Harman v. City of Santa Cruz, California et al, No. 5:2016cv04361 - Document 47 (N.D. Cal. 2017)

Court Description: ORDER Granting in Part and Denying in Part 10 Plaintiff's Motion for Preliminary Injunction. Signed by Judge Edward J. Davila on 7/5/2017. (ejdlc3S, COURT STAFF) (Filed on 7/5/2017)

Download PDF

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 DONALD HARMAN, Case No. 5:16-cv-04361-EJD Plaintiff, 8 v. 9 10 United States District Court Northern District of California 11 12 CITY OF SANTA CRUZ, CALIFORNIA, et al., ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Re: Dkt. Nos. 10, 10-23 Defendants. Plaintiff Donald Harman brings this civil rights action under 42 U.S.C. § 1983 against the 13 City of Santa Cruz, as well as Police Chief Kevin Vogel, Lieutenant Warren Barry, Sergeant 14 Carter Jones, and Officer Ian Burnham (collectively, “Defendants”), alleging that certain 15 provisions of the Santa Cruz Municipal Code (“SCMC”) are unconstitutional restrictions on 16 protected speech. Specifically, Plaintiff challenges the constitutionality of the City’s noise 17 ordinance, SCMC section 9.36.020, as well as Chapter 9.40 et seq., which governs the use and 18 approval of sound amplification permits. Compl. ¶ 1, Dkt. No. 1. Harman challenges the 19 constitutionality of these two ordinances on their face and as applied to his speech, and seeks 20 declaratory and injunctive relief, as well as nominal damages. Compl. ¶ 3. 21 22 23 24 25 26 The court has jurisdiction over the federal claims at issue pursuant to 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction over the California State Constitution claims under 28 U.S.C. §§ 1367. Presently before the court is Harman’s Motion for a Preliminary Injunction requesting that the court “enjoin[] Defendants…from applying Ordinances 9.36.020 and 9.40.010 et seq. so as to restrict constitutionally-protected speech of speakers, including Harman and other third parties, on the city sidewalks alongside Pacific Avenue.” Compl. ¶ D; Dkt. Nos. 10 and Dkt. 27 28 1 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 No. 10-23.1 Having carefully reviewed the papers submitted by both parties in this matter, the 2 Motion for a Preliminary Injunction will be GRANTED IN PART and DENIED IN PART for the 3 reasons explained below. 4 I. BACKGROUND Donald Harman is a self-described born-again evangelical Christian who seeks to “share 5 6 the message of God’s salvation, which he refers to as the ‘gospel,’ with as many people as 7 possible.” Compl. ¶¶ 18-19. In order to share this message, Harman typically goes to public 8 sidewalks and “preaches” – that is, he “orally and publically proclaims his religious beliefs.” 9 Compl. ¶¶ 20-21; see also Aff. of Donald Harman (“Harman Aff.”) ¶¶ 2-3 Dkt. No. 10-1. Harman has preached regularly in downtown Santa Cruz since 2013, primarily on the 11 United States District Court Northern District of California 10 sidewalks along Pacific Avenue at the intersections of Pacific Avenue and Cooper Street, and 12 Pacific Avenue and Soquel Avenue. Harman Aff. ¶¶ 12-13. The Pacific Avenue sidewalks are 13 characteristically busy with a variety of street performers, including musicians, dancers, activists, 14 poets, clowns, magicians, jugglers, and acrobats, among others, which often results in a lively, 15 loud, and even chaotic environment that has come to be considered part of “the Santa Cruz 16 culture” and something of “a staple of the downtown experience.” Compl. ¶¶ 33-39. Harman 17 acknowledges that some might not appreciate his message, but states that he does not try to 18 offend, insult, or harass anyone, does not encourage violence, and does not solicit funds or 19 membership in any organization. Compl. ¶¶ 25-27. Because he “prefers to speak in 20 conversational tone in lieu of speaking with a raised voice,” Harman favors the use of a personal 21 amplification device when he preaches. Compl. ¶ 22. For approximately one year, Harman shared his religious message in downtown Santa 22 23 Cruz through an amplifier without incident or interference. Compl. ¶ 41; Harman Aff. ¶ 14. 24 While he did encounter the occasional passersby who voiced disagreement with his message or 25 1 26 27 28 Harman has filed a Notice of Motion and Motion for Preliminary Injunction (Dkt. No. 10), as well as a Memorandum of Points and Authorities in Support of the Motion for Preliminary Injunction (Dkt. No. 10-23). Unless otherwise noted, all citations to the Motion are in reference to the Memorandum of Points and Authorities (hereafter, “MPI.”). 2 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 heckled him, these exchanges never involved physical alterations. Id. However, in March of 2 2014, a police officer approached Harman and informed him that he needed to acquire a permit 3 from the Santa Cruz Police Department in order to use the amplifier in public. Compl. ¶ 43. 4 Although Harman “believed he had a right to speak on a public sidewalk with reasonable 5 amplification without having to obtain a permit in advance,” he states that did not want to cause 6 trouble or risk arrest, so he left. Compl. ¶ 42; Harman Aff. ¶ 15. 7 A. Santa Cruz Municipal Code Chapter 9.40, entitled Sound Amplifiers (the “Amplifier 8 9 Santa Cruz Sound Amplification and Noise Restriction Ordinances Ordinance”), mandates that all persons who wish to use any sound-amplifying device or equipment on public or private property must first secure a permit from the police department. 11 United States District Court Northern District of California 10 See § 9.40.010.2 Among other requirements, the application for the sound amplification permit 12 calls for the applicant to “describe in detail the activity proposed to be conducted for which [the 13 permit] is requested,” and “set forth the steps that the applicant will take to ensure that the sound 14 amplification will not unreasonably disturb other people within the vicinity.” § 9.40.020. The 15 Amplifier Ordinance vests the police chief with the power to grant or deny the permit, stating: 16 The police chief may grant the sound amplification permit if he determines that the sound amplification will be conducted in such a manner as not to unreasonably disturb the neighbors or other persons in the vicinity of the sound amplification, and if he further determines that if actually implemented, the steps to be taken by the applicant to minimize or avoid such disturbance will be adequate. In granting a permit, the police chief may impose such conditions as may be appropriate or necessary in order to protect the public peace and safety. 17 18 19 20 21 § 9.40.030. The Ordinance also includes a renovation provision, which further provides, “Any 22 permit granted pursuant to this section shall be revocable at any time by the police chief for good 23 cause.” § 9.40.040. An unfavorable decision by the police chief regarding a sound amplification 24 permit may be appealed by the aggrieved party to the city council. § 9.40.050. On April 12, 2014, Harman submitted an application for a sound amplification permit in 25 26 2 27 28 A copy of Chapter 9.40 is also attached as Exhibit D to Harman’s Motion for Preliminary Injunction (Dkt. No. 10-4). 3 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 accordance with this process, which Santa Cruz Police Lieutenant Warren Barry granted on May 2 1, 2014. 