Rosenbaum v. City and County of San Francisco

• Citation: 484 F.3d 1142
• Decision Date: 30 April 2007
• Docket Number: No. 05-15266.,05-15266.
• Parties: Lawrence ROSENBAUM; Eric Livingston, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO; Fred Lau, in his official capacity as Chief of the San Francisco Police Dept.; Joel Robinson, in his official capacity as Superintendent of the Recreation and Parks Dept., City and County of San Francisco; Anthony Delucchi, in his official capacity as Director of Property, Real Estate Dept., City and County of San Francisco, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

484 F.3d 1142

Lawrence ROSENBAUM; Eric Livingston, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO; Fred Lau, in his official capacity as Chief of the San Francisco Police Dept.; Joel Robinson, in his

official capacity as Superintendent of the Recreation and Parks Dept., City and County of San Francisco; Anthony Delucchi, in his official capacity as Director of Property, Real Estate Dept., City and County of San Francisco, Defendants-Appellees.

No. 05-15266.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2006.

Filed April 30, 2007.

Russell Davis, San Francisco, CA; and Frederick H. Nelson, American Liberties Institute, Orlando, FL, for the plaintiffs-appellants.

Dennis J. Herrera, City Attorney; Molly Stump, Chief Attorney, Public Protection Unit; and Margaret W. Baumgartner, Deputy City Attorney, for defendant-appellee City of San Francisco.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-96-03409-MMC.

Before T.G. NELSON, RONALD M. GOULD, and CONSUELO M. CALLAHAN, Circuit Judges.

GOULD, Circuit Judge.

We here consider the free speech rights of Christian evangelists who operate religious outreach with the use of amplified sound in the streets of San Francisco, and whose efforts have collided with the City of San Francisco's prerogative under its noise ordinance and permitting scheme to ensure that its citizens are not subject to unreasonably loud speech and music. Plaintiffs-Appellants Lawrence Rosenbaum and Eric Livingston filed suit in the Northern District of California alleging constitutional claims under the First and Fourteenth Amendments that arose out of appellee City of San Francisco's permitting process and noise ordinance enforcement, which the district court denied after a bench trial. We have jurisdiction under 28 U.S.C. § 1291.

On appeal, appellants claim that San Francisco police officers unevenly enforced the municipal noise ordinance, in violation of equal protection, by frequently stopping or conditioning appellants' use of amplified sound while leaving other groups' and individuals' loudspeaker use unmolested. Appellants also contend that city officials engaged in viewpoint discrimination. In particular, appellants claim that city officials implemented a "heckler's veto" by responding to complaints by citizens who were hostile to appellants' Christian message. Appellants lodge a second viewpoint discrimination claim that issuance of permits and enforcement were marred by unbridled discretion, and that city police stopped giving permits to appellants for amplified sound activities relying on noise abatement as a pretext to mask viewpoint discrimination. As a third viewpoint discrimination claim, appellants assert that city police cited appellants for disturbing the peace without probable cause because of disagreement with the subject-matter of appellants' speech. Appellants also claim that city officials improperly denied sound permits due to prior restraint where applications were rejected based on appellants' past non-compliance with permit conditions and past violations of the noise ordinance. Finally, appellants argue that the district court erred in not granting relief under the California Constitution's broader protections of free speech. We affirm the district court.

I

Appellants are Christian evangelists who are staff members of American Christian Enterprises, a non-profit charity organization. Appellant Rosenbaum operates a ministry affiliated with the "SOS Ministries" in San Francisco, which conducts religious outreach. Since 1978, appellants have preached a Christian evangelical message in the streets and parks of San Francisco with amplified sound.

Appellee City of San Francisco ("the City") has adopted under section 47.2 of the San Francisco Police Code ("Police Code") a time, place, and manner restriction that provides, inter alia, that "[a]mplified speech and music shall not be unreasonably loud, raucous, jarring or disturbing to persons of normal sensitiveness." See S.F.P.C. § 47.2(5). However, individuals or groups seeking to use amplified sound that might exceed volume levels prohibited under § 47.2 may apply for permits under § 43 of the Police Code. Under § 43, the police commissioner¹ has discretion to issue permits for amplified sound for a variety of purposes including public affairs interests. Applicants must designate the time, location and purpose of the permit, see § 43(c), and are subject to conditions under S.F.P.C. §§ 47.2 and 49.² Denied permits may be contested before the head of the Permit Section where public comment can be considered, or in an administrative proceeding. Police investigations of excessive noise, due to unpermitted amplification, amplification contrary to permit restrictions or volume of amplification, are typically initiated after a citizen complaint. San Francisco police officers may inquire about unacceptably loud noise, issue citations and/or arrest the speaker/ performer if they have probable cause under section 415 of the California Penal Code that a user of sound amplification intends to "maliciously and willfully" create "loud and unreasonable noise." See Cal. Pen.Code § 415.

