798 F.2d 1260 (9th Cir. 1986), 85-1810, ACORN v. City of Phoenix

Docket Nº:C.A. No. 85-1810.
Citation:798 F.2d 1260
Party Name:ACORN and Liz Wolff, Plaintiffs-Appellants, v. CITY OF PHOENIX and the Chief of Police of the City of Phoenix, Defendants- Appellees.
Case Date:September 02, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1260

798 F.2d 1260 (9th Cir. 1986)

ACORN and Liz Wolff, Plaintiffs-Appellants,

v.

CITY OF PHOENIX and the Chief of Police of the City of

Phoenix, Defendants- Appellees.

C.A. No. 85-1810.

United States Court of Appeals, Ninth Circuit

September 2, 1986

Argued and Submitted Feb. 12, 1986.

Page 1261

Steve Bachmann, Brooklyn, N.Y., for plaintiffs-appellants.

Michael House, Richard J. Graci, Phoenix, Ariz., for defendants-appellees.

Appeal From the United States District Court for the District of Arizona (Phoenix).

Before JAMES R. BROWNING, Chief Judge, and TANG and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

ACORN, a political action organization, and its local leader, Liz Wolff, appeal the district court's holding that the City of Phoenix acted constitutionally in preventing organization members from accosting the drivers and passengers of automobiles temporarily stopped at red traffic lights at city street intersections to solicit contributions to its cause. ACORN contends a Phoenix ordinance prohibiting solicitation

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on city streets from the occupants of vehicles infringes its members' rights of free speech under the First Amendment.

The district court held that Phoenix city streets were not public fora uniquely suited for the exercise of free speech, and that the Phoenix ordinance was a reasonable regulation to promote public peace, health, and safety. We affirm on other grounds.

I

BACKGROUND

The Association of Community Organizations for Reform Now (ACORN) is a non-profit political action organization working to promote the concerns of low and moderate income citizens. ACORN members in Phoenix, Arizona, headed by their local leader, Liz Wolff, have previously raised funds for their cause through the practice of "tagging."

"Tagging" usually 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.

On at least two occasions, Phoenix officials or police officers warned ACORN representatives that this conduct was unlawful, and that ACORN members engaging in solicitation from the occupants of vehicles would be subject to citation. ACORN members apparently were informed by the city that such citations would be issued for violations of Arizona Revised Statute Sec. 28-796, which prohibits pedestrians from walking "along and upon" a roadway adjacent to a sidewalk and from standing in a roadway "for the purpose of soliciting a ride from the driver of any vehicle."

On May 12, 1983, ACORN and Liz Wolff instituted an action in federal district court against the City of Phoenix, the Phoenix Chief of Police, and the Attorney General of Arizona 1 under 42 U.S.C. Sec. 1983. ACORN contended that the practice of soliciting contributions from occupants of vehicles was protected under the First and Fourteenth Amendments of the Constitution. ACORN sought a declaratory judgment that Arizona Revised Statute Sec. 28-796 was either inapplicable to "tagging" or was unconstitutional; an injunction against any law enforcement action interfering with its First Amendment activities; an award of $5,000 in damages to each plaintiff; attorney's fees under 42 U.S.C. Sec. 1988; and a preliminary injunction.

On June 13, 1983, the district court denied ACORN's motion for preliminary injunction. On March 12, 1984, the district court denied ACORN's motion for summary judgment and Phoenix' motion to dismiss the complaint. In denying the motions, the district judge expressed concern that Arizona Revised Statute Sec. 28-796, as well as other traffic statutes and ordinances relied upon by Phoenix, might not apply to solicitation from occupants of motor vehicles. The judge suggested that "the City could enact an ordinance ... that would tell people you can't carry on solicitation or commercial activities or otherwise, in an intersection or in an area adjacent to an intersection."

Apparently in response to the judge's comments, on May 9, 1984, Phoenix adopted the following ordinance: "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." Phoenix City Ordinance Sec. 36-101.01.

After passage of this ordinance, both parties stipulated in a pretrial order that the resolution of ACORN's action depended upon a determination of the constitutionality of the ordinance.

