Beach v. City Of Redondo Beach

• Decision Date: 09 June 2010
• Docket Number: No. 06-55750,06-56869.,06-55750
• Citation: 607 F.3d 1178
• Parties: COMITE DE JORNALEROS DE REDONDO BEACH; National Day Laborer Organizing Network, Plaintiffs-Appellees,v.CITY OF REDONDO BEACH, Defendant-Appellant.Comite De Jornaleros De Redondo Beach; National Day Laborer Organizing Network, Plaintiffs-Appellees,v.City of Redondo Beach, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

607 F.3d 1178

COMITE DE JORNALEROS DE REDONDO BEACH; National Day Laborer Organizing Network, Plaintiffs-Appellees,

v.CITY OF REDONDO BEACH, Defendant-Appellant.

Comite De Jornaleros De Redondo Beach; National Day Laborer Organizing Network, Plaintiffs-Appellees,

v.City of Redondo Beach, Defendant-Appellant.

Nos. 06-55750, 06-56869.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 9, 2008.

Filed June 9, 2010.

COPYRIGHT MATERIAL OMITTED

Philip Hwang and Robert Rubin, Lawyers' Committee for Civil Rights, San Francisco, CA, and Cynthia A. Valenzuela, Mexican American Legal Defense and Educational Fund, Los Angeles, CA, counsel for the appellee.

Julie Fleming, Manning & Marder, Kass, Ellrod, Ramirez LLP, Los Angeles, CA, and Michael Webb, Office of the City Attorney, Redondo Beach, CA, counsel for the appellant.

Appeal from the United States District Court for the Central District of California, Consuelo B. Marshall, District Judge, Presiding. D.C. No. CV-04-09396-CBM.

Before: KIM McLANE WARDLAW and SANDRA S. IKUTA, Circuit Judges, and RALPH R. BEISTLINE,^* District Judge.

Opinion by Judge IKUTA; Dissent by Judge WARDLAW.

IKUTA, Circuit Judge:

This appeal raises a First Amendment challenge to Redondo Beach Municipal Code § 3-7.1601, which prohibits the act of standing on a street or highway and soliciting employment, business, or contributions from the occupants of an automobile. We have previously upheld a virtually identical ordinance against a constitutional challenge. See ACORN v. City of Phoenix, 798 F.2d 1260, 1273 (9th Cir.1986). We reach the same result here and hold that the Redondo Beach ordinance is a valid time, place, or manner restriction. Accordingly, we reverse the contrary decision of the district court.

I

The facts giving rise to this controversy can be traced back to ACORN, where the Association of Community Organizations for Reform Now (ACORN), a non-profit political action organization, raised a First and Fourteenth Amendment challenge to a Phoenix ordinance that read: “No person shall stand on a street or highway and solicit, or attempt to solicit, employment, business or contributions from the occupants of any vehicle.” Id. at 1262. According to ACORN, the challenged ordinance deterred its members from “tagging.” As we explained, “[t]agging ... involves an individual stepping into the street and approaching an automobile when it is stopped at a red traffic light. The individual asks the occupants of the vehicle for a contribution to ACORN and distributes a slip of paper, or ‘tag,’ providing information about ACORN and its activities.” Id.

We determined that the restrictions imposed by the Phoenix ordinance were content neutral, narrowly tailored to serve a significant government interest, and left open ample alternative channels of communication. Id. at 1267-71. Accordingly, we concluded that the ordinance was a reasonable time, place, or manner restriction which did not violate ACORN's First Amendment rights. Id. at 1273. We also rejected ACORN's argument that the ordinance was facially overbroad because it would deter not only ACORN's tagging at intersections, but also persons soliciting “on the sidewalks of Phoenix, during parades or demonstrations, or on streets closed to vehicle traffic.” Id. at 1272. Because the ordinance was narrow, and prohibited “only solicitation in the streets ‘from the occupants of any vehicle,’ ” id., we concluded that ACORN's overbreadth argument ran “completely contrary to the language of the ordinance,” id. at 1273.

Some eight months after we decided ACORN, Redondo Beach's city attorney proposed that the city adopt an ordinance “identical to one recently approved by the 9th circuit court of appeals.” A memorandum from the city attorney to the mayor explained that “the City has had extreme difficulties with persons soliciting employment from the sidewalks along the Artesia corridor over the last several years.... There can be little question that traffic and safety hazards occur by this practice.” A later memorandum by the same city attorney stated that the “ordinance was designed to alleviate sidewalk congestion and traffic hazards which occurred when large numbers of persons congregated on the sidewalks during the rush hours to obtain temporary employment.”

