Seattle Coal. Stop Police Brut. v. City of Seattle

• Decision Date: 12 December 2008
• Docket Number: No. 06-35597.,06-35597.
• Citation: 550 F.3d 788
• Parties: SEATTLE AFFILIATE OF the OCTOBER 22ND COALITION TO STOP POLICE BRUTALITY, REPRESSION AND the CRIMINALIZATION OF A GENERATION, an unincorporated association, Plaintiff-Appellant, v. CITY OF SEATTLE; R. Gil Kerlikowske, Chief of Seattle Police Department; Sergeant Doe, a Seattle Police Sergeant; Lieutenant Doe, a Seattle Police Lieutenant; Officer Doe, a Seattle Police Officer; Eric Sano; Steven Paulsen, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

550 F.3d 788

SEATTLE AFFILIATE OF the OCTOBER 22ND COALITION TO STOP POLICE BRUTALITY, REPRESSION AND the CRIMINALIZATION OF A GENERATION, an unincorporated association, Plaintiff-Appellant, v. CITY OF SEATTLE; R. Gil Kerlikowske, Chief of Seattle Police Department; Sergeant Doe, a Seattle Police Sergeant; Lieutenant Doe, a Seattle Police Lieutenant; Officer Doe, a Seattle Police Officer; Eric Sano; Steven Paulsen, Defendants-Appellees.

No. 06-35597.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2008.

Filed December 12, 2008.

Michael K. Ryan (argued), Ryan Drew Redekopp and Alex Wagner, Preston Gates & Ellis LLP, Seattle, WA, and Aaron H. Caplan, American Civil Liberties Union of Washington, Seattle, WA, for the plaintiff-appellant.

Carlton W.M. Seu (argued), Assistant City Attorney, and Thomas A. Carr, City Attorney, Seattle, WA, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-04-00860-RSL.

Before: RAYMOND C. FISHER, RONALD M. GOULD and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge FISHER; Dissent by Judge IKUTA.

FISHER, Circuit Judge:

We are presented with a conflict between those who wish to conduct a parade on Seattle's city streets—a forum historically preferred by people who want to demonstrate their messages of honor, celebration or, as in this case, protest—and the city's interests in traffic safety. The City of Seattle by ordinance gives its police chief, when issuing a parade permit, the discretion to require marchers to use the sidewalks instead of the city streets. The issue is whether the ordinance violates the free speech guarantees of the First Amendment because on its face it impermissibly grants "the licensing official ... unduly broad discretion." Thomas v. Chi. Park Dist., 534 U.S. 316, 323, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). We conclude that the ordinance by its terms gives the Chief of Police unbridled discretion to force marchers off the streets and onto the sidewalks, unchecked by any requirement to explain the reasons for doing so or to provide some forum for appealing the chief's decision. We therefore hold that the parade ordinance is facially unconstitutional.

I. Factual and Procedural Background

The Seattle affiliate of the October 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation ("Coalition") is an unincorporated association dedicated to raising awareness of the problem of police brutality. It is part of a national coalition with 40 affiliates in cities throughout the United States; the focus of these affiliates' efforts is holding a coordinated annual day of protest on October 22. Every year since 1996, the Coalition's Seattle members have held parades, rallies and speeches on this day in order to publicly commemorate their "National Day of Protest to Stop Police Brutality." The Coalition intends to continue holding these events annually in the future.

The City of Seattle requires anyone wishing to conduct a parade in Seattle to first obtain a permit from the Seattle Chief of Police. The relevant ordinance states:

No person shall conduct or participate in a parade upon any street or alley in the City without first submitting a written notification to the Chief of Police and obtaining a permit from the Chief of Police to do so. Upon written notification to the Chief of Police, the Chief of Police shall grant a permit. So that preparations for traffic regulation can be made, the written notification for permit shall state the place and hour of formation, the proposed line of movement or march, the scheduled starting time, and the names of the persons having charge or control.... The Chief of Police may modify the place and hour of formation, the proposed line of movement or march, and the scheduled starting time in the interest of vehicular or pedestrian traffic safety.

Seattle Mun.Code Ord. 11.25.020 (hereinafter "Parade Ordinance").¹ Another Seattle ordinance defines a "parade" as "any organized movement or march of persons and/or things which requires the closure of streets to prevent a conflict with the regular flow of vehicular traffic." SMC 11.14.410. A group wishing to hold a parade must apply for a permit at least 48 hours in advance. See SMC 11.25.020.

