Grossman v. City of Portland, 92-35492

• Decision Date: 06 September 1994
• Docket Number: No. 92-35492,92-35492
• Citation: 33 F.3d 1200
• Parties: Charles M. GROSSMAN, M.D., Plaintiff-Appellant, v. CITY OF PORTLAND, a public body, and Todd Davis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1200

33 F.3d 1200

63 USLW 2168

Charles M. GROSSMAN, M.D., Plaintiff-Appellant, v. CITY OF PORTLAND, a public body, and Todd Davis, Defendants-Appellees.

No. 92-35492.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1993.

Decided Sept. 6, 1994.

Appeal from the United States District Court for the District of Oregon.

Karl G. Anuta, Jolles, Sokol & Bernstein, Portland, OR, for plaintiff-appellant.

Harry Auerbach, Deputy City Atty., Portland, OR, for defendants-appellees.

Before: REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges.

REINHARDT, Circuit Judge:

This appeal presents us with the question of the constitutionality of an ordinance requiring all speakers, demonstrators, and entertainers to obtain a permit before making use of the public parks.

Under former section 20.08.010 of the Portland City Code, it was unlawful for any person "to conduct or participate in any organized entertainment, demonstration, or public gathering, or to make any address, in a park" without a written permit issued by the Parks Commissioner. Unaware of this ordinance, and lacking the required permit members of the local chapter of Physicians for Social Responsibility staged a small, peaceful anti-nuclear protest, involving six to eight people, in Portland's Waterfront Park. Dr. Charles Grossman carried a sign in the protest and was arrested and handcuffed by Portland police officers. He subsequently sued the City of Portland ("the City") and the primary arresting officer under 42 U.S.C. Sec. 1983, claiming that the arrest violated his First Amendment right to free speech. We agree, and reverse in part the district court's grant of summary judgment to defendants.

I.

During the Portland Rose Festival in June of 1990, the USS New Jersey, a navy ship equipped with nuclear weapons, was stationed in Portland Harbor adjacent to Waterfront Park. Members of the local chapter of Physicians for Social Responsibility decided to demonstrate in Waterfront Park in opposition to the presence of nuclear weapons in the harbor. A small group planned the protest a few days in advance, but did not attempt to obtain a permit for use of the park since they did not believe that one was required. Dr. Grossman, a doctor and a member of Physicians for Social Responsibility, participated in the protest.

As Dr. Grossman describes the relevant events:

I was standing silently with several other doctors and a few others with a sign in my hand saying "Rose Festival is a fun time, we don't need nuclear weapons." About 2:30 P.M., 3 or 4 policemen approached and asked us to leave. I asked why and was told that we have no right to stand in a city park carrying a sign. I then asked what ordinance said we had no such right. I was told by one officer we were violating an ordinance, and I do not recall if he quoted a number. I put my sign down and said "O.K. I am not carrying a sign." His response was that if I did not leave within 30 seconds I would be forcibly removed. I said we were creating no disturbance and again asked why such a confrontation was necessary. I took out my pen and paper and asked him for his name and number. While I was writing my two arms were forcibly seized, forced behind my back and handcuffs were applied. I was walked out of the park area, about 30 feet, to a Police car.

At the time Dr. Grossman was arrested, the Portland Rose Festival Association held an exclusive permit for use of Waterfront Park. Officer Todd Davis, the primary arresting officer, knew of the grant of exclusive rights to the Rose Festival adherents, and was aware that the members of Physicians for Social Responsibility were demonstrating without having obtained the City's permission in advance. His characterization of the events differs from Dr. Grossman's principally in that he asserts that prior to the arrest Dr. Grossman "became argumentative" with him and refused to leave the park voluntarily.

The arresting officers drove Dr. Grossman to the police command post, and cited him for violating PCC 20.12.030 and 20.12.240. PCC 20.12.030, now amended, prohibited persons from attaching signs or other objects to park property. ¹ PCC 20.12.240 prohibits persons from refusing to obey a reasonable directive of a police officer. ² As the penalty for his conduct, Dr. Grossman was issued an exclusion order prohibiting him from returning to Waterfront Park for thirty days.

Dr. Grossman appealed the exclusion order. The City's Code Hearing Officer, pursuant to a stipulation by the City Attorney's Office, concluded that PCC 20.12.030 did not prohibit Dr. Grossman from carrying a sign in the park. ³ Accordingly, the order was pronounced void.

