Perry v. Los Angeles Police Dept.

• Decision Date: 25 August 1997
• Docket Number: No. 96-55545.,96-55545.
• Citation: 121 F.3d 1365
• Parties: Harry NMI PERRY; Robert Newman, aka: "Jingles", Plaintiffs-Appellants, v. LOS ANGELES POLICE DEPARTMENT; City of Los Angeles; Jane Doe Rodriguez, Police Officer; Frank Montelongo; Willie L. Williams, Chief of Police, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F.3d 1365

Harry NMI PERRY; Robert Newman, aka: "Jingles", Plaintiffs-Appellants, v. LOS ANGELES POLICE DEPARTMENT; City of Los Angeles; Jane Doe Rodriguez, Police Officer; Frank Montelongo; Willie L. Williams, Chief of Police, Defendants-Appellees.

No. 96-55545.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 4, 1997.

Decided August 25, 1997.

James H. Fosbinder and Rhonda M. Fosbinder, Fosbinder & Fosbinder, Venice, CA, for plaintiffs-appellants.

James K. Hahn, City Attorney, Frederick N. Merkin, Senior Asst. City Attorney, and Vivienne A. Swanigan-Crenshaw, Deputy City Attorney, Los Angeles, CA, for defendants-appellees.

Before: HALL and T. G. NELSON, Circuit Judges and WINMILL, District Judge.^*

CYNTHIA HOLCOMB HALL, Circuit Judge:

Plaintiffs appeal from the district court's judgment for defendants as a matter of law following the presentation of plaintiffs' evidence in a bench trial. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We find Los Angeles Municipal Code § 42.15 facially unconstitutional and REVERSE the judgment of the district court.

I. Facts

Plaintiff Perry is a musician and performance artist who solicits donations for his performances and sells recordings of his music. He is a member of the Sikh religion, and his musical lyrics include excerpts from the Holy Book of his religion and imply religious content.

Plaintiff Newman is an activist who, on behalf of the "Animal Freedom Fighters," an unincorporated group of individuals, solicits donations and distributes messages regarding animals' rights through the sale of literature, books, t-shirts, bumper stickers, buttons, and other articles bearing political slogans, such as "Meat is Murder."

Defendants are the Los Angeles Police Department ("LAPD"), the City of Los Angeles ("the City"), and officers of the LAPD responsible for enforcing Los Angeles Municipal Code § 42.15, which plaintiffs contend is unconstitutional.

Section 42.15 provides, "No person shall hawk, peddle or vend any goods, wares or merchandise, or beg or solicit alms or donations upon" any sidewalk, boardwalk, or public way adjoining a specified length of the Pacific Ocean, including the area known as the Venice Beach Boardwalk ("Boardwalk").

There are two exceptions to this prohibition. One is for the sale of newspapers, magazines, periodicals "or other printed matter commonly sold or disposed of by news-boys or news vendors." The second is for "the solicitation of donations by a non-profit organization and the sale of merchandise by a non-profit organization constituting, carrying or making a religious, philosophical or ideological message or statement relevant to the purpose of said non-profit organization." The exception for non-profit organizations was added in 1991 in response to this circuit's decision in Gaudiya Vaishnava Soc. v. City of San Francisco, 952 F.2d 1059 (9th Cir.1990).

In 1995, both plaintiffs were told by members of the LAPD that they must provide documentation of nonprofit status to continue their activities. Each was given a citation for violation of § 42.15.

The plaintiffs claim that § 42.15 infringes on fundamental First Amendment rights, in violation of the Equal Protection Clause. They challenge section 42.15 as facially unconstitutional, vague and overbroad in that it prohibits political, religious, and other expressive activities.

The district court granted a temporary restraining order on May 8, 1995, enjoining enforcement of the ordinance against individuals who were engaged in expressive activity, while allowing enforcement of the ordinance against vendors engaged in purely commercial sales, such as food.

At a bench trial, plaintiffs presented witnesses Perry and Newman, who testified to the types of goods they sold and the activities for which they solicited donations. At the close of plaintiffs' case, the defendants moved for judgment on partial findings pursuant to Fed.R.Civ.P. 52(c).

