Center for Bio-Ethical v. City, Cty. of Honolulu

• Decision Date: 09 November 2004
• Docket Number: No. CV 03-00154DAEBMK.,CV 03-00154DAEBMK.
• Citation: 345 F.Supp.2d 1123
• Parties: CENTER FOR BIO-ETHICAL REFORM, INC., and Gregg Cunningham, Plaintiffs, v. CITY AND COUNTY OF HONOLULU, a municipal entity, Peter Carlisle, in his official capacity as the City and County of Honolulu Prosecuting Attorney, Lee D. Donohue, in his official capacity as Chief of Police, Honolulu Police Department, Defendants.
• Court: U.S. District Court — District of Hawaii

345 F.Supp.2d 1123

CENTER FOR BIO-ETHICAL REFORM, INC., and Gregg Cunningham, Plaintiffs, v.CITY AND COUNTY OF HONOLULU, a municipal entity, Peter Carlisle, in his official capacity as the City and County of Honolulu Prosecuting Attorney, Lee D. Donohue, in his official capacity as Chief of Police, Honolulu Police Department, Defendants.

No. CV 03-00154DAEBMK.

United States District Court, D. Hawai'i.

November 9, 2004.

COPYRIGHT MATERIAL OMITTED

Robert K. Matsumoto, Honolulu, HI, Robert J. Muise, Thomas More Law Center, Ann Arbor, MI, for Center for Bio-Ethical Reform Inc., Gregg Cunningham, plaintiffs.

Gregory J. Swartz, Office of Corporation Counsel-Honolulu, HI, Jon M. Van Dyke, CorporationCounsel, Honolulu, HI, for Honolulu, City and County of a municipal entity, Peter Carlisle, in his official capacity as the City and County of Honolulu Prosecuting Attorney, Lee D. Donohue, in his official capacity as Chief of Police, Honolulu Police Department, Boisse P. Correa, in his official capacity as Chief of Police, Honolulu Police Department, successor to Lee D. Donohue, defendants.

Guy P.D. Archer, Honolulu, for Outdoor Circle, the, amicus.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

DAVID ALAN EZRA, Chief Judge.

The Court heard Plaintiffs' Motion for Summary Judgment and Defendants' Motion For Summary Judgment on November 8, 2004.Robert J. Muise, Esq., and Robert K. Matsumoto, Esq., appeared at the hearing on behalf of Plaintiffs.Gregory J. Swartz, Esq., and Jon Van Dyke, Esq., appeared at the hearing on behalf of Defendants.After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS Defendants' Motion for Summary Judgment and DENIES Plaintiffs' Motion for Summary Judgment.

BACKGROUND

Plaintiff Center for Bio-Ethical Reform ("CBR") is a pro-life/anti-abortion advocacy group that campaigns to raise public support for legislation outlawing abortion.Plaintiff Cunningham is the executive director of CBR.To communicate its anti-abortion message in heavily populated areas, CBR flies airplanes towing banners that are visible to the crowds below.These aerial tow banners are 100 feet long, and CBR uses them to display very large, graphic, color photographs of aborted fetuses.(Pl. Concise Statement of Facts, ¶ 5.)CBR has employed this publicity tactic in 6 states.Through the use of aerial tow-banner operations, Plaintiffs estimate that they are able to communicate their anti-abortion message to hundreds of thousands of people by simply displaying one banner for approximately five hours.(Compl., ¶ 19.)

Revised Ordinances of Honolulu§ 40-6.1 prohibits the use of "any type of aircraft or other self-propelled or buoyant airborne object" to "display in any manner or for any purpose whatsoever any sign or advertising device."A "sign or advertising device" is defined as including "a poster, banner, writing, picture, painting, light, model, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device."HonoluluRev Ord. § 40-6.1(a).The section contains an exception, however, that allows "an identifying mark, trade name, trade insignia, or trademark on the exterior of an aircraft or self-propelled or buoyant airborne object if the displayed item is under the ownership or registration of the aircraft's or the airborne object's owner."HonoluluRev. Ord. § 40-6.1(b)(1).

Plaintiffs assert that, because the ordinance prevents them from flying their aerial tow banners over the beaches of Honolulu, it violates their rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.Specifically, Plaintiffs' complaint asserts three claims against the constitutionality and enforceability of the statute.Plaintiffs' first and second claims are asserted under 42 U.S.C. § 1983 for violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.Plaintiffs assert that because the mainstream media will not carry their provocative photographs, they are forced to seek alternative modes of communication, and these aerial tow banners are the most effective means available to "give any real meaning to the Plaintiffs' exercise of their free speech rights."(Compl., ¶ 13.)Plaintiffs maintain that there are no viable alternative means of communication available that would enable them to express their political message.