3 Compl. ¶ 43; Barry Decl. ¶¶ 11-12 and Ex. A (Approved Sound Amplification Permit 3 Appl.), Dkt. No. 27-1. The permit’s “Event Conditions” state that “complaints of loud noise may 4 result in revocation of permit,” and that applicant must “obey all local, state, and federal laws.” 5 See Barry Decl., Ex. A at 2. The permit includes the date the application was submitted and the 6 date it was approved, however, the permit does not indicate any expiration date. See id. at 1-2; 7 Compl. ¶ 44. The permit also expressly requires compliance with Santa Cruz Municipal Code Chapter 8 9 10 9.36, entitled Noise (the “Noise Ordinance”). See § 9.36.010 et seq.4 Section 9.36.020 of the Noise Ordinance provides: United States District Court Northern District of California 11 No person shall make, suffer or permit to be made any noises or sounds which are unreasonably disturbing or physically annoying to people of ordinary sensitiveness or which are so harsh or so prolonged or unnatural or unusual in their use, time or place as to cause physical discomfort to any person. 12 13 14 This language is also provided on the permit application itself, though the application quotes an 15 outdated version of the Ordinance that was previously invalidated by this court in Hampsmire v. 16 City of Santa Cruz, 899 F. Supp. 2d 922, 938-939 (N.D. Cal. 2012). See Barry Decl., Ex. A at 1. 17 In Hampsmire, the court found section 9.36.020’s provision banning noise “which is not necessary 18 in connection with any activity which is otherwise lawfully conducted” to be unconstitutionally 19 vague. Id. Following the Hampsmire ruling in 2012, the Santa Cruz City Council revised the 20 Ordinance to remove this clause, leaving only the above referenced language. Declaration of 21 Barbara H. Choi (“Choi Decl.”), Dkt. No. 24. 22 23 24 25 26 27 28 3 While the Amplifier Ordinance provides that it is the police chief who has the authority to grant or deny an amplification permit, according to Defendants, Police Chief Kevin Vogel “designated” his authority for granting permits to Lt. Barry. Decl. of Lt. Warren Barry (“Barry Decl.”) ¶ 7, Dkt. No. 27. 4 A copy of Chapter 9.36 is also attached as Exhibit O to Harman’s Motion for Preliminary Injunction (Dkt. No. 10-10). 4 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION B. 1 Harman is Confronted by Santa Cruz Police Officers Regarding Alleged Violations of the City’s Noise Ordinance After Harman received his permit, he returned to preaching on Pacific Avenue with the use 2 of a personal amplification device, and did so without incident for approximately another year. 4 See Compl. ¶¶ 43-46. However, on Saturday, May 16, 2015, Harman alleges that he was 5 approached by Lt. Barry, who informed him that he had “received anonymous complaints about 6 Harman’s expression,” and asked him if he could lower the volume of his amplifier. Id. ¶ 46. 7 Harman contends that he was not being unreasonably loud – that he “was not nearly as loud as 8 performers who regularly played in those same areas” – and therefore any complaints about him 9 must have been based on the content of his message rather than its volume. Harman Aff. ¶ 17. 10 However, he states that he “did not want to cause any problems and willingly agreed to do so.” 11 United States District Court Northern District of California 3 Compl. ¶ 46. Harman further asserts that although he was consciously trying to maintain an 12 appropriate and acceptable volume following this encounter with Lt. Barry, he “was not given any 13 guidance on how low the amplifier needed to be or at what decibel level his speech needed to be” 14 in order to be reasonable. Id. ¶ 47; Harman Aff. ¶ 17. A few months later, on July 24, 2015, Harman returned to Pacific Avenue and used his 15 16 amplification device to preach at what he contends was a low volume. Compl. ¶ 52. Harman 17 alleges that, notwithstanding his lowered volume, Lt. Barry abruptly revoked Harman’s 18 amplification permit without warning, citing Harman’s failure to comply with the permit’s terms. 19 Compl. ¶¶ 52-54. Lt. Barry stated that Santa Cruz Police Department had received “beyond large 20 [sic] amount of complaints” about Harman’s preaching,5 and then concluded “your permit is now, 21 it’s gone, it’s expired, you don’t have an amplification permit anymore.” MPI, Ex. H. (audio 22 recording of conversation between Harman and Lt. Barry on July 24, 2015), Dkt. No. 10-6. When 23 Harman asked how Lt. Barry could arbitrarily just take away his permit, Lt. Barry stated, “It’s 24 over a year and I’m taking it away from you.” MPI, Ex. H; Compl. ¶ 55. When Harman pointed 25 26 27 28 5 According to Lt. Barry’s written report of the July 24, 2015 encounter, between January and July of 2015, the Department had received “at least ten” complaints regarding both the noise level and the content of about Harman’s preaching. Barry Decl. ¶¶ 13-14 and Ex. B, Dkt. Nos. 27, 27-1. 5 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 out that the permit did not have an expiration date and asked whether Lt. Barry was doing this on 2 his own authority, Lt. Barry responded: “I’m in charge of amplification permits, and you have 3 been louder than normal, and so I’m just letting you know that you don’t have amplification 4 permit anymore.” MPI, Ex. H; Compl. ¶¶ 56-57. Lt. Barry concluded the interaction by telling 5 Harman, “You cannot use an amplification device” and again repeating that the permit was 6 “expired.” MPI, Ex. H; see also Compl. ¶¶ 57-58. Harman has not appealed the permit revocation 7 or re-applied for a new permit. Opp. at 2. 8 9 Harman continued to preach and use his amplifier after his permit was revoked. Harman Aff. ¶ 24. On August 14, 2015, Harman was preaching through an amplifier in downtown Santa Cruz on Pacific Avenue and Cooper Street. Id. ¶¶ 28-29. Harman recorded video and audio 11 United States District Court Northern District of California 10 footage of various interactions and events that occurred on August 14, 2014, and attached them as 12 exhibits in support of his Motion. See MPI, Exs. E-N, P-II, KK-NN, Dkt. No 10. These exhibits 13 show Harman speaking on August 14, 2015 in an amplified volume with people gathered around 14 him. A number of people were disturbed by the content of his message and called him names, 15 displayed offensive hand gestures, and attempted to drown out his speaking with other loud 16 sounds such as music, drumming, and yelling. MPI, Exs. R-AA, Dkt. No. 10-11. One citizen 17 yelled, “we do not want you here, Santa Cruz does not tolerate hate speech,” and another chanted 18 “you molest children.” See MPI, Exs. CC, FF, Dkt. No. 10-13. Harman at times raised his voice 19 to be heard over the hecklers, however, the exhibits also show that street performers and the 20 yelling of other citizens was often louder than Harman’s preaching. See e.g., MPI, Ex. Z, Dkt. 21 No. 10-11; Ex. CC, Dkt. No. 10-13. 22 Around 6:00 p.m., Harman alleges that Lt. Barry and Officer Burruel approached him and 23 told him to keep the noise down or he could be in violation of the municipal code, handing a copy 24 of SCMC § 9.36.020. Harman Aff. ¶¶ 33-34; see MPI, Exs. N-M, Dkt. Nos. 10-8, 10-9. A few 25 hours later, around 8:30, Sergeant Carter Jones arrived and asked for Harman’s identification. 