but that is what is required by the First 11 Amendment. 12 on topic and moving forward, it cannot sacrifice political speech 13 to a formula of civility. 14 with views contrary to [their] own, but First Amendment 15 jurisprudence is clear that the way to oppose offensive speech is 16 by more speech, not censorship, enforced silence or eviction from 17 legitimately occupied public space.” 18 Portland, Or., 439 F.3d 573, 578 (9th Cir. 2006). 19 silences a critic will injure itself as much as it injures the 20 critic, for the gadfly’s task is to stir into life the massive 21 beast of the city, to “rouse each and every one of you, to persuade 22 and reproach you all day long.” 23 2d Ed., Trans. G.M.A. Grube, 35 (Apology).) 24 While the City Council has a right to keep its meetings Dowd and Dogg “may be a gadfly to those Gathright v. City of The city that (Plato, Five Dialogues, Hackett, The court GRANTS summary judgment to Plaintiffs on the as- 25 applied challenge to the Rules of Decorum. 26 issue a preliminary injunction but finds that the provisions of the 27 Rules of Decorum at issue here are constitutional only when there 28 is an actual disruption beyond a per se breach of the Rules. 42 The court declines to 1 2 3. California Constitution The California Constitution provides, “Every person may freely 3 speak, write and publish his or her sentiments on all subjects, 4 being responsible for the abuse of this right. A law may not 5 restrain or abridge liberty of speech or press.” 6 I, § 2. 7 construing it, accords greater protection to the expression of free 8 speech than does the United States Constitution.” 9 Superior Court, 180 Cal. App. 3d 1116, 1122 (Ct. App. 1986). Cal. Const. art. “The California Constitution, and California cases Gonzales v. 10 Because the California Constitution is more protective of free 11 speech than the U.S. Constitution, the court finds that as applied 12 the Rules of Decorum violate Article I § 2 as well.13 13 E. Damages Claims 14 The City has presented evidence indicating that Plaintiffs did 15 not suffer economic loss due to the 2008 Ordinance. 16 City Exhs. 28, 49, 68, 317, 325, 327-32, 335-44, 355-56, 360, 362.) 17 Plaintiffs have presented evidence in the form of their 18 declarations indicating that they suffered economic loss and 19 potentially compensable emotional distress. 20 Decl. ¶ 74.) 21 objective evidence. 22 1020, 1040 (9th Cir. 2003), citing Passatino v. Johnson & Johnson 23 Consumer Prods., Inc., 212 F.3d 493, 513 (9th Cir. 2000). 24 court finds that there is an issue of fact as to the compensatory 25 damages suffered by Plaintiffs and DENIES summary judgment on the 26 issue of damages. 27 28 (See, e.g., (See, e.g., Saltsburg Emotional distress damages need not be based on Zhang v. American Gem Seafoods, Inc., 339 F.3d 13 The Due to insufficient briefing, the court declines to address whether the Rules of Decorum are facially unconstitutional under the California constitution. 43 1 2 IV. CONCLUSION For the reasons stated above, the court GRANTS summary 3 judgment in favor of Defendants on the 2006 Ordinance. The court 4 GRANTS summary judgment in favor of Defendants on the Permit and 5 Lottery system, the height restriction, the rotation requirement, 6 and the sunset requirement. 7 favor of Plaintiffs on the amplified sound ban. 8 summary judgment in favor of Defendants on the facial 9 constitutionality of the Rules of Decorum under the United States The court GRANTS summary judgment in The court GRANTS 10 Constitution, but GRANTS summary judgment in favor of Plaintiffs on 11 their as-applied challenge to the Rules of Decorum under the United 12 States Constitution and the California constitution. 13 declines to issue a preliminary injunction but finds that the 14 provisions of the Rules of Decorum at issue here are constitutional 15 only when there is an actual disruption beyond a per se breach of 16 the Rules. 17 damages. The court The court DENIES summary judgment on the issue of 18 19 IT IS SO ORDERED. 20 21 22 Dated: August 7, 2013 DEAN D. PREGERSON United States District Judge 23 24 25 26 27 28 44
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