Dr. Grossman subsequently filed this Sec. 1983 action in state court against the City and Officer Davis. Claiming that his arrest in Waterfront Park violated his rights of free speech and assembly under the First Amendment, he requested damages for injuries allegedly suffered during the arrest, as well as punitive damages. ⁴ The defendants removed the case to federal district court. There they argued that Dr. Grossman's arrest was valid under former PCC 20.08.010 ("section 010"), which bars persons from, among other things, participating in an "organized ... demonstration" in a public park without a permit. ⁵ After several months during which discovery was conducted, the district court granted the defendants' motion for summary judgment in May 1992. ⁶

In explaining its judgment, the court adopted a somewhat unusual approach to the legal issues. It did not reach the question whether section 010 was unconstitutional, but instead rested its holding solely on the fact that under that section the arresting officers had probable cause to make the arrest. It then reasoned that because probable cause to arrest existed, the officers' actions were "privileged" and both the City and Officer Davis were protected from liability.

Dr. Grossman timely appeals to this court.

II.

The district court relied upon City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986), in holding that because the arresting officers had probable cause to arrest Dr. Grossman under section 010, ⁷ the arrest was "privileged" and both Davis and the City were protected from liability. This is a clear misreading of Heller.

Heller holds that when a person sues under Sec. 1983 for an allegedly unconstitutional arrest the city cannot be held liable absent a constitutional violation by the arresting officer. The specific constitutional violations alleged in Heller were that the arrest was made without probable cause and with unreasonable force. Heller, 475 U.S. at 797, 106 S.Ct. at 1572. Therefore, the jury's finding of probable cause and reasonable force obviated the plaintiff's constitutional claim, because it meant that the plaintiff had suffered no constitutional injury.

Here, in contrast, Dr. Grossman's constitutional claim does not stem from an absence of probable cause to arrest, but from the alleged unconstitutionality of the ordinance justifying the arrest. Therefore, a finding of probable cause under the ordinance in no way renders the arrest "privileged," or immunizes the defendants from liability. Instead, if the ordinance is unconstitutional, Dr. Grossman suffered constitutional injury despite the ordinance's applicability to his conduct. See Gerritsen v. City of Los Angeles, 994 F.2d 570 (9th Cir.) (upholding Sec. 1983 damages action because of enforcement of unconstitutional permit requirement for handbill distribution in public park), cert. denied, --- U.S. ----, 114 S.Ct. 306, 126 L.Ed.2d 253 (1993).

The key issue in the present case, as in Gerritsen, is whether the city ordinance is unconstitutional. The district court was fundamentally mistaken in not considering this issue. In fact, the only way that the district court could have correctly avoided deciding the constitutionality of section 010 would have been to find that the ordinance did not cover Dr. Grossman's conduct or that Davis was not acting pursuant to its authority in making the arrest. The district court's finding of probable cause under section 010, rather than precluding an investigation into the ordinance's constitutionality, as the court ruled, had precisely the opposite effect: it required that the court evaluate the ordinance's constitutionality.

III.

It is indisputable that Dr. Grossman and the other members of Physicians for Social Responsibility were exercising their First Amendment rights by demonstrating against the presence of nuclear weapons in Portland harbor. The City argues, however, that the right to demonstrate in Waterfront Park is subject to limitation by virtue of its authority to protect "the safety and convenience" of park users, and that section 010 constituted a constitutional exercise of that authority.

Section 010 provided that:

It is unlawful for any person to conduct or participate in any organized entertainment, demonstration, or public gathering, or to make any address, in a park without the written permission of the [Parks Commissioner].

To obtain a permit, a person was required to file a written application with the Parks Commissioner describing the details of the planned event, and the Commission then had seven days within which either to grant or deny the permit. PCC 20.08.020. Thus, irrespective of the Commissioner's decision on the merits of the permit application, persons wanting to engage in the activities enumerated in the ordinance faced the burden of applying for a permit with the Commissioner and of waiting for up to seven days for his response. The ordinance thus required potential speakers, demonstrators and entertainers to plan their activities well in advance, precluding such persons from using the parks for more spontaneous First Amendment activity.

A.

At the outset, we emphasize that as a "prior restraint" on the exercise of First Amendment rights, section 010 comes to this court ...