26 Harman Aff. ¶¶ 58-65. Sgt. Jones informed Harman that two people had signed “citizen’s 27 citations” complaining about his “loud amplified speech.” Id.; MPI, Exs. EE-GG; Declaration of 28 6 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 Sergeant Carter Jones (“Jones Decl.”) ¶ 8, Dkt. No. 26. Sgt. Jones stated that based on these 2 complaints, Harman was in violation of SCMA section 9.36.020, and issued two citations to this 3 effect. Jones Decl., ¶¶ 7-9; MPI, Exs. EE-GG. Sgt. Jones told Harman he would not have issued 4 the citation if it were not for the complaints of the two people, and also said he could hear 5 Harman’s preaching from about seventy-five feet away and found it to be objectively loud and in 6 violation of the city’s offensive noise code. Ex. GG; Jones Decl. ¶¶ 4-8. After he received the citations, Harman alleges that he attempted to preach without an 7 amplifier, but doing so results in his voice being easily drowned out by other sounds, or having to 9 yell, which he contends detracts from his message. Harman Aff. ¶¶ 75-76. On September 18, 10 2015, Defendants allege that a citizen reported a noise disturbance on Pacific Ave. and Soquel 11 United States District Court Northern District of California 8 Ave. to Police Officer Ian Burnham. Decl. of Police Officer Ian Burnham (“Burnham Decl.”) ¶ 7, 12 Dkt. No. 25. Burnham states that he witnessed Harman “yelling at a passerby” and issued Harman 13 a citation. Id. at ¶ 8. Harman contends the citation came without warning or request to lower his 14 volume. Harman Aff. ¶ 78. Harman’s legal counsel later sent a letter to the Santa Cruz mayor, city manager, city 15 16 attorney, and chief of police complaining that the City’s arbitrary enforcement of the Noise 17 Ordinance infringed on Harman’s First Amendment rights and unreasonably subjected him to 18 $1,455 in fines. MPI, Ex. RR, Dkt. No. 10-21. The City’s written response stated Harman 19 incorrectly stated facts and misinterpreted the law. MPI, Ex. SS, Dkt. No. 10-22. Harman 20 contends that he cannot continue preaching without risking citation and arrest, and thus initiated 21 this lawsuit. Harman Aff. ¶ ¶ 85-86, Dkt. No. 10-1. 22 II. LEGAL STANDARD 23 A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 24 clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 25 Inc., 555 U.S. 7, 22 (2008). “To obtain a preliminary injunction, the moving party ‘must establish 26 that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the 27 absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in 28 7 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 the public interest.’” Idaho v. Coeur D’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015) (quoting 2 Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014)). Alternatively, “‘serious questions going to the merits’ and a hardship balance that tips 3 4 sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the 5 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 6 public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 7 This articulation represents “one alternative on a continuum” under the “‘sliding scale’ approach 8 to preliminary injunctions employed” by the Ninth Circuit. Id. at 1131-32. Whether to grant or 9 deny a TRO or preliminary injunction is a matter within the court’s discretion. See Miss 10 United States District Court Northern District of California 11 Universe, Inc. v. Flesher, 605 F.2d 1130, 1132-33 (9th Cir. 1979). III. DISCUSSION Harman requests that the court enter a preliminary injunction enjoining Defendants and 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their agents from enforcing and applying Santa Cruz Municipal Code sections 9.36.020 and 9.40.010 et seq. “so as to restrict constitutionally-protected speech of speakers, including Harman and other third parties.” Compl. ¶ D; Dkt. Nos. 10 and Dkt. No. 10-23. Harman challenges the constitutionality of these Ordinances on the grounds that section 9.36.020 is both vague and overbroad, and Chapter 9.40 “establishes a prior restraint on the use of amplification with no objective criteria to guide the discretion of licensing officials.” Dkt. No. 10, at 2. Harman challenges the constitutionality of these two Ordinances on their face and as applied to him. Because a preliminary injunction as to the facial claims would necessarily encompass the relief sought in Harman’s as-applied claims, the court will begin with the facial challenges. A. Likelihood of Success on the Merits or Serious Questions Requiring Litigation To satisfy the first element of the standard for injunctive relief, it is not necessary for the moving party to “prove his case in full,” or show that he is “more likely than not” to prevail. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Leiva–Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011). Rather, the moving party must demonstrate a “fair chance of success on the merits” or raise questions “serious enough to require litigation.” Benda v. Grand Lodge of the 8 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 Int’l Ass’n of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978); see also 2 Koller v. Brown, 224 F. Supp. 3d 871, *6 (N.D. Cal. 2016) (holding that where there were 3 “equally plausible opposing views” concerning the constitutionality of a state code, even though 4 the plaintiff had not demonstrated a likelihood of success on the merits, plaintiff had “certainly 5 raised a question ‘serious enough to require litigation,’” thus satisfying this element). 6 7 i. Facial Challenge to Section 9.36.020 An ordinance may be facially unconstitutional in two ways. The first kind of facial 8 challenge asserts that the ordinance “is unconstitutional in every conceivable application,” and 9 “could never be applied in a valid manner because it is unconstitutionally vague or it impermissibly restricts a protected activity.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th 11 United States District Court Northern District of California 10 Cir. 1998), as amended on denial of reh’g (July 29, 1998) (quoting Members of City Council of 12 City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). The second type of 13 facial challenge asserts that the ordinance is written so broadly that it includes constitutionally 14 protected activities within its prohibitions, and is therefore unconstitutionally overbroad. Id. 15 Here, the Santa Cruz Noise Ordinance, section 9.36.020, reads in its entirety: 16 No person shall make, suffer or permit to be made any noises or sounds which are unreasonably disturbing or physically annoying to people of ordinary sensitiveness or which are so harsh or so prolonged or unnatural or unusual in their use, time or place as to cause physical discomfort to any person. 17 18 19 20 21 22 23 24 25 26 27 28 See also, MPI, Ex. O. Harman asserts both “overbreadth” and “void for vagueness” challenges to this Ordinance. He argues that the first clause, prohibiting “any noises or sounds which are unreasonably disturbing or physically annoying to people of ordinary sensitiveness,” lacks objective criteria for assessing whether a violation occurred, including any reference to volume or decibel level, and is therefore unconstitutionally overbroad. As to the second clause, Harman argues that a prohibition on “harsh,” “prolonged,” “unnatural” or “unusual” noises that cause any person to experience “physical discomfort” is vague and necessarily depends on the subjective opinions and sensitivities of the complaining person. Because the two clauses are written in the disjunctive, the validity of one clause is not tethered to the validity of the other, so the court must 9 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 evaluate each clause independently. See United States v. Jackson, 390 U.S. 570, 585 (1968) 2 (“[T]he unconstitutionality of a part of an Act does not necessarily defeat ... the validity of its 3 remaining provisions.”). 