Beach v. City of Redondo Beach

• Decision Date: 16 September 2011
• Docket Number: Nos. 06–55750,06–56869.,s. 06–55750
• Citation: 657 F.3d 936,11 Cal. Daily Op. Serv. 11888,2011 Daily Journal D.A.R. 14139
• 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

657 F.3d 936

11 Cal. Daily Op. Serv. 11,888

2011 Daily Journal D.A.R. 14,139

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 March 21, 2011.Filed Sept. 16, 2011.

Michael W. Webb (argued), Office of the City Attorney, Redondo Beach, CA; Eugene P. Ramirez and Julie M. Fleming, Manning & Kass, Ellrod, Ramirez, Trester LLP, Los Angeles, CA, for the defendant-appellant.Thomas A. Saenz (argued), Cynthia A. Valenzuela, and Kristina Campbell, Mexican American Legal Defense and Educational Fund, Los Angeles, CA; Robert Rubin and Philip Hwang, Lawyers' Committee for Civil Rights, San Francisco, CA; Angela L. Padilla and Alexei Klestoff, Morrison & Foerster LLP, San Francisco, CA, for the plaintiffs-appellees.Jeffrey V. Dunn and Marc S. Ehrlich, Best Best & Krieger LLP, Irvine, CA, for the amicus curiae League of California Cities.Paul J. Orfanedes and James F. Peterson, Judicial Watch, Inc., Washington, D.C., for the amicus curiae Judicial Watch, Inc.Monica M. Ramirez and Lucas Guttentag, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA, for the amicus curiae Professor Abel Valenzuela, Jr.Rebecca Smith, National Employment Law Project, Seattle, Washington; Haeyong Yoon, National Employment Law Project, New York, NY, for the amici curiae National Domestic Worker Alliance, National Employment Law Project, Restaurant Opportunities Center United, and Right to the City.Appeal from the United States District Court for the Central District of California, Consuelo B. Marshall, Senior District Judge, Presiding. D.C. No. CV–04–09396–CBM.Before: ALEX KOZINSKI, Chief Judge, SIDNEY R. THOMAS, SUSAN P. GRABER, RONALD M. GOULD, MARSHA S. BERZON, JAY S. BYBEE, CONSUELO M. CALLAHAN, CARLOS T. BEA, MILAN D. SMITH, JR., SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.Opinion by Judge MILAN D. SMITH, JR.; Concurrence by Judge RONALD M. GOULD; Special Concurrence by Judge MILAN D. SMITH, JR.; Dissent by Chief Judge ALEX KOZINSKI.

OPINION

M. SMITH, Circuit Judge:

A pair of day-laborer organizations challenge a City of Redondo Beach (Redondo Beach or the City) anti-solicitation ordinance that bars individuals from “stand[ing] on a street or highway and solicit[ing], or attempt[ing] to solicit, employment, business, or contributions from an occupant of any motor vehicle.” Redondo Beach Municipal Code § 3–7.1601(a) (the Ordinance). We agree with the day laborers that the Ordinance is a facially unconstitutional restriction on speech.

Our analysis is guided by certain well-established principles of First Amendment law. In public places such as streets and sidewalks, “the State [may] enforce a content-based exclusion” on speech if the “regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). For content-neutral regulations, the State may limit “the time, place, and manner of expression” if the regulations are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Id.

We conclude that the Ordinance fails to satisfy the narrow tailoring element of the Supreme Court's “time, place, and manner” test. The Ordinance is not narrowly tailored because it regulates significantly more speech than is necessary to achieve the City's purpose of improving traffic safety and traffic flow at two major Redondo Beach intersections, and the City could have achieved these goals through less restrictive measures, such as the enforcement of existing traffic laws and regulations. Because the Ordinance does not constitute a reasonable regulation of the time, place, or manner of speaking, it is facially unconstitutional.