Following a one-day bench trial on February 5, 1985, the district court entered judgment in favor of Phoenix on February

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19, 1985, ruling that the new ordinance was constitutional as applied to ACORN. ACORN v. City of Phoenix, 603 F.Supp. 869 (D.Ariz.1985). The judgment accompanying the published opinion ordered the action dismissed. ACORN timely appealed.

II

STANDARD OF REVIEW AND JURISDICTION

  1. Standard of Review

    The question as to whether ACORN's First Amendment free speech rights have been infringed is a mixed question of law and fact "since it requires us to apply principles of First Amendment jurisprudence to the specific facts of this case." See Fraser v. Bethel School Dist. No. 403, 755 F.2d 1356, 1359 n. 2 (9th Cir.1985), rev'd on other grounds, --- U.S. ---, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). The appropriate standard of review is de novo because the application of constitutional law to the facts of this case "requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles." See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, --- U.S. ---, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); see also Jews for Jesus, Inc. v. Board of Airport Commissioners, 785 F.2d 791, 792 (9th Cir.1986).

    In a First Amendment case, the party imposing a prior restraint upon protected expression carries a heavy burden to justify that action. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577-78, 29 L.Ed.2d 1 (1971).

    We may affirm the district court on any ground fairly supported by the record. Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1288 (9th Cir.1985).

  2. Presentation of Challenge to Phoenix Ordinance

    Although ACORN's pleadings challenge only the validity of Arizona Revised Statute Sec. 28-796, rather than the subsequently enacted Phoenix ordinance banning solicitation from occupants of vehicles, we conclude that ACORN properly presented the question of the validity of the Phoenix ordinance to the district court.

    Both ACORN and Phoenix stipulated in the pretrial order that the resolution of ACORN's action depended upon a determination of the validity of the new Phoenix ordinance. A pretrial order has the effect of amending the pleadings. 999 v. C.I.T. Corp., 776 F.2d 866, 870 n. 2 (9th Cir.1985); Federal Deposit Insurance Corp. v. Glickman, 450 F.2d 416, 419 (9th Cir.1971).

    Accordingly, the question of the validity of this Phoenix ordinance is properly before us on this appeal.

  3. Standing to Challenge Phoenix Ordinance

    ACORN has demonstrated a sufficient stake in the outcome of this litigation to establish jurisdictional standing to raise its free speech concerns under the First Amendment. There are two components to the standing doctrine.

    1. Injury in Fact

      First, the plaintiff must allege an "injury in fact" sufficient to show a "personal stake" in the outcome of the legal action. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Radio and Television News Association v. United States District Court, 781 F.2d 1443, 1445 (9th Cir.1986).

      ACORN in its complaint had alleged that Phoenix law enforcement officials would prevent them from pursuing "tagging" solicitation directed at occupants of vehicles. More importantly, in the pretrial order amending the pleadings, the parties stipulated that the Phoenix Chief of Police would continue to enforce city ordinances, which would include the particular ordinance at issue in this case. The pretrial order also states that the plaintiffs alleged they were "afraid to pursue tagging activities in Phoenix, given defendants' anti-tagging ordinance." ACORN has engaged in solicitation from occupants of vehicles in the past, and there is no reason to doubt the earnest desire of its members to resume such activities.

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      ACORN has thus alleged "both threatened and actual injury" as a result of the ordinance. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 954-55, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984). We do not insist that an individual break the law in order to the test the constitutionality of an ordinance, as this would "risk punishing him for conduct which he may have honestly thought was constitutionally protected." International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 821 (5th Cir.1979). As ACORN alleges the challenged ordinance deters them from soliciting contributions from occupants of vehicles, the alleged "injury to their first amendment rights recurs each day and is, in a sense, irreparable." Id.

    2. Zone of Interests

      Second, to establish standing, a plaintiff must show that "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). Although we conclude otherwise on the merits, it is plain that ACORN asserts an interest that is at least "arguably" protected by the First Amendment. See Radio and Television News Association, 781 F.2d at 1446.

      ACORN has standing on behalf of its members, and Liz Wolff...

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