4 The Supreme Court and the Ninth Circuit have repeatedly reaffirmed that public places such as sidewalks are “the archetype of a traditional public forum.” Gaudiya Vaishnava Soc. v. 6 City & Cty. of San Francisco, 952 F.2d 1059, 1065 (9th Cir. 1990), as amended on denial of reh’g 7 (Dec. 26, 1991) (quoting Frisby v. Schulz, 487 U.S. 474 (1988)). In such traditional public fora, 8 the government’s authority to restrict speech is at its minimum. Id. A state may impose content- 9 neutral regulations limiting “‘the time, place, and manner of expression’ if the regulations are 10 ‘narrowly tailored to serve a significant government interest, and leave open ample alternative 11 United States District Court Northern District of California 5 channels of communication.’” Comite de Jornaleros de Redondo Beach v. City of Redondo 12 Beach, 657 F.3d 936, 940 (9th Cir. 2011) (quoting Perry Educ. Ass’n v. Perry Local 13 Educators’Ass’n, 460 U.S. 37, 45 (1983). To be narrowly tailored, a time, place, or manner 14 regulation of speech “need not be the least restrictive or least intrusive means;” rather, the 15 requirement is satisfied “so long as the ... regulation promotes a substantial government interest 16 that would be achieved less effectively absent the regulation.” Ward v. Rock Against Racism, 17 491 U.S. 781, 798-99 (1989); see also Comite de Jornaleros, 657 F.3d at 947 (clarifying that for a 18 regulation to be narrowly tailored, it “must focus on the source of the evils the city seeks to 19 eliminate ... and eliminate them without at the same time banning or significantly restricting a 20 substantial quantity of speech that does not create the same evils.”) (internal quotations omitted). 21 There is no dispute that the Noise Ordinance is content-neutral on its face. Additionally, it 22 is well-settled that protecting residents from excessive noise is considered a substantial 23 government interest. See Ward, 491 U.S. at 796 (“[I]t can no longer be doubted that government 24 ‘ha[s] a substantial interest in protecting its citizens from unwelcome noise.’”). 25 26 a. Whether the Prohibition on “Unreasonably Disturbing” or “Physically Annoying” Sounds is Unconstitutionally Overbroad Whether a particular law is unconstitutionally overbroad turns on “whether the ordinance 27 28 10 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION sweeps within its prohibitions what may not be punished under the First and Fourteenth 2 Amendments.” Grayned v. City of Rockford, 408 U.S. 104, 114-15 (1972). In a facial challenge 3 brought on First Amendment grounds, a local ordinance “may be invalidated as overbroad if a 4 substantial number of its applications are unconstitutional, judged in relation to the statute’s 5 plainly legitimate sweep.” Comite de Jornaleros, 657 F.3d at 944 (quoting United States v. 6 Stevens, 559 U.S. 460 (2010) and Wash. State Grange v. Wash. State Republican Party, 552 U.S. 7 442, 449 n. 6 (2008)); see also S.O.C., Inc. v. Cty. of Clark, 152 F.3d 1136, 1142 (9th Cir.), 8 amended, 160 F.3d 541 (9th Cir. 1998) (holding that a “overbreadth” challenge to an ordinance 9 must show that the ordinance “seeks to prohibit such a broad range of protected conduct that it is 10 unconstitutionally overbroad.”). “The overbreadth doctrine exists ‘out of concern that the threat 11 United States District Court Northern District of California 1 of enforcement of an overbroad law may deter or chill constitutionally protected speech.’” Comite 12 de Jornaleros, 657 F.3d at 944 (quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003)). 13 Here, Harman’s overbreadth argument primarily challenges the Noise Ordinance’s 14 prohibition on “physically annoying” sounds. See MPI at 12-14; Reply at 13-14. Harman takes 15 particular issue with this provision in light of the fact that it lacks any reference to volume, as thus 16 essentially outlaws speech – regardless of noise level – if a person of ordinary sensitiveness would 17 be “unreasonably disturb[ed]” or “physically annoy[ed]” by the speech’s expression of an idea 18 they find offensive. Id. With respect to the term “physically annoying,” the court agrees. 19 The prevention of “annoyance” is not a proper basis on which to curtail protected speech. 20 As the Supreme Court held in Coates v. City of Cincinnati, a state may not make laws suppressing 21 fundamental First Amendment rights “simply because its exercise may be ‘annoying’ to some 22 people.” 402 U.S. 611, 615–16 (1971). In a strong rebuke of any suggestion to the contrary, the 23 Court further elaborated: 24 If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is ‘annoying’ because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens. 11 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 25 26 27 28 1 Id.; see also Bell v. Keating, 697 F.3d 445, 460–61 (7th Cir. 2012) (“silencing otherwise protected 2 speech because it annoys is tantamount to ‘suspending unconditionally the right of assembly and 3 free speech.’”) (quoting Coates, 402 U.S. 616). “[A] function of free speech under our system of 4 government is to invite dispute” – especially when the content of the speech is unpopular or could 5 be deemed offensive. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). But it is a 6 fundamental tenant of American democracy that the right to free speech outweighs the right to be 7 free from annoyance. Id. As the Supreme Court explained, 8 9 10 United States District Court Northern District of California 11 Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. 12 Id. Indeed, “mere public intolerance or animosity cannot be the basis for abridgment of [] 13 constitutional freedoms.” Coates v. City of Cincinnati, 402 U.S. at 615 14 Defendants do not meaningfully address Harman’s specific overbreadth challenge to the 15 term “physically annoying.” Rather, Defendants argue generally that the Noise Ordinance is 16 distinguishable because it is tied to the objective standard of a person with “ordinary sensitivities,” 17 whereas the law in cases such as Coates included no such limitation. See Opp. at 6-7. However, 18 the critical issue here is not necessarily who is suffering the annoyance, but rather what the source 19 of the annoyance is. In other words, an objectively “reasonable person” of “ordinary sensitivities” 20 may find certain speech annoying, but if the basis for their annoyance is distain or offense to its 21 content, a law that permits curtailing speech on the basis of that annoyance is invalid. Such is the 22 case here. Without being tethered to volume or other more specific prerequisites for enforcement, 23 the Noise Ordinance’s use of the term “physically annoying” impermissibly “sweeps within its 24 prohibitions” speech that one finds annoying based on its content rather than its sound. And while 25 Defendants contend that they do not enforce the Ordinance on this basis, this is of little relevance 26 where, as here, the plain language of the Ordinance would nevertheless allow for such 27 enforcement. See Comite de Jornaleros, 657 F.3d at 946–47 (“We cannot simply presume the 28 12 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 2 City will act in good faith and adhere to standards absent from the ordinance’s face.”) The court therefore agrees with Harman that the Noise Ordinance’s prohibition on noise 3 that is “physically annoying” fails to pass constitutional muster. However, the court disagrees that 4 the prohibition on “unreasonably disturbing” noise is invalid under the same logic. As this court 5 briefly suggested in Hampsmire v. City of Santa Cruz, prohibiting noise or sound that is 6 “unreasonably disturbing” to a person of “ordinary sensitivities” establishes identifiable criteria 7 that can be measured and assessed pursuant to an objective standard. See 899 F. Supp. 2d at 938. 