Central Florida Nuclear Freeze Campaign v. Walsh, 84-3833

• Decision Date: 04 November 1985
• Docket Number: No. 84-3833,84-3833
• Parties: CENTRAL FLORIDA NUCLEAR FREEZE CAMPAIGN and Bruce Gagnon, Plaintiffs-Appellants, v. Frederick J. WALSH, Chief of Police of Orlando, Florida, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1515

774 F.2d 1515

54 USLW 2258

CENTRAL FLORIDA NUCLEAR FREEZE CAMPAIGN and Bruce Gagnon, Plaintiffs-Appellants, v. Frederick J. WALSH, Chief of Police of Orlando, Florida,

Defendant-Appellee.

No. 84-3833.

United States Court of Appeals, Eleventh Circuit.

Nov. 4, 1985.

Bruce Rogow, Fort Lauderdale, Fla., for plaintiffs-appellants.

Jody M. Litchford, Police Legal Advisor, Orlando Police Dept. Orlando, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HENDERSON and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal of an order granting the defendants' motion for summary judgment, upholding an Orlando, Florida, ordinance which requires as a condition for the granting of a permit for persons wishing to use the public streets and parks for demonstrations, the prepayment of fees for additional police protection. For the reasons set forth herein, the Orlando city ordinance on its face, as well as the manner in which it was applied violates the First Amendment guarantees of freedom of speech and assembly of the United States Constitution made applicable to the states by the due process clause of the Fourteenth Amendment.

I. BACKGROUND

The appellants, the Central Florida Nuclear Freeze Campaign, a non-profit anti-nuclear organization, and Bruce Gagnon, its coordinator, desired to conduct a parade and rally in Orlando, Florida on a Saturday in October, 1983 to communicate their views about the nuclear arms race. As required by the Orlando City Ordinances, 18A.10-11, ¹ the appellants filed an application for a permit with the Chief of Police of Orlando to conduct their outdoor march and rally. The application estimated that 1,000 people would participate in a nine-hour rally and approximately 700 to 800 marchers in a two and one-half hour parade. It is clear that the term "assembly" in the code applies to both parades and rallies. The proposed parade route covered approximately four miles through major thoroughfares and ending at "Tinker Field," an Orlando recreation area, where the rally would be conducted.

Before a permit can be issued, Section 18A.12 ² of the Orlando City Ordinance requires the Chief of Police to "determine whether and to what extent additional police protection reasonably will be required for purposes of traffic and crowd control." In determining whether additional police protection is required, the Code requires the Chief of Police to consider such factors as the size, location and nature of the assembly and if additional police protection is then warranted, the applicant has the duty of prepaying the expenses as a condition of the issuance of the permit.

Pursuant to this Ordinance, the city determined that 18 additional officers would be needed to police the nuclear freeze march and three additional officers were needed to police the appellants' rally. The city based its decision on a number of factors including its belief that due to the controversial nature of the rally and the location of the Martin Marietta plant, a major defense manufacturer and a large local employer in Orlando, ³ the potential for hostile counter activity existed which necessitated the need for additional police protection. The City's decision was also based on the expectation that the rally and parade would draw many non-local participants who, based on past police experience, the City concluded would be more likely to cause disorder than would local residents. ⁴ The cost of this additional police protection totaled $1,435.74 ($1,202.64 to compensate police working the parade and $233.10 for the rally.) This amount was computed on the basis of what it would cost to pay police officers to work off duty at the rate of one and one-half pay at the regular hourly rate by working on the day of the event which was a non-workday. ⁵ Because the event was to take place on Saturday, the fee charged to the appellant for payment of police protection was computed on this overtime pay basis.

Prior to the payment of this fee, the appellants filed a complaint in the United States District Court, seeking declaratory and injunctive relief against the enforcement of Section 18A. 12 of the Orlando City Ordinance alleging that conditioning the exercise of First Amendment rights upon the payment of a "substantial" and "unreasonable" fee placed an insurmountable burden on First Amendment's guarantee of freedom of speech and assembly and violated the equal protection component of the Fourteenth Amendment. The plaintiffs then moved for a preliminary injunction to require the issuance of the parade permit without payment of the fees.