The Coalition has applied for and received a parade permit from the Seattle Chief of Police every year since 2001. Over the course of several years, however, these permits have been subjected to conditions that the Coalition found objectionable. In both 2002 and 2004, the Seattle Chief of Police issued parade permits requiring the Coalition's marchers to "use the sidewalk and obey traffic control signals" if there were fewer than 200 marchers present.² The Coalition's 2003 parade permit did not contain any minimum numbers requirement, but on the day of the march, Seattle police officers instructed the Coalition to use the sidewalks. Coalition members protested that the permit gave them the right to march on the streets, but one of the police officers present told group members that the parade permit had been "rescinded" and that the decision to rescind was "based on the number" of marchers, which was estimated to be between 80 and 100. Under protest, the Coalition's 2003 parade proceeded on the sidewalk along the designated route, with police escorting the marchers on foot and bicycle.

Seattle does not include a minimum numbers requirement in all—or even most—parade permits as a condition of allowing marchers to utilize the streets, nor does it set the minimum requirement at a consistent number when it does impose one. Seattle issued 279 parade permits between January 1999 and July 2005, of which 25, or approximately nine percent, imposed some form of a minimum numbers requirement as a prerequisite to marching in the street. Twenty-one of these permits required a minimum of 200 participants, while the remaining set limits that varied between 50 and 500 participants. The Coalition maintains that Seattle's permitting practices reveal that political or protest marches were more likely than other parades to have their permission to use the streets conditioned on gathering a minimum number of marchers. The district court agreed, noting that "a review of defendants' permitting decisions over the last few years shows that applications for political and/or protest marches are more likely to garner a minimum participant requirement than are community or sports-related events." This conclusion is borne out by the record, which shows that while not all expressly political or protest marches received such conditional permits, a minimum numbers requirement was disproportionately likely to be imposed on political, as opposed to community or religious, events.

The Coalition brought this action in federal district court, contending that the conduct of Seattle's police officers at the Coalition's 2003 parade violated their free speech and due process rights and that Seattle's Parade Ordinance on its face violates the First Amendment to the U.S. constitution, as well as provisions of the Washington state constitution. On crossmotions for summary judgment, the district court held that the Parade Ordinance does not violate the First Amendment on its face. The parties agreed to settle the Coalition's free speech claim as applied to the officers' conduct during the 2003 parade, and so all that remains before us on appeal is the facial challenge. We review the district court's decision on cross-motions for summary judgment de novo. Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir.2002). We reverse.

II. Seattle's Parade Ordinance

Before we consider the Coalition's First Amendment challenge to the Parade Ordinance, we address the extent of the authority the Ordinance confers. The Parade Ordinance is fairly terse, but the scope of the Chief of Police's authority is clear. First, the Chief of Police has no authority to deny a parade permit. See SMC 11.25.020 ("Upon written notification ... the Chief of Police shall grant a permit." (emphasis added)). Second, the permitting requirement applies to any "parade upon any street or alley." Id. Elsewhere, Seattle defines a "parade" to include "any organized movement or march of persons and/or things which requires the closure of streets to prevent a conflict with the regular flow of vehicular traffic." SMC 11.14.410. Third, the Parade Ordinance gives the Chief of Police the discretion to modify the parade in various ways, including by changing the "proposed line of movement or march." SMC 11.25.020. Although Washington courts have not provided any authoritative interpretation of the Parade Ordinance, the Seattle Chief of Police has interpreted his authority to alter the "proposed line of movement or march" to include the authority to require marchers to use the sidewalks in lieu of the streets and to require marchers to obey traffic signals.

The Coalition suggests that we may avoid the constitutional question if we conclude that placing marchers on the sidewalks, whether the marchers are required to obey traffic signals or not, amounts to a constructive and impermissible denial of a parade permit because a "parade" under Seattle law occurs only when there is a "closure of the streets." Because Seattle law requires parade permits to be conferred as of right, the Coalition contends, the Chief of Police has no authority to place parades onto sidewalks. Seattle responds that sidewalk marches can also be parades under Seattle law because they may require some closure of the streets, such as when police provide traffic control at intersections or close a lane of traffic so that they can safely escort marchers. Thus, Seattle argues, sidewalk marches are merely rerouted parades, not complete denials of parades. The Coalition conceded that during the Coalition's 2003 march, when the...