8 Courts have upheld similar statutory language prohibiting “unreasonable” and “disturbing” noise 9 as a permissible restriction under the First Amendment. See Kovacs v. Cooper, 336 U.S. 77, 83 (1949) (finding that “disturbing noises” are “nuisances well within the municipality's power to 11 United States District Court Northern District of California 10 control”). 12 Defendants argue that this court’s reasoning in Hampsmire should be construed as having 13 found the entire first clause of section 9.36.020, including the term “physically annoying,” to be 14 constitutional. However, a close reading of the court’s decision does not merit such an 15 interpretation. The prior version of the Noise Ordinance challenged in Hampsmire was written in 16 the conjunctive, requiring the court the address the clauses as read together. The court’s decision 17 to invalidate the Ordinance was based on the “necessary” exemption. While the court suggested 18 that a prohibition on “unreasonably disturbing” noise would provide an objective standard if it 19 were not “so interwoven” with the second “necessary” clause, the court never addressed the 20 Ordinance’s use of the term “physically annoying” at all. See Hampsmire, 899 F. Supp. 2d at 938- 21 39. Instead, the court concluded that Section 9.36.020 was invalid in its entirety. Id. at 939. 22 Here, because the first clause is written in the disjunctive – i.e. proscribing sounds “which are 23 unreasonably disturbing or physically annoying to people of ordinary sensitiveness” – it is 24 appropriate to assess the constitutionality of these terms independently. See Jackson, 390 U.S. at 25 585; see also Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 488-89 (4th Cir. 26 1983) (striking prohibition on “unnecessary” noise but not “unreasonable” noise where the terms 27 were disjunctive). 28 13 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 Based on the foregoing, the court finds that Harman has established a likelihood of success 2 on the merits of his constitutional challenge to the Ordinance’s use of the term “physically 3 annoying” in section 9.36.020, or – at a minimum – has demonstrated that there is a serious 4 question as to its constitutionality that warrants further litigation. See Koller, 224 F. Supp. 3d at *6 5 (finding plaintiff had raised a question “serious enough to require litigation,” where he had 6 established “equally plausible opposing views” concerning the constitutionality of a state code). 7 However, to the extent Harman challenges the constitutionality of the Ordinance’s prohibition on 8 sound that is “unreasonably disturbing to people of ordinary sensitivities,” Harman has not 9 established a likelihood of success on the merits of this claim and an injunction sought on this 10 12 b. Whether the Prohibition on “Harsh,” “Prolonged,” “Unnatural,” or “Unusual” Sounds That Cause “Physical Discomfort to Any Person” is Unconstitutionally Vague 13 Harman also alleges the second clause of section 9.36.020, which prohibits any noises or 14 sounds that “are so harsh or so prolonged or unnatural or unusual in their use, time or place as to 15 cause physical discomfort to any person,” is unconstitutionally vague in violation of the Due 16 Process Clause. MPI at 14. 11 United States District Court Northern District of California basis will be denied. 17 It is a fundamental principle of due process that an enactment must “clearly delineate the 18 conduct it proscribes.” Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1057 (9th Cir. 1986); Grayned 19 v. City of Rockford, 408 U.S. 104, 108 (1972). A statute must be sufficiently clear so as to allow 20 persons of “ordinary intelligence a reasonable opportunity to know what is prohibited.” Foti, 146 21 F.3d at 638. An enactment that fails to meet this standard is void for vagueness. Grayned, 408 22 U.S. at 108. Vague laws offend the principle of due process because “they may entrap the innocent 23 by not giving fair warning of what conduct is prohibited,” and can result in arbitrary and 24 discriminatory enforcement. Id. at 108-109; Kitsap Cty., 793 .2d at 1057. The Supreme Court has 25 noted that vague laws concerning matters of First Amendment freedoms are additionally 26 concerning because the lack of clarity in the law “operates to inhibit the exercise of (those) 27 freedoms.” Grayned, 408 U.S. at 108-109. 28 14 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 Harman alleges that the Noise Ordinance’s prohibition on sounds that cause “any person” 2 to complain of “physical discomfort” is highly subjective and fails to create a discernable standard 3 that would inform a person of ordinary intelligence what is prohibited. See MPI at 14. Harman 4 again takes issue with the fact that the Ordinance not only lacks any objective measurements, such 5 as decibel level, but omits any reference for volume or noise level at all. Id. at 14-15. Harman 6 contends that words harsh, prolonged, unnatural, or unusual have no clearly understood meaning, 7 especially where such words are not linked to volume or qualified by the “reasonable person” 8 standard. Id. 9 Defendants again fail to address the specifics of Harman’s void for vagueness challenge to the second clause of the Ordinance, instead conflating a discussion of both clauses into one and 11 United States District Court Northern District of California 10 asserting general conclusions that the language used in the Ordinance has “commonly understood 12 meanings,” and provides “objective guidance” and “fair warning of the prohibited conduct.” Opp. 13 at 6-7. Any elaboration from Defendants appears to rely on the fact that officers had previously 14 warned Harman about his conduct and provided him with a copy of the ordinance to argue that 15 notice was sufficient. See Opp. at 7-8. To the extent the officers’ prior interactions with Harman 16 provided notice of the kind of sound prohibited by the Ordinance, this argument would only be 17 relevant in response to Harman’s as-applied challenge. In other words, whether Harman himself 18 was given notice of what the Ordinance proscribed is distinct from the question of whether the 19 language of the Ordinance adequately provides such notice to all persons. Only the latter inquiry 20 is material for the purposes of Harman’s facial challenge. 21 The court agrees with Harman that the second clause of the Ordinance as currently written 22 is vague and subjective. Determining whether a “harsh” or “unusual” noise has or will cause any 23 person physical discomfort is entirely a matter of personal perceptions and lacks virtually any 24 objective standard. An “individual of ordinary intelligence” cannot know whether their expression 25 would be prohibited by the Ordinance because the answer turns on the unique sensitivities of any 26 given person witnessing the noise. For example, one person may find the sound of writing on a 27 chalkboard so “harsh” that he physically cringes, while another person may get physically sick to 28 15 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 her stomach at the sound of an “unusual” noise because she associates it with a troubling personal 2 experience, even though the same noise would not upset “people of ordinary sensitivities.” The 3 ambiguity inherent in this language fails to provide adequate notice of the kind of noise prohibited 4 by the Ordinance, and opens the Ordinance up to subjective and arbitrary enforcement by 5 government officials. See Grayned, 408 U.S. at 108–09; Foti, 146 F.3d at 639. Accordingly, the 6 court concludes that, at a minimum, Harman has demonstrated that there is a serious question 7 requiring further litigation as to whether the second clause of section 9.36.020 is void for 8 vagueness. 