511 F.3d 16 (1st Cir. 2007), 06-1177, Sullivan v. City of Augusta

Docket Nº:06-1177.
Citation:511 F.3d 16
Party Name:Timothy SULLIVAN and Lawrence E. Dansinger, Plaintiffs, Appellees, v. CITY OF AUGUSTA, Defendant, Appellant.
Case Date:December 14, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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511 F.3d 16 (1st Cir. 2007)

Timothy SULLIVAN and Lawrence E. Dansinger, Plaintiffs, Appellees,

v.

CITY OF AUGUSTA, Defendant, Appellant.

No. 06-1177.

United States Court of Appeals, First Circuit.

Dec. 14, 2007

Heard Nov. 6, 2006.

Appeal from the United States District Court for the District of Maine, Hon. John A. Woodcock, Jr., United States District Judge.

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Stephen E.F. Langsdorf with whom Sigmund D. Schutz and Preti, Flaherty, Beliveau & Pachios, LLP were on brief for appellant.

David G. Webbert with whom Johnson & Webbert, LLP was on brief for appellees.

Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

CAMPBELL, Senior Circuit Judge.

Defendant-appellant City of Augusta, Maine ("Augusta" or "the City") appeals from the judgment entered in favor of plaintiff-appellees Timothy Sullivan and Lawrence E. Dansinger in the United States District Court for the District of Maine. The court found that several provisions of the City's parade ordinance and of its mass outdoor gathering ordinance (the MOGO) violated the First Amendment.

On appeal, the City challenges the standing of the plaintiffs and the ripeness of their claims, especially their right to protest the MOGO. The City also challenges the district court's rulings that provisions of both ordinances violate the Federal Constitution. We conclude the plaintiffs did not have standing to sue regarding the MOGO's alleged defects, hence we vacate all the rulings of the district court regarding the constitutionality of that ordinance's provisions. We affirm the court's rulings that the advance notice and in-person meeting requirements of the parade ordinance are constitutionally defective and affirm the district court's ruling that the $478.55 overcharge to Sullivan was unconstitutional. However, we reverse its rulings that the fee provision grants excessive discretion to the police and that the parade permit fee of $100 and associated charges for police traffic control are unconstitutional insofar as indigents must pay them without being given an opportunity to seek and secure a waiver on account of their indigency.

Background

On February 9, 2004, acting on behalf of a group known as the March for Truth Coalition, which advocates the "worldwide end of war and empire-building" and major social and economic reforms, Sullivan applied to Augusta's City Police Department

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for a permit under the parade ordinance, infra, proposing three routes over Augusta's streets for a protest march. The march would be held on Saturday, March 20, 2004, between 12:30-2:00 p.m. See Sullivan v. City of Augusta, 310 F.Supp.2d 348, 351 (D. Me. 2004) ("Sullivan I"). The Police Department indicated it would grant the permit, and, in addition to the $100 base fee, charged Sullivan and the Coalition, as provided for in the ordinance, for what the Police Department estimated would be the cost of the extra police officers and police vehicles needed to control and divert traffic during the event. The Police Department also required the Coalition to provide a bond or other insurance.

Claiming the assessed estimate of traffic control costs and the bond were unconstitutional burdens on the exercise of his rights under the First Amendment, Sullivan moved on March 15, 2004 in the district court for a temporary restraining order ("TRO") enjoining the City from imposing these conditions. The same day, Sullivan filed a complaint in the district court challenging the constitutionality of certain provisions not only of the City's parade ordinance, under which he had sought a permit, but also of the City's separate MOGO, under which he had not sought a permit. The district court granted the TRO in part, finding that Sullivan had standing to challenge the parade ordinance and enjoining Augusta from enforcing the bond requirement. The court also considered "the requirements of the application fee and costs of retaining law enforcement services" and concluded that "these portions of the ordinance are constitutional as applied." Sullivan I, 310 F.Supp.2d at 354-55. The City subsequently amended the parade ordinance to delete the bond requirement, but left intact its other provisions. Thereafter, the Coalition paid the required amounts to the City, the parade permit was issued, and the march took place as scheduled on March 20, 2004. Sullivan did not seek, nor is there evidence he ever discussed with the Police, and the City did not request, that he obtain a second permit, under the MOGO, for the March 20, 2004 event.