For almost three decades, Rosenbaum and Livingston have requested and from time to time received numerous permits from the City for sound amplification to conduct their outreach. Beginning in late 1995, however, many of appellants' permit applications were denied or issued with significant restrictions for specific events. In addition, appellants began to encounter increasing attention from the San Francisco police who, in response to citizen complaints on specified occasions, admonished, cited or arrested appellants, or threatened such sanctions, for not having a necessary permit for their amplified sound, for not complying with the limitations on their permit, or for using excessively loud amplification.

On September 19, 1996, appellants filed suit in the United States District Court for the Northern District of California against the City and County of San Francisco and three city officials in their official capacity (collectively "the City"), seeking injunctive and declaratory relief. Appellants asserted eight claims based on events alleged to have occurred between May 28, 1990 and August 9, 1996:(1) "Enjoinment of San Francisco Police Code § 47.2 on grounds of vagueness and overbreadth"; (2) "Enjoinment of Police Code § 47.2 and Penal Code § 415 and unlawful permitting procedures on equal protection grounds"; (3) "Enjoinment of enforcement of the `heckler's veto' against plaintiffs"; (4) "Enjoinment of the denial of government permits because said denial is a prior restraint on the free speech rights of the plaintiffs"; (5) "For violation of Title 42 U.S.C. Section 1983"; (6) "For civil conspiracy and for conspiracy to interfere with civil rights in violation of 42 U.S.C. section 1985"; (7) "Violation of the Religious Freedom Restoration Act"; and (8) "Pendent State Claim for violation of California Constitution Article I, sections 1, 2 and 4." Thereafter, appellants moved for a preliminary injunction to prohibit the City from enforcing § 47.2 of the Police Code and § 415 of the California Penal Code. On November 8, 1996, the district court denied the preliminary injunction, which we upheld on March 26, 1997. See Rosenbaum v. City & County of San Francisco, 110 F.3d 69 (9th Cir.1997) ("Rosenbaum I") (unpublished opinion).

In January 1998, the City filed the first of two summary judgment motions. On June 15, 1998, the district court granted partial summary judgment in favor of the City on appellants' First, Sixth and Seventh claims, concluding that the amplification restrictions under § 47.2 were facially constitutional. Appellants did not appeal these rulings. On August 30, 1999, the district court granted the City's motion for summary judgment on the balance of appellants' claims. On April 19, 2001, we reversed, holding that genuine issues of material fact remained regarding appellants' equal protection and First Amendment claims. See Rosenbaum v. City & County of San Francisco, 8 Fed.Appx. 687 (9th Cir.2001) ("Rosenbaum II") (unpublished opinion). In reaching this decision with respect to the equal protection claims, we relied on facts not alleged in the complaint, namely allegations that "small groups were allowed to engage in amplified speech activities in the same locations for which plaintiffs were denied permits, and that other small groups were violating the noise ordinances in the same manner as plaintiffs but were not cited or arrested." Id. at 691. As examples of this alleged conduct, we referred to incidents that post-dated the filing of the complaint to support our conclusion that "at the summary judgment stage, this as well as other evidence in the record . . . suffices to raise a genuine issue of material fact as to whether there was a `policy, plan, or a pervasive pattern' of misconduct." Id. at 690.

On November 6, 2001, appellants moved to amend their complaint to substitute defendants and to assert a claim for damages by Livingston involving similar circumstances. Aside from granting the substitution of defendants, the district court denied the motion to amend because an additional damages claim under new factual allegations was unduly delayed and would have prejudiced the City.

At a bench trial in December of 2002, based on the parties' stipulation the district court determined at the outset that the following claims remained: (1) an equal protection claim based on the manner in which the City issued permits and enforced permit requirements for amplified sound; (2) a First Amendment claim based on viewpoint discrimination (or "heckler's veto") in the City's issuance of permits and enforcement of permit requirements; (3) a First Amendment claim of prior restraint in the alleged...