Abolish Abortion Or. v. City of Grants Pass
| Decision Date | 24 March 2022 |
| Docket Number | Case No. 1:20-cv-00484-AA |
| Parties | ABOLISH ABORTION OREGON, et al., Plaintiff, v. CITY OF GRANTS PASS, et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
Ray D. Hacke, Pacific Justice Institute, Salem, OR, for Plaintiff.
Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr., Springfield, OR, for Defendants City of Grants Pass.
Abigail Fallon, Carla Scott, Oregon Department of Justice, Special Litigation Unit - Trial Division, Portland, OR, for Amicus Oregon Atty General Ellen Rosenblum.
Plaintiffs Abolish Abortion Oregon ("AAOR"), an organization of Christian anti-abortion activists, and seven of its members (together, "plaintiffs"), bring this action against the City of Grants Pass and 50 Doe defendants, claiming a violation of their right to free speech under the First Amendment. This action arises from plaintiffs’ use of electronic sound amplification to protest abortion and the City's enforcement of a municipal ordinance and state statute proscribing "unnecessary" or "unreasonable noise." Before the Court is plaintiffs’ Motion for Partial Summary Judgment (ECF No. 65). For the reasons explained, Plaintiffs’ motion is DENIED.
AAOR is an unincorporated association based in Roseburg, Oregon, "whose members consist of Christians from throughout Oregon who are dedicated to calling the public's attention to the horrors of abortion and calling on legislators to abolish and criminalize the inhumane practice." Third Am. Compl. ("TAC") ¶ 2. Individual plaintiffs are members of AAOR who have participated in demonstrations in Grants Pass which drew the attention of Grants Pass Department of Public Safety ("DPS") in response to public complaints about plaintiffs. See Goodknight Decl., ECF No. 66; Clark Decl., ECF No. 67; Kellim Decl., ECF No. 68; L. Mayberry Decl., ECF No. 71; R. Mayberry Decl., ECF No. 72; M. Mayberry Am. Decl. ECF No. 73.
Defendants are the City of Grants Pass ("the City"), through DPS, and 50 unnamed Does, who are "legally responsible for the events and happenings" and who "proximately caused" plaintiffs’ alleged injuries. TAC ¶¶ 12, 21.
In Grants Pass, plaintiffs attend events like First Friday (a monthly arts celebration), the annual Boatnik festival, and the Saturday Growers’ Market, because of the large crowds those events draw. TAC ¶ 19. At the events, plaintiffs carry anti-abortion signs, pass out gospel tracts, and take turns "open-air preaching," and calling for the criminalization of abortion. TAC ¶¶ 18, 19. In the course of these activities, plaintiffs sometimes use electronic sound-amplification devices ("amplifiers"), intending to reach about "half a block." TAC ¶¶ 19, 21.
On several different occasions, DPS responded to reports from the public that plaintiffs were "blocking a handicap parking space,"; "using bull horns," and "getting in peoples’ faces and blocking entrances,"; "using a microphone," while "attacking people verbally,"; "making so much noise that customers [could not] hear [a fruit-stand owner] in [her] booth,"; and using a "megaphone," "microphone," or "loudspeaker," and "being very vulgar, yelling". Franz Decl., Exs. 101A, 102, 102A, 102D, 103A, 112. ECF No. 38.
When responding to those complaints, DPS sometimes asked plaintiffs to turn off the amplifier or to turn the amplifier volume down. Franz Decl. Exs. 108, 108F, 111, 112, 113. During some of those encounters, DPS spoke with plaintiffs about the "city noise ordinance," advising that, without a permit, the ordinance prohibited the amplification plaintiffs used. See Franz Decl. Exs. 103, 111, 113.
DPS referred plaintiffs to Grants Pass Municipal Code ("GPMC") § 5.12.110, titled "Unnecessary Noise" (hereinafter, the "Sound Ordinance"). Subsection A of the Sound Ordinance provides: "No person may make, assist in making, continue or cause to be making any loud, disturbing or unnecessary noise which either annoys, disturbs, injures or endangers the comfort, repose, health, safety or peace of others." GPMC § 5.12.110(A).
Further, Subsection B provides a nonexclusive list of conduct that constitutes "loud, disturbing or unnecessary noises" which include "[t]he use or operation of ... any sound-amplifying device so loudly as to disturb persons in the vicinity thereof or in such a manner as renders the use thereof a nuisance." GPMC § 5.12.110(B)(11). Subsection B(11) also outlines a permitting process for loud "broadcast[s] or amplification" that might otherwise violate the ordinance. Id.
In this case, although DPS warned plaintiffs that they could be cited for violating the Sound Ordinance, DPS has never enforced the Sound Ordinance against any plaintiff. Bartholomew Decl. at 2, ECF No. 22; Hamilton Decl. at 2, ECF No. 28. Moreover, the City represents that the Sound Ordinance is not being enforced against anyone because it is under amendment. Hamilton Decl. at 2.