Sullivan then amended his complaint on September 28, 2004, adding a second plaintiff, Dansinger. Dansinger had applied for a parade permit in August 2004 for a march he wished to hold in October of that same year. After the City Police Department responded to his application with a letter requiring him to pay a fee and costs of almost $2,000, Dansinger responded that he was unable to pay and sought, without response from the City, a waiver of the total amount of fee and costs. No permit was issued, and the proposed October march did not take place.

Discovery followed the filing of the amended complaint, and the parties submitted the case to the district court on a stipulated record and filed cross motions for judgment on liability. A stipulated record "allows the judge to decide any significant issues of material fact that he discovers." Boston Five Cents Sav. Bank v. Sec'y of Dep't of Housing & Urban Dev., 768 F.2d 5, 11-12 (1st Cir.1985). Here, the agreed-upon record included depositions of Sullivan, Dansinger, Joe Bandy (the plaintiffs' expert witness), and Augusta Deputy Police Chief Major Gregoire ("Gregoire"), and affidavits from Gregoire. Following oral argument, the district court issued a decision holding that the plaintiffs had standing to challenge both ordinances, that their claims were ripe, that various provisions both of the parade ordinance and of the MOGO violated the First Amendment of the Federal Constitution, and that there was no need for the court to abstain from ruling on the challenged ordinances.

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Sullivan v. City of Augusta, 406 F.Supp.2d 92 (D. Me. 2005) ("Sullivan II"). The City filed this appeal from the district court's judgment entered in accordance with its decision.

The district court in its decision also found in the City's favor on plaintiffs' claim that it was violative of the Federal Constitution for the City to waive the parade permit fee for an event honoring law enforcement sponsored by the Maine Chiefs of Police Association, of which the City is a member. Plaintiffs did not cross-appeal from that unfavorable finding.

Facts

The following facts are taken from the district court's findings based on the stipulated record. See Sullivan II, 406 F.Supp.2d at 95-99. As noted, Sullivan represented the March for Truth Coalition, which wanted to parade on the streets of Augusta to advocate for a variety of causes, including opposition to the Iraq war. The plaintiffs' challenges to the parade ordinance and the MOGO addressed several elements of both ordinances.

A. Parade Ordinance Fee

Portions of the Parade Ordinance, § 13-5, provide as follows:

(a) No less than thirty (30) days prior to an intended parade, march or other use of public ways within the city, a permit must be applied therefor to the City Police Chief or his designee. The City Manager may allow a shorter time frame for good cause shown.

. . .

(c) Within ten (10) days of applying for the permit, as a condition to its issuance, the applicant must meet with the Police Chief to discuss and attempt to agree on the details of the route and other logistics.

(d) The Police chief may deny the permit or alter the route for traffic or safety reasons and impose reasonable conditions including, but not limited to, time limits, requirement to keep moving and on route, no amplification or sound truck, no explosives, fireworks, or other artificial noise.

(e) The cost of the permit shall be one hundred dollars ($100.00), plus the costs of traffic control per city collective bargaining agreement and clean up costs, as estimated by the Police Department. The permit fee will not include the cost of police protection for public safety. The one hundred dollar ($100.00) fee is payable at the time the application is submitted and the balance at the time of its issuance. The City Council may modify this fee from time to time by Order.

Augusta, Me. Code § 13-5 (1991). "If the permit is denied or modified, the applicant may appeal in writing within five (5) days to the City Clerk's office for determination by the City Council." Id. at § 13-5(g).

B. MOGO

Section 3-116 of the MOGO provides:

(a) It is recognized that a mass outdoor gathering attended by two hundred (200) or more persons may create a hazard to public health and safety. Accordingly, it is deemed to be appropriate and in the interest of the public welfare to regulate the conduct of such gatherings in order to protect the public health and safety.

(b) No person shall sponsor, promote or conduct a mass outdoor gathering with the intent to attract or the understanding that the gathering may attract two hundred (200) or more persons until a permit has been obtained therefor from the Augusta Police Chief or his designee. The application for a permit must

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be submitted no less than thirty (30) days prior to the mass gathering, unless the City Manager allows a shorter time frame for good cause shown.

Augusta, Me. Code § 3-116 (1991).

Section 3-117 states:

The Police Chief shall grant a permit to sponsor...

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