9 10 ii. Facial Challenge to 9.40.010 et seq. Harman’s third facial challenge asserts that Chapter 9.40 of the SCMC, governing United States District Court Northern District of California 11 amplification permits, is an unconstitutional prior restraint because it gives unfettered discretion to 12 licensing officials. MPI at 16-19. In relevant part, Harman challenges two sections of the 13 Amplification Ordinance. Section 9.40.030, addressing the granting or denial of a permit, 14 provides: 15 16 17 18 19 The police chief may grant the sound amplification permit if he determines that the sound amplification will be conducted in such a manner as not to unreasonably disturb the neighbors or other persons in the vicinity of the sound amplification, and if he further determines that if actually implemented, the steps to be taken by the applicant to minimize or avoid such disturbance will be adequate. In granting a permit, the police chief may impose such conditions as may be appropriate or necessary in order to protect the public peace and safety. And section 9.40.040, addressing the revocation of a permit, provides: 20 21 22 23 24 25 26 27 28 Any permit granted pursuant to this section shall be revocable at any time by the police chief for good cause. Harman asserts that Chapter 9.40 contains no meaningful standard to guide officials in granting, denying, and/or revoking amplification permits, and thus affords officials total discretion to regulate expression based on content under the guise of “public peace and safety.” Id. There is a heavy presumption against the validity of a prior restraint. Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)). As discussed, the government may impose some restrictions on the time place and 16 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 manner of First Amendment expression in public forums only if the restrictions are (1) content- 2 neutral, (2) narrowly tailored to a significant government interest, and (3) provide an alternate 3 channel of communication. Gaudiya, 952 F.2d at 1065. “As an application of the requirement that 4 restrictions be narrowly tailored, a law cannot condition the free exercise of First Amendment 5 rights on the ‘unbridled discretion’ of government officials.” Id. (citing City of Lakewood v. Plain 6 Dealer Publishing Co., 486 U.S. 750, 755 (1988)). Indeed, “[w]hen an approval process lacks 7 procedural safeguards or is completely discretionary, there is a danger that protected speech will 8 be suppressed impermissibly because of the government official’s ... distaste for the content of the 9 speech.” Young v. City of Simi Valley, 216 F.3d 807, 819 (9th Cir. 2000); see also Forsyth, 505 U.S. at 130 (holding that the unchecked discretion of licensing process has the potential to 11 United States District Court Northern District of California 10 suppress First Amendment freedoms). 12 Courts do not demand “perfect clarity and precise guidance” in a statute. Ward, 491 U.S. 13 at 794. However, to prevent suppression of First Amendment freedoms, a law subjecting 14 protected expression to prior restraint must contain “narrow, objective, and definite standards to 15 guide the licensing authority.” Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969). Absent 16 such standards, a licensing system will generally be invalided as an unconstitutional prior restraint. 17 For example, in Saia v. New York, the Supreme Court found that an amplifier permitting system 18 controlled by the chief of police was an unlawful prior restraint. 334 U.S. 587, 559-61 (1948). 19 The Court explained that use of loud-speakers was an indispensable part of public speech, and did 20 not look kindly on regulations that sought to control such speech through the pretext of controlling 21 public “nuisance.” Id. at 561. The court invalided the ordinance, finding that it restrained the 22 right of free speech by delegating to the police chief the authority to allow or disallow the use of 23 speakers without any prescribed standard for the exercise of this discretion, such as hours or 24 decibel levels. Saia, 334 U.S. at 559–60, 68. 25 In Gaudiya, the Ninth Circuit upheld a permanent injunction issued by this court enjoining 26 the enforcement of a city ordinance that regulated nonprofit groups’ ability to sell merchandise on 27 public sidewalks by requiring them to obtain a “peddler’s permit” from the police department. 28 17 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 952 F.2d at 1065. The Ninth Circuit agreed that the Ordinance’s permitting provision was facially 2 unconstitutional because it allowed for the denial or revocation of the permit at the discretion of a 3 police chief. Id. The court took particular issue with the ordinance’s permissive language, “the 4 Chief of Police may issue a permit …,” explaining that this language did not offer explicit limits 5 for granting or denying the permits. Id. at 1065-66 (emphasis in original). Accordingly, the Ninth 6 Circuit affirmed the district court’s finding that “the city ordinance was unconstitutional on its face 7 because it permitted the denial or revocation of a permit on the basis of discretionary judgment by 8 the Chief of Police.” Id. 9 This court also granted a preliminary injunction on similar grounds in Citizens for Free Speech, LLC v. County of Alameda, finding that the plaintiff had established a likelihood of 11 United States District Court Northern District of California 10 success on the merits of its claims that multiple provisions of an ordinance were unconstitutional 12 because they afforded unfettered discretion to city officials. 62 F. Supp. 3d 1129, 1141 (N.D. Cal. 13 2014). There, the court invalidated a provision allowing signs to be posted “when approved by the 14 director of the public works agency,” as well as a provision affording the Planning Commission 15 discretion to grant or deny “conditional use permits” if, “in the planning commission’s opinion, 16 [the permit] would not ‘materially change the provisions of the approved land use and 17 development plan.’” Id. (emphasis in original). 