Using ACORN as a guide in drafting its own ordinance, Redondo Beach enacted Redondo Beach Municipal Code § 3-7.1601, which provides:

It shall be unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle. For purposes of this section, “street or highway” shall mean all of that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, medians, alleys, sidewalks, curbs, and public ways.¹

The first sentence of the Redondo Beach ordinance is identical to the operative language of the Phoenix ordinance from ACORN. See 798 F.2d at 1262. The second sentence adds the California Vehicle Code's definitions of “street,” and “highway.” See Cal. Veh.Code §§ 360, 590 (2009). In 1989, Redondo Beach added subsection (b) imposing a correlative restriction on drivers. It states: “It shall be unlawful for any person to stop, park or stand a motor vehicle on a street or highway from which any occupant attempts to hire or hires for employment another person or persons.” As the city attorney explained in an earlier memorandum, “[b]y adopting this amendment, both the prospective employee and employer would be subject to a misdemeanor offense for soliciting the other from a street or highway.”

After passage of the ordinance, Redondo Beach continued to experience traffic problems related to persons soliciting employment from automobiles at two of the city's intersections. In October 2004, Redondo Beach undertook “an enhanced effort” to enforce the Redondo Beach ordinance at these two intersections. Throughout October and November 2004, Redondo Beach police officers, sometimes posing as potential employers, arrested multiple persons for violating subsection (a) of the ordinance, and cited one person for violating subsection (b). According to the officer who was in charge of the enforcement project, “[d]ay laborers were only contacted and arrested when they were on the sidewalk and approached a stopped vehicle. The prospective employer who was charged with violation of Municipal Code Section 3-7.1601(b) was contacted because he stopped in a traffic lane to conduct a hiring discussion with day laborers.”

On November 16, 2004, Comite de Jornaleros de Redondo Beach (Comite) and the National Day Laborer Organizing Network (NDLON) filed this suit in district court. Comite identifies itself as “an unincorporated association comprised of day laborers who ... regularly seek work in the City of Redondo Beach,” and NDLON identifies itself as “a nationwide coalition of day laborers and the agencies that work with day laborers.” Their complaint alleged that the Redondo Beach ordinance deprived them and others of free speech rights guaranteed by the First and Fourteenth Amendments, and sought injunctive, monetary, and declarative relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201. The district court issued a temporary restraining order, and later a preliminary injunction barring enforcement of the Redondo Beach ordinance. We affirmed the preliminary injunction in an unpublished memorandum disposition. 127 Fed.Appx. 994 (9th Cir.2005).

Both plaintiffs and Redondo Beach moved for summary judgment, which the district court addressed in a published opinion. 475 F.Supp.2d 952 (C.D.Cal.2006). The district court held that the Redondo Beach ordinance was content neutral, but was nevertheless invalid because (1) it was not “narrowly tailored to promote [Redondo Beach's] interests in traffic flow and safety,” and (2) it “failed to establish the existence of ample alternative channels of communication.” Id. at 966-68. Accordingly, the district court granted the plaintiffs' motion for summary judgment, permanently enjoined Redondo Beach from enforcing its ordinance, and ordered that “all fines, penalties, or records of infractions” of the Redondo Beach ordinance “be rescinded or removed and restitution provided.” Id. at 970. Redondo Beach timely appealed. The district court subsequently granted Redondo Beach's motion to stay the order granting partial relief pending resolution of the appeal. The district court also awarded attorneys' fees to plaintiffs pursuant to 42 U.S.C. § 1988, which Redondo Beach has also timely appealed.

We review de novo the district court's grant of summary judgment in favor of NDLON. See, e.g., ACLU of Nevada v. City of Las Vegas (ACLU II), 466 F.3d 784, 790 (9th Cir.2006). When considering a motion for summary judgment, we view the evidence in the light most favorable to the nonmoving party, and draw “all justifiable inferences” in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

II

Redondo Beach makes the threshold argument that Comite and NDLON lack standing to challenge the ordinance. To have standing under Article III, a plaintiff must have suffered an “injury in fact,” defined as “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted). There also must be a causal connection between the injury and the defendant's conduct, and the injury must be redressable by a favorable decision. Id. at 561, 112 S.Ct. 2130. Here Redondo Beach argues that Comite and NDLON fail to satisfy the Article III injury-in-fact requirement.

An organization may establish a sufficient injury in fact if it substantiates by affidavit or other specific evidence that a challenged statute or policy frustrates the...