The district court granted defendants' motion, adopting the findings of fact and conclusions of law prepared by defendants. In doing so, the court found the following facts: plaintiffs sell wares that are inextricably intertwined with the political, religious, sociological, and ideological messages they contain; the ordinance prohibits the sales of plaintiffs' expressive works; the City has a substantial interest in protecting local merchants from unfair competition and in attracting and preserving business; the City also has a substantial interest in limiting the number of sellers along the Boardwalk to insure the free flow of traffic. The district court concluded that, as a matter of law, the wares plaintiffs sell are fully protected by the First Amendment; section 42.15 is not content based; and section 42.15 is a reasonable time, place and manner restriction on the fully protected speech, citing One World One Family v. City and County of Honolulu, 76 F.3d 1009 (9th Cir.1996). Accordingly, it entered judgment for defendants.

Plaintiffs objected to these findings of facts and law, and the district court rejected those objections. Plaintiffs appeal.

II. Standard of Review

This court reviews a judgment as a matter of law de novo. Pierce v. Multnomah County, 76 F.3d 1032, 1037 (9th Cir. 1996). Constitutional issues are reviewed de novo. United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir.1996). A district court's determinations on questions of law and on mixed questions of law and fact that implicate constitutional rights are reviewed de novo. American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066 (9th Cir.1995).

III. Analysis

A. Facial Challenge

In First Amendment overbreadth cases, courts allow litigants to "challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court." Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980). This is because of "the possibility that protected speech or associative activities may be inhibited by the overly broad reach of the statute." Id. Because plaintiffs' claims are rooted in the First Amendment, they may argue the impact of the ordinance on their own expressive activities, as well as the expressive activities of others. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981). Thus, plaintiffs may bring a facial challenge to this ordinance.

B. Fully Protected Speech

We must first decide whether the activities involved here are accorded full protection under the First Amendment.

There is no dispute that these activities take place in a public forum-a place that has "immemorially been held in trust for the use of the public ... for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. Committee for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939). The Supreme Court has repeatedly recognized public streets as "the archetype of a public forum." Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988).

The items sold here include music, buttons, and bumper stickers bearing political, religious, and ideological messages. These are expressive items, and they do not lose their constitutional protection simply because they are sold rather than given away. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981); see also Schaumburg, 444 U.S. at 633, 100 S.Ct. at 834; Gaudiya, 952 F.2d at 1064-65.

In Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), the Supreme Court found that where the commercial and expressive parts of speech are "inextricably intertwined," a court could not parcel out the protected and unprotected parts of the speech. This court has applied the "inextricably intertwined" standard to merchandise like that at issue here; the Gaudiya court found that the plaintiffs' street sale of merchandise with messages affixed to the products was fully protected because the commercial and noncommercial aspects of speech "inextricably intertwined." Gaudiya, 952 F.2d at 1064-65; see also One World, 76 F.3d at 1012 (finding sale of merchandise bearing political, religious, philosophical or ideological messages "inextricably intertwined" with other forms of protected expression).

Plaintiffs' expressive activities are of the same type found to be fully protected in Gaudiya and in One World and are fully protected by the First Amendment.

C. Government Restriction on Speech

Because the First Amendment fully protects the activities at issue here, the question is whether the government has placed a legitimate restriction on these activities. The government restriction banning sales and solicitations of donations contains an exception for non-profits. When a government allows some forms of protected speech but prohibits other forms of protected speech, the Equal Protection Clause is implicated, and the government must show that the distinctions are "finely tailored to serve substantial state interests." Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed. 2d 263(1980).

In a traditional public forum, time, place, and manner restrictions on protected speech are acceptable only if they are content neutral, "serve a significant state interest in a narrowly tailored fashion," and "leave open ample alternative communication channels." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983); see also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984). We examine each requirement in turn.

1. Content Neutral

A regulation is content neutral if it is "justified without reference to the content of the regulated speech." Clark, 468 U.S. at 293, 104...