Cuviello v. City of Vallejo, No. 17-16948 (9th Cir. 2019)
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The Ninth Circuit reversed the district court's denial of plaintiff's motion for a preliminary injunction seeking to enjoin the enforcement of the city's requirement that individuals obtain permits before they use sound amplifying devices within the city. In this case, plaintiff wanted to use a bullhorn to amplify his voice during protests of alleged animal mistreatment at Six Flags Discovery Park.
Determining that the case was not moot even in light of the city's recent amendment, the panel held that the district court abused its discretion by concluding that plaintiff was unlikely to succeed on the merits of his claim that the permit requirement imposed an unconstitutional prior restraint on public speech. In this case, although the permit requirement furthered the city's significant interests, it was not narrowly tailored because it covered substantially more speech than necessary to achieve those interests. The panel also held that the district court abused its discretion by failing to recognize a police officer's threat of criminal sanctions against plaintiff as irreparable harm. Furthermore, the district court abused its discretion in concluding that the balance of equities did not tip in plaintiff's favor. Finally, the panel held that it was well within the public interest to issue a preliminary injunction.
Court Description: Civil Rights The panel reversed the district court’s denial of plaintiff’s motion for a preliminary injunction seeking to enjoin the enforcement of the City of Vallejo’s requirement that individuals obtain permits before they use sound- amplifying devices within the City. Plaintiff sought to use a bullhorn so that he could amplify his voice during weekend protests of alleged animal mistreatment at Six Flags Discovery Park in Vallejo, where the noise of the park hampers his ability to spread his message. Concerned that the City would enforce the permit requirement against him, plaintiff filed this action, contending that the permit requirement set forth in Chapter 8.56 of the Vallejo Municipal Code violates the First Amendment of the United States Constitution and the Liberty of Speech Clause of the California Constitution. The panel first held that the case was not moot even though the City of Vallejo had recently amended Chapter 8.56. The panel held that the gravamen of plaintiff’s complaint and the irreparable harm that plaintiff alleged remained unaffected by the amendments. The panel held that district court abused its discretion by concluding that plaintiff was unlikely to succeed on the merits of his claim that the permit requirement imposed an unconstitutional prior restraint on public speech. The panel CUVIELLO V. CITY OF VALLEJO 3 held that under California law, because Section 8.56.030 establishes a permit requirement in advance of public speech and bans an instrumentality of speech absent a permit, it imposes a prior restraint. The panel concluded that although the permit requirement furthered the City’s significant interests, it was not narrowly tailored because it covered substantially more speech than necessary to achieve those interests. The panel held that the district court abused its discretion by failing to recognize that a police officer’s threat of criminal sanctions against plaintiff constituted irreparable harm. The panel held that as long as Section 8.56.030 remains in effect, the threat of enforcement against plaintiff will persist, chilling his exercise of free speech rights. Under the circumstances, the panel held that plaintiff’s delay in bringing his action did not significantly undercut his showing of irreparable harm. The panel held that the district court abused its discretion in finding that the balance of equities tipped in the City’s favor and that halting the enforcement of Chapter 8.56 would not be in the public interest. Dissenting, Judge Feinerman stated that plaintiff filed his suit one year after he had last been threatened with enforcement of the challenged ordinance, and he then waited five months after filing suit to move for a preliminary injunction. In Judge Feinerman’s view, this lengthy and unjustified delay showed that plaintiff did not suffer irreparable harm and therefore disentitled him to preliminary injunctive relief. 4 CUVIELLO V. CITY OF VALLEJO
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