I. FACTS AND PRIOR PROCEEDINGS

A. Factual Background

In September 1986, we upheld a Phoenix ordinance that provided: “ ‘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.’ ” ACORN v. City of Phoenix, 798 F.2d 1260, 1262 (9th Cir.1986) (quoting Phoenix City Ordinance § 36–101.01 (1984)). The Phoenix ordinance was designed to prevent members of the political action group ACORN “from accosting the drivers and passengers of automobiles temporarily stopped at red traffic lights at city street intersections to solicit contributions to its cause.” Id. at 1261. We upheld the ordinance as “a reasonable time, place, and manner regulation which preserves the city streets for safe and peaceful use by motorists when the streets are open to vehicle traffic.” Id. at 1273.

Six months later, the Redondo Beach City Attorney recommended that the Redondo Beach City Council adopt a nearly identical ordinance (the sole material difference being that the proposed ordinance defined “street or highway” as including sidewalks, alleys, and other such locations, consistent with California law, see, e.g., Cal. Veh.Code §§ 110, 555). In a memorandum that accompanied the proposed ordinance, the City Attorney noted: “the City has had extreme difficulties with persons soliciting employment from the sidewalks along the Artesia corridor over the last several years. Recent developments have brought to the surface the problems with person[s] using medians and other portions of the street to sell certain products. [¶] There can be little question that traffic and safety hazards occur by this practice.”

In a declaration filed with the district court, a City police officer added that the Redondo Beach Police Department had “received numerous complaints from business owners and residents of the surrounding areas” near “the intersection of Artesia Boulevard and Felton Lane, and ... the intersection of Manhattan Beach Boulevard and Inglewood Avenue.” The police received complaints that the “day laborers who congregate at the subject intersections ... interrupt the flow of traffic while they contact employers from the City sidewalks and streets[,] ... commit acts of vandalism, litter, [and] urinate near the businesses” in the area.

The City adopted the proposed ordinance in May 1987. Following additional complaints about “the recurring gathering of day laborers along Artesia Boulevard,” who “congregated on the sidewalks during the rush hours to obtain temporary employment,” in 1989 the City added an additional subsection to the Ordinance prohibiting drivers from stopping in traffic to hire laborers. The Ordinance now reads in full:

(a) 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.

(b) 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.

Redondo Beach Municipal Code § 3–7.1601.

In October 2004, the City initiated the “Day Labor Enforcement Project.” Over the course of two successive mornings, undercover officers posing as potential employers arrested thirty-five day laborers “for soliciting from stopped vehicles” under the Ordinance. Two weeks later, the police arrested another twenty-one day laborers under the Ordinance. Two weeks after that, four day laborers were arrested under subsection (a) of the Ordinance, and a contractor was arrested under subsection (b) of the Ordinance. Arrested persons either posted $100 bail and were released, or were sent to court, entered guilty pleas, sentenced to three years probation and a 180–day suspended sentence, assessed a $314 booking fee, and enjoined from coming within 150 yards of the place they were arrested.

B. Procedural Background

Shortly after the City's 2004 enforcement efforts concluded, the Comite de Jornaleros de Redondo Beach (Comite) and National Day Laborer Organizing Network (NDLON) filed this lawsuit under 42 U.S.C. § 1983 and 28 U.S.C. § 2201.¹ Comite and NDLON (collectively, the Plaintiffs) alleged that the Ordinance is a facially unconstitutional restriction on day laborers' and other persons' First Amendment rights.

The district court agreed with the Plaintiffs, and issued a preliminary injunction barring the City from enforcing the Ordinance, which we affirmed on appeal. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 127 Fed.Appx. 994 (9th Cir.2005) (unpublished memorandum disposition). After the parties filed cross-motions for summary judgment, the district court issued final judgment for the Plaintiffs. Comite I, 475 F.Supp.2d at 970. The court's order permanently enjoined the City from enforcing the Ordinance, and required the City to rescind any “fines, penalties, or records of infractions” issued under the Ordinance (though the court later stayed enforcement of the latter part of its order.). Id. The court then awarded attorneys' fees to the Plaintiffs.

Believing itself bound by ACORN, a merits panel of our court reversed the district court's judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach ( Comite II ), 607 F.3d 1178 (9th Cir.2010), but we ordered that the case be reheard en banc, 623 F.3d 1054 (9th Cir.2010) (order). We now affirm the district court and overrule ACORN, but only to the extent it is inconsistent with our en banc decision in this case.

II. ...