The district court heard oral argument on the plaintiffs' motion for a preliminary injunction and denied the injunction, relying on the Supreme Court's decision in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). The parties thereafter entered into a stipulation that the plaintiff would pay the sum of $1,435.74 under protest, as pre-payment for City of Orlando police services in connection with the plaintiff's parade and rally. The fee was paid and the defendant granted the plaintiffs permission to conduct the parade and rally. Subsequently, the parties filed motions for summary judgment to resolve the constitutionality of the statute.

II. THE ISSUE

The parties stipulated that the issue "to be determined was whether the city's ordinance requiring the payment of a fee for additional police services violate the First Amendment on its face or as applied in this case."

III. DISCUSSION

In the City's motion for summary judgment, the defendant claimed that the requirements of Orlando City Code Section 18A.12 requiring the payment of a fee to defray the costs of policing the event was constitutional under the Supreme Court's ruling in Cox v. New Hampshire. ⁶ Moreover, the defendant asserted that the ordinance was both reasonable and was related to legitimate government concerns as a valid time, place and manner restriction on the use of the public streets and that the license scheme in Cox is directly analogous to the ordinance scheme in the City of Orlando. It contends that the Orlando ordinance in question simply passes along the actual costs of policing the event and protecting the public safety to the event participants.

The defendant suggests that the Court in Cox did not limit the permissible fee to $300.00 and that relative dollar values should therefore be considered when comparing the $300.00 fee approved in Cox with the fee charged in the case at hand.

According to the defendant, other cases have cited Cox in approving fees designed to defray the actual expenses of administering a First Amendment activity. The defendant cites Collins v. Smith, 578 F.2d 1050, 1054 (2d Cir.1983) as citing Cox for the proposition that the government may impose financial burdens on the exercise of First Amendment rights when the amount involved is reasonable and directly related to legitimate government purposes.

In addressing the question of requiring the plaintiffs to pay overtime costs for police protection, the defendant argued that the payment of overtime for all off-duty work was a reasonable way to insure that police will be able to work at public assemblies and that in this regard, it meets the Cox requirement that fees be reasonable and non-arbitrary.

The defendant also argued that it was not improper to consider the content of the speech in determining the level of police protection required. The consideration of whether an activity might create disorder was only one factor in assessing the police protection costs. Moreover, the defendant asserted that the Orlando ordinance does not allow the denial of a permit because of a perceived potential for disorder. "That potential is simply one element of the assembly which is considered along with several other factors in assessing whether additional police protection is warranted."

Lastly, the defendant concluded that in light of the interest in public safety, the requirements of City Code 18A.12 are not only reasonable but necessary to ensure that all persons are provided equal access to public forums.

In the cross-motion for summary judgment the plaintiffs alleged that: (1) a city could not condition the exercise of First Amendment rights upon payment of the full costs of additional police protection necessitated by the exercise of First Amendment rights and that costs charged must be narrowly tailored and reflect the least restrictive means of accomplishing the governmental purpose; (2) the Orlando ordinance was not applied in a content neutral narrowly tailored fashion, but in a manner which interfered with the plaintiff's First Amendment rights.

Specifically, the plaintiffs argue that the license fee charged for the police services was based partially on the content of its views. As evidence to support this claim, the plaintiffs refer to the deposition of deputy chief of police Frederick Walsh, who testified that in addition to the usual factors of traffic control and the size of the demonstration, the police were concerned with the possibilities of hostile counter demonstrators and the presence of out-of-town demonstrators.

It was the plaintiffs' contention that it was improper to force the plaintiffs to pay projected police costs of protecting themselves from being attacked by possible hostile counter demonstrators. To the extent that the fees charged the plaintiffs were based upon the hostile counter activity and based on the content of the plaintiffs' speech, the plaintiffs contended that "the Defendant charged them for the enjoyment of a right granted by the Federal Constitution" and that no case stands for the proposition that a demonstrator must pay the police to protect enjoyment of First Amendment rights from violence. Moreover, the plaintiffs argued that the defendants' consideration of the...