18 Here, the word “may” in the permitting provision is a permissive term that gives the police 19 chief – or the police chief’s designee – broad discretion to authorize the use of sound amplification 20 “if he determines that the sound amplification will be conducted in such a manner as not to 21 unreasonably disturb the neighbors or other persons in the vicinity of the sound amplification…” 22 § 9.40.030. Defendants argue that this language offers definite guidelines for the licensing 23 official in that it requires the official to assess whether it will “unreasonably disturb” individuals in 24 the area. While the court agrees that this language provides some guidance as to when a permit 25 must be denied – i.e. when the official determines that sound amplification would “unreasonably 26 disturb” others – the language provides no requirement that a permit ever be granted. Much like 27 the peddling-permit requirement rejected by the Ninth Circuit in Gaudiya, the discretion to not 28 18 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 grant a permit even where the other stated requirements are met vests the police chief with 2 “complete power to allow or prohibit [the use of sound amplification] for any reason, including 3 the message conveyed by the [speaker].” Gaudiya, 952 F.2d at 1062; see City of Lakewood, 486 4 U.S. at 772 (striking permit requirement on the grounds that it was unconstitutional to grant an 5 official “unfettered discretion to deny a permit application.”) (emphasis added). Because the use 6 of sound amplification is protected expression, “the scheme grants power to the chief of police to 7 discriminate based on the content of protected expression.” Gaudiya, 952 F.2d at 1062; see also 8 N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984) 9 (explaining that broad discretion “grants officials the power to discriminate and raises the spectre 10 of selective enforcement on the basis of the content of speech.”) United States District Court Northern District of California 11 Perhaps even more troubling is the Ordinance’s broad revocation provision, which 12 provides that the amplification permit “shall be revocable at any time by the police chief for good 13 cause.” § 9.40.040. The Ordinance provides no additional guidance as to what constitutes “good 14 cause,” and offers no additional limitations on the police chief’s power to revoke a permit. 15 Defendants contend that any perceived inadequacy in the Ordinance is remedied by the 16 fact that, in practice, the City “interpreted and implemented the Municipal Code in a way that 17 forbade the City from making a decision based on the message of the speaker,” and that it has no 18 intention of altering this practice. Opp. at 14; Barry Decl., ¶ 8, Dkt. No. 27. It is true that when 19 evaluating a facial challenge to a state law, a federal court “must consider the [City]’s authoritative 20 constructions of the ordinance, including its own implementation and interpretation of it.” Comite 21 de Jornaleros, 657 F.3d at 946–47 (quoting Forsyth, 505 U.S. at 131); Ward, 491 U.S. at 795. In 22 doing so, courts consider whether “well-understood and uniformly applied practice has developed 23 that has virtually the force of a judicial construction.” Lakewood, 486 U.S. at 770 n. 11. 24 However, courts are not required to insert missing terms into the statute or accept a limiting 25 construction where plain language of the regulation is not “reasonably susceptible” to such a 26 construction. Id. (citing Foti, 146 F.3d at 639; Comite de Jornaleros, 657 F.3d at 946 (rejecting 27 government’s proposed limiting construction; holding that an ordinance prohibiting solicitation 28 19 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 2 cannot be reasonably interpreted to only apply to solicitors who cause motorists to stop). Here, Defendants assert that police officers interpret the Ordinance to allow revocation of an amplification permit after the permit-holder exhibits “conduct that is contrary to the explicit 4 conditions of the permit.” Id. at 14-15; see Barry Decl. ¶ 8. However, the court agrees with 5 Harman that that even if some officers interpreted the Ordinance in this manner, Defendants have 6 not offered any basis on which the court could conclude that this interpretation was so widely 7 understood and enforced as to amount to a “binding judicial or administrative construction, or 8 well-established practice.” Reply at 10 (quoting Lakewood, 486 U.S. at 770). In fact, the 9 evidence in the record suggests the opposite. Exhibit H is an audio recording of the conversation 10 between Harman and Lt. Barry on July 24, 2015, where Lt. Barry stated that he was taking away 11 United States District Court Northern District of California 3 Harman’s amplification permit. Dkt. No. 10-6. When Harman pressed Lt. Barry to explain the 12 reason that he was revoking the permit, Lt. Barry provided a series of inconsistent and unclear 13 responses, including that he had received complaints about Harman’s preaching and that the 14 permit was expired. See id.; Compl. ¶¶ 55-58. Despite Lt. Barry’s multiple references during this 15 conversation to the permit being expired, there does not appear to be any expiration date provided 16 on the permit itself. See Barry Decl., Ex. A. Lt. Barry also made statements suggesting that it was 17 simply within his discretion to revoke the permit, such as “It’s over a year and I’m taking it away 18 from you,” and “I’m in charge of amplification permits, and you have been louder than normal, 19 and so I’m just letting you know that you don’t have amplification permit anymore.” MPI, Ex. H; 20 Compl. ¶¶ 55-57. 21 It is also worth noting that on July 24, 2015, when Lt. Barry revoked Harman’s 22 amplification permit, Harman had not yet been cited for any violation of the Noise Ordinance, nor 23 was he given a citation during that interaction. Id. ¶¶ 52-58. Rather, it was not until 24 approximately three weeks later on August 14, 2015 that Harman actually received citations for 25 his alleged violations of the Noise Ordinance. See MPI Ex. JJ; Compl. ¶¶ 63, 140, 147. As a 26 result, it is not at all clear on what basis Lt. Barry determined that Harman’s conduct was 27 “contrary to the explicit conditions of the permit” at the time he revoked it, thus further 28 20 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 undermining the argument that the City understood and enforced this provision narrowly and 2 consistently. See Opp. at 14-15. Neither the plain language of the revocation provision, nor the 3 behavior of the Santa Cruz police officers evidenced in record demonstrate that the Ordinance is 4 “reasonably susceptible” to the City’s narrowing construction. To the contrary, the interaction 5 between Lt. Barry and Harman on July 24, 2015 indicates not only that the Ordinance affords 6 extensive discretion to the officer in charge permits, but that this discretion has been used to 7 revoke amplification permits for reason extending beyond any narrow construction of the 8 Ordinance offered by the City. While Defendants adamantly attest that they do not condition, grant, or revoke 9 amplification permits based on content, such representations are insufficient where, as here, the 11 United States District Court Northern District of California 10 language of the Ordinance itself does not preclude such an outcome. As the Ninth Circuit 12 explained in Comite de Jornaleros , We cannot simply presume the City will act in good faith and adhere to standards absent from the ordinance’s face. The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 657 F.3d at 946–47 (citing City of Lakewood, 486 U.S. at 770) (internal quotations and citations omitted). Based on the foregoing the court finds that Harman has demonstrated a likelihood of success on the merits of his facial challenge to Chapter 9.40. B. Other Preliminary Injunction Factors “Even where a plaintiff has demonstrated a likelihood of success on the merits of a First Amendment claim, he ‘must also demonstrate that he is likely to suffer irreparable injury in the absence of a preliminary injunction, and that the balance of equities and the public interest tip in his favor.’” Thalheimer v. City of San Diego, 645 F.3d 1109, 1128 (9th Cir. 2011) (quoting Klein v. City of San Clemente, 584 F.3d 1196, 1207 (9th Cir. 2009)). i. Irreparable Harm and Standing With respect to irreparable harm, Defendants’ argue that Harman lacks standing to seek 27 injunctive relief because he is not suffering irreparable harm. In support of this position, 28 21 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 Defendants cite cases for the proposition that speculation as to whether a plaintiff would be 2 arrested again in the future fails to establish a likelihood of irreparable injury. See, e.g., City of 3 Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983) (holding that a party seeking equitable relief 4 in federal court “must show that he has sustained or is in immediate danger of sustaining some 5 direct injury as the result of the challenged official conduct and the injury or threat of injury must 6 be both real and immediate, not conjectural or hypothetical.”); Eggar v. Nutbrock, 40 F.3d 312, 7 317 (9th Cir. 1994) (holding that a “chain of speculative contingencies” regarding whether 8 plaintiffs would be arrested again in the future fail to show the kind of “real and imminent threat” 9 required for standing). Defendants’ argument, as well as the cases upon which it is based, are 10 United States District Court Northern District of California 11 unpersuasive and inapplicable to this case. It is well established that “[t]he loss of First Amendment freedoms, for even minimal 12 periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 13 (1976); accord Thalheimer, 645 F.3d at 1128; S.O.C., 152 F.3d at 1148; Citizens for Free Speech, 14 62 F. Supp. 3d at 1142–43. There is no dispute that religious speech is considered a First 15 Amendment freedom. See Capitol Square Review & Advisory Bd. V. Pinette, 515 U.S. 753, 760 16 (1995). “Under the law of this circuit, a party seeking preliminary injunctive relief in a First 17 Amendment context can establish irreparable injury sufficient to merit the grant of relief by 18 demonstrating the existence of a colorable First Amendment claim.” Viacom Int’l, Inc. v. FCC, 19 828 F. Supp. 741, 744 (N.D. Cal. 1993). 20 Because the court found that Harman has established a likelihood of success or serious 21 question on the merits of his First Amendment claims, it follows that he – or other third parties – 22 are likely to suffer irreparable injury if a preliminary injunction is not issued. Thalheimer, 645 23 F.3d at 1128 (affirming district court’s grant of partial injunction enjoining enforcement of 24 campaign finance ordinance relying on “a long line of precedent” establishing that the denial of 25 one’s First Amendment rights conclusively constitutes an irreparable injury); Citizens for Free 26 Speech, 62 F. Supp. 3d at 1143 (“Because infringement of First Amendment freedoms is an 27 irreparable injury, Plaintiffs will be irreparably injured if the County is allowed to enforce the 28 22 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 Zoning Ordinance.”); see also S.O.C., 152 F.3d at 1142 (“As a general rule, a litigant has standing 2 only to vindicate his own constitutional rights. The Supreme Court, however, has recognized an 3 exception to this general rule for laws that are written so broadly that they may inhibit the 4 constitutionally protected speech of third parties.”); Foti, 146 F.3d at 635 (same). 5 ii. Public Interest and Balance of Equities A plaintiff seeking injunctive relief must also demonstrate that the injunction is in the 6 public interest. Winter, 555 U.S. at 20. The court must weigh the harm likely to be suffered by 8 the City if the injunction is granted against the injury that will likely befall the plaintiff if it is not. 9 The Ninth Circuit has consistently “recognized the significant public interest in upholding free 10 speech principles, as the ongoing enforcement of the potentially unconstitutional regulations ... 11 United States District Court Northern District of California 7 would infringe not only the free expression interests of [a plaintiff], but also the interests of other 12 people subjected to the same restrictions.” Klein, 584 F.3d at 1208. However, this interest is not 13 absolute, and may give way to a “strong showing of other competing public interests.” Id. Here, while the court is cognizant of the government’s legitimate interest in protecting its 14 15 citizens from unreasonable and disruptive noise, this does not overcome the significant public 16 interest in freedom of speech. See Ward, 491 U.S. at 791. Harman has demonstrated a likelihood 17 of success on the merits of his constitutional challenges to the Noise and Amplification Ordinance 18 on First Amendment grounds. Harman has further shown that he is likely to suffer irreparable 19 harm from the suppression of his First Amendment rights if the at-issue provisions of the SCMC 20 are not enjoined. Accordingly, the court finds that the City’s interest in preserving the ordinances’ 21 limitations as currently written does not outweigh the public interest in upholding First 22 Amendment principles. The City may still protect its interest in preventing excessive noise by 23 revising the relevant provisions of the Noise and Amplification Ordinance. Based on the foregoing, the court finds that Harman has sufficiently demonstrated that the 24 25 26 27 28 balance of equities and public interest favor the requested injunction. C. As-Applied Challenge to 9.36.020 and 9.40.010 et seq. In addition to Harman’s facial challenges, the court acknowledges that Harman alleges that 23 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 1 sections 9.36.020 and 9.40.010 et seq. are also unconstitutional as applied to him, and sought a 2 preliminary injunction on this basis as well. However, because the court finds that a preliminary 3 injunction as to Harman’s the facial challenges is justified, the court need not address Harman’s 4 as-applied claims, because any injunctive relief sought by such claims will be encompassed by the 5 injunction issued on the basis of the facial challenges. 6 IV. 7 8 9 ORDER Based on the foregoing, the court GRANTS IN PART and DENIES IN PART Harman’s Motion for a Preliminary Injunction as follows: (1) The City is preliminarily enjoined from enforcing the first clause of Santa Cruz Municipal Code Section 9.36.020 to the extent that such enforcement is based on the prohibition 11 United States District Court Northern District of California 10 against noises or sounds that are “physically annoying.” However, the court declines to enjoin 12 section 9.36.020’s prohibition on noises or sounds which are “unreasonably disturbing…to people 13 of ordinary sensitivities.” 14 (2) The City is preliminarily enjoined from enforcing the second clause of Santa Cruz 15 Municipal Code Section 9.36.020, which prohibits any noises or sounds that “are so harsh or so 16 prolonged or unnatural or unusual in their use, time or place as to cause physical discomfort to any 17 person.” 18 (3) The City is preliminarily enjoined enforcing Santa Cruz Municipal Code Section 19 9.40.010 et seq., which requires a permit in order to use any sound-amplifying device or 20 equipment and governs the process through which a permit may be granted, denied, or revoked. 21 (4) The preliminary injunction shall remain in effect until further order of the court. 22 (5) Because the City has not demonstrated a risk of monetary loss from the issuance of 23 24 25 26 27 28 a preliminary injunction, no bond will be required. IT IS SO ORDERED. Dated: July 5, 2017 ______________________________________ EDWARD J. DAVILA United States District Judge 24 Case No.: 5:16-cv-04361-EJD ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.