Under their third theory of relief, Plaintiffs allege that Defendants cannot enforce the local ordinance because federal regulations have completely preempted local jurisdiction over airspace.Plaintiffs also raised for the first time in their Memorandum in Support of Summary Judgment a fourth theory upon which they claim the ordinance's enforcement against CBR is impermissible.They argue in the alternative that the ordinance is unenforceable against CBR, because Plaintiffs' tow-banner flights would occur outside of the territorial boundaries and jurisdiction of Honolulu.

PROCEDURAL HISTORY

Plaintiffs CBR and Cunningham filed a complaint seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 on April 4, 2003.On May 20, Plaintiffs filed a Motion for Preliminary Injunction.DefendantsPeter Carlisle, Lee D. Donohue, and the City and County of Honolulu responded by filing on June 10 a Motion to Dismiss, alleging lack of standing and ripeness, and an opposition to Plaintiffs' Motion for Preliminary Injunction on July 3.On August 13, 2003, after a hearing, the Court denied Plaintiffs' Motion for Preliminary Injunction as well as Defendants' Motion to Dismiss("August 13 Order").Proceedings were stayed while Plaintiffs appealed the order, which was affirmed by the Ninth Circuit on February 17, 2004.Plaintiffs filed a Motion for Summary Judgment on August 25, 2004.Defendants responded with their own Motion for Summary Judgment on September 1.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be entered when:

[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c).The moving party has the initial burden of demonstrating for the court that there is no genuine issue of material fact.Celotex Corp. v. Catrett,477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986)(citingAdickes v. S.H. Kress & Co.,398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142(1970)).However, the moving party need not produce evidence negating the existence of an element for which the opposing party will bear the burden of proof at trial.Id. at 323, 106 S.Ct. 2548.

Once the movant has met its burden, the opposing party has the affirmative burden of coming forward with specific facts evidencing a need for trial.Fed.R.Civ.P. 56(e).The opposing party cannot stand on its pleadings, nor simply assert that it will be able to discredit the movant's evidence at trial.SeeT.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,809 F.2d 626, 630(9th Cir.1987);Fed.R.Civ.P. 56(e).There is no genuine issue of fact "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."Matsushita Electric Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986)(citation omitted).

A material fact is one that may affect the decision, so that the finding of that fact is relevant and necessary to the proceedings.Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).A genuine issue is shown to exist if sufficient evidence is presented such that a reasonable fact finder could decide the question in favor of the nonmoving party.Id.The evidence submitted by the nonmovant, in opposition to a motion for summary judgment, "is to be believed, and all justifiable inferences are to be drawn in [its] favor."Id. at 255, 106 S.Ct. 2505.In ruling on a motion for summary judgment, the court must bear in mind the actual quantum and quality of proof necessary to support liability under the applicable law.Id. at 254, 106 S.Ct. 2505.The court must assess the adequacy of the nonmovant's response and must determine whether the showing the nonmovant asserts it will make at trial would be sufficient to carry its burden of proof.SeeCelotex,477 U.S. at 322, 106 S.Ct. 2548.

At the summary judgment stage, this court may not make credibility determinations or weigh conflicting evidence.Musick v. Burke,913 F.2d 1390, 1394(9th Cir.1990).The standard for determining a motion for summary judgment is the same standard used to determine a motion for directed verdict: whether the evidence presents a sufficient disagreement to require submission to a jury, or it is so one-sided that one party must prevail as a matter of law.Id.(citation omitted).

DISCUSSION

I.The FAA's system of issuing "certificates of waiver" for aerial tow-banner operations does not constitute federal preemption of local regulations such as Honolulu's ban on aerial advertisements

Plaintiffs contend that Honolulu's ordinance is invalid because it has been preempted by federal law.Specifically, Plaintiffs posit that the local ordinance has been preempted by the Federal Aviation Administration's nationwide policy of requiring would-be tow banner operators to obtain "certificates of waiver" prior to starting operations.The purpose of the FAA is to regulate "the use of the navigable airspace" so as "to ensure the safety of the aircraft and the efficient use of the airspace."(Def. Memo. In Support of Sum. Judg., Ex. Jat 2.)To further this mission, it is authorized to issue "air traffic regulations" for:

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground;

(C) using...