After plaintiffs initiated this action, the City decided to review and revise the Sound Ordinance and advised DPS not to enforce it while amendment is underway. Id. In drafting an amended ordinance, counsel represented to the Court that the City requested plaintiffs’ direct input to establish a new ordinance "acceptable" to plaintiffs. Tel. Hr'g Tr. at 14, ECF No. 64. Further, plaintiffs, through counsel, provided the City with feedback concerning their objections to proposed drafts. Id. at 15. Plaintiffs specifically proposed language to "define the term ‘doctor's office’ and ‘hospitals’ to exclude any place where abortion occurs." Id. at 23.
While the Sound Ordinance is under review, DPS is enforcing ORS 166.025 and has enforced ORS 166.025(1)(b) and (1)(d)1 against plaintiffs. Hamilton Decl. at 2. Under ORS 166.025, a person "commits the crime of disorderly conduct in the second degree if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person ... makes unreasonable noise." ORS 166.025(1), (1)(b). The City enforced ORS 166.025 in an incident involving plaintiff Shawn Kellim near the Planned Parenthood in Grants Pass.
The Grants Pass Planned Parenthood clinic is located in an office complex that includes three other buildings. Franz Decl. Ex. 110. During the relevant period, Kellim and other plaintiffs demonstrated outside of Planned Parenthood "at least once per week," and sometimes used amplifiers "at a volume which let [plaintiffs] be heard within a range of roughly half of a city block." Kellim Decl.; see also TAC ¶ 21g-i; Swanson Decl. at 2.
Several times, DPS responded to noise complaints from people working throughout the office complex. On July 25, 2020, Kellim and other plaintiffs were demonstrating outside the office complex when DPS responded to complaints about a disturbance involving Kellim. Franz Decl. Ex 115A at 2; TAC ¶ 21g. DPS advised Kellim that he was demonstrating on private property, and that the property owner had asked DPS to notify Kellim that he was trespassing. Artoff Decl. at 2, ECF No. 21; Franz Decl. Ex 115A at 2.
On August 8, 2019, DPS responded to calls concerning Kellim using an amplified device heard from beyond a block away. DPS officers asked Kellim to shut down the amplifier and Kellim complied. Franz. Decl. Ex 104 A at 2; TAC ¶ 21h.
On August 15, 2019, DPS responded to a call from an employee working in a building near Planned Parenthood who had complained about loud noise from a bullhorn. Artoff Decl. at 2; Franz. Decl. Ex 104A. On arriving, DPS found Kellim using an amplifier. When Kellim would not turn down the amplifier, DPS cited him for disorderly conduct under ORS 166.025. Franz. Decl. Exs. 107A; TAC ¶ 21i.
On September 10, 2019, DPS was repeatedly dispatched to investigate multiple calls from people working in different buildings near Planned Parenthood. Complaints involved "being harassed" by plaintiffs, including Kellim, who at one point was "using a megaphone from a parked car" and at other times from driveways around the office complex. Franz Decl. Ex. 108A-C. Several employees in the surrounding buildings reported inability to complete their work due to the noise. Id. One office worker reported to police that the noise was like a "barking dog." Franz Decl. Ex. 108E. Another person reported that she could hear noise from the amplifier over her headphones, even with her office door and windows closed. Franz. Decl. Ex. 108H. On the scene, DPS pointed out to Kellim other protesters at the office complex whose demonstrations were not being complained of or investigated because those protestors were not using loud amplification. Franz. Decl. Ex 108. After officers spoke with Kellim multiple times about the noise complaints, Kellim did not alter or change the volume of his amplifier. Franz Decl. Ex. 108D at 2. DPS cited Kellim for disorderly conduct under ORS 166.025(1)(b) based on "unreasonable noise." Franz Decl. Ex. 108D at 1-2.
Plaintiffs filed this action on March 24, 2020, asserting a single claim under 42 U.S.C. § 1983 for First Amendment Retaliation and challenging the constitutionality of the Sound Ordinance. Compl. ¶¶ 27–31, ECF No. 1.
Plaintiffs later filed a Motion for Preliminary Injunction seeking to prevent defendants from enforcing both the Sound Ordinance and ORS 166.025. Pls.’ Mot. Prelim. Inj., ECF No. 17; Pls.’ Reply, ECF No. 41. The Court determined that, because defendants were not enforcing the Sound Ordinance, it could not find that plaintiffs were likely to suffer irreparable harm from the enforcement of the Sound Ordinance in the absence of a preliminary injunction. ECF No. 50. The Court declined to address plaintiffs’ constitutional challenge to ORS 166.025 because plaintiffs had not raised that challenge in their First Amended Complaint. Id. at 12-13. Plaintiffs subsequently amended their complaint to include a challenge to the...
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