Cuviello v. City of S.F.

• Decision Date: 15 April 2013
• Docket Number: No. C–12–3034 EMC.,C–12–3034 EMC.
• Citation: 940 F.Supp.2d 1071
• Parties: Joseph P. CUVIELLO, et al., Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

940 F.Supp.2d 1071

Joseph P. CUVIELLO, et al., Plaintiffs,

v.CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

No. C–12–3034 EMC.

United States District Court, N.D. California.

April 15, 2013.

Joseph P. Cuviello, Redwood City, CA, pro se.

Trent James Thornley, Law Office of Trent J. Thornley, Matthew Lowe Springman, Matthew Springman, G. Whitney Leigh, Gonzalez & Leigh, LLP, San Francisco, CA, for Plaintiffs.

Aileen Marie McGrath, Robert A. Bonta, San Francisco City Attorney's Office, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

Defendants the City and County of San Francisco (“the City”), San Francisco Police Officer N. Yu, and San Francisco Park Ranger J. Mitra (collectively, “Defendants”) bring the current motion to dismiss the First Amended Complaint for Injunctive and Declaratory Relief and Damages (“FAC”) brought by Plaintiffs Joseph P. Cuviello, Deniz Bolbol, and Alex Felsinger. In their complaint, Plaintiffs plead seven different causes of action stemming from Defendants' enforcement of sections 7.08(d) and 7.15 of the San Francisco Park Code (hereinafter, “section 7.08(d)” and “section 7.15”), as well as their restricting Plaintiffs' free speech activities to a 20 feet by 20 feet corner of San Francisco's Union Square. Defendants urge the Court to dismiss all seven causes of action, with the exception of Plaintiffs' as-applied challenge to the enforcement of section 7.08(d) and their 42 U.S.C. § 1983 claim against the City to the extent it is based on such enforcement.

II. REQUEST FOR JUDICIAL NOTICE

Defendants request judicial notice of three documents: (1) a copy of San Francisco Park Code section 7.15; (2) a copy of San Francisco Park Code section 7.08 as it was in effect at the time of the incident in this case, prior to amendment pursuant to Ordinance No. 120819; and (3) a copy of Ordinance No. 120819. Request for Judicial Notice (“RJN”), Docket No. 63. Plaintiffs do not contest the validity of any of these documents. See Pl.'s Opp'n, Docket No. 67. “Municipal ordinances are proper subjects for judicial notice.” Tollis v. County of San Diego, 505 F.3d 935, 938 n. 1 (9th Cir.2007). Thus, the Court takes judicial notice of these three documents.

When section 7.08(d) was in effect, it read, in relevant part, that

Union Square ... [is a] frequent site[ ] for the issuance of permits involving large groups of people. In order to prevent interference with the progress and enjoyment of these events, no person may engage in petitioning, leafletting, demonstrating or soliciting in th[is] park[ ] while an event is in progress for which a permit has been issued by the Recreation and Park Department except in [the] area[ ] described below as [a] public assembly area [ ]. No person shall be considered in violation of the prohibition contained in this subsection until he or she has been informed by a member of the San Francisco Police Department, a member of the Park Patrol, or a member of the Recreation and Park Department who displays proper identification of such employment that the event is being conducted pursuant to a valid permit or until the permit pursuant to which the event is being conducted has been shown to such person. The area[ ] in which petitioning, leafletting, demonstrating and soliciting [is] prohibited during permitted events and the designated public assembly area[ ] during permitted events [is] described below.

...

Union Square—The prohibited area is the western half (Powell Street side) of the Square. The public assembly area is the eastern half (Stockton Street side) of the Square.

RJN Ex. B. Section 7.08(d) was repealed following the filing of Plaintiffs' complaint. See RJN Ex. C.

Section 7.15 reads, in full:

Any person possessing a valid permit, which states that an area has been reserved for such person's use, has the exclusive right to use the area or facility specified in the permit for the time specified. It shall be unlawful for any person to refuse to leave an area or facility which has been reserved by a valid permit when asked to do so by the person or party displaying such permit, by a Recreation and Park Department employee, by a police officer, or by a member of the Park Patrol, and no person shall in any manner disturb or interfere with any person or party occupying the area under such a permit, nor with the belongings of such person or party.

RJN Ex. A.

III. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Cuviello, Bolbol, and Felsinger are animal rights activists affiliated with Humanity Through Education, a San Francisco Bay Area group that demonstrates regarding the condition and treatment of animals kept by circuses. FAC, Docket No. 52, ¶¶ 20–23. On September 2, 2011, the Ringling Bros. and Barnum & Bailey Circus (“Ringling Bros.”) held a promotional event in downtown San Francisco at Union Square, a 2.6 acre public plaza. Id. ¶ 24. Plaintiffs and others attended the event to hold signs, hold banners, and distribute leaflets regarding the circus's mistreatment of animals. Id. ¶ 25.

When Plaintiffs Cuviello and Bolbol arrived, they were approached by Defendants Yu and Mitra (collectively, the “Officers”), who told them that Ringling Bros. had a permit to use Union Square and that, if Plaintiffs wished to demonstrate, they would have to do so in the designated free speech box, an approximately 20 feet by 20 feet area cordoned off with bike racks in the southeastern corner of Union Square. Id. ¶ 31. Yu told Cuviello and Bolbol that if they demonstrated outside of this free speech area, they would be cited for violation of section 7.15. Id. ¶ 33. Cuviello and Bolbol told Yu and Mitra that Union Square was a public forum and asked Yu to call his watch commander to clarify the law. Id. ¶ 34. Cuviello and Bolbol then went up to the northwestern area of the square and unfurled a banner reading “Ringling Bros. Beats Animals” so that it was viewable by the public watching the circus's performance. Id. Yu and Mitra grabbed hold of the banner and, despite Plaintiffs' protest to not touch their property, attempted to pull it down while Cuviello and Bolbol were attempting to hold it up. Id. ¶ 35. Cuviello and Bolbol struggled with Yu and Mitra for several minutes. Id. Mitra told Cuviello that the property was “private” and that Plaintiffs were trespassing by demonstrating outside the free speech zone designated by the officers. Id.

After this incident, Yu informed Cuviello and Bolbol they would be handcuffed and given a citation for violation of San Francisco Park Code section 7.08(b), which prohibits demonstration that substantially obstructs traffic of pedestrians or vehicles. Id. ¶ 36. Cuviello asked to see the San Francisco Park Code and Defendant Yu gave him a copy of excerpts of the code. Id. Yu then told Cuviello that he would only be cited if he continued to protest outside the free speech area. Id. ¶ 39. Cuviello responded that he would take the citation and Yu proceeded to write the citation, taking about fifteen minutes to do so. Id. ¶ 40. During this time, Plaintiff Felsinger arrived and began holding a sign about ten feet from where Cuviello was being cited. Id. ¶ 42. When Yu finished the citation, Cuviello observed that he was cited for violation of section 7.08(d). Id. ¶ 43. After Yu issued the citation, he and Mitra reiterated to Plaintiffs that they could only demonstrate in the designated free speech area. Id. ¶ 46. Yu then proceeded to cite Felsinger for violation of section 7.08(d). Id. Because Bolbol did not have identification, Yu told her she would not be cited and released, but instead taken into custody and transported to the police station for identification. Id. ¶ 48. Based on this threat of arrest, Bolbol ceased demonstrating and leafleting. Id.

After Felsinger asked Yu to confirm that the demonstrators could only demonstrate in the free speech area, Felsinger and Yu looked at the Park Code together. Id. ¶¶ 51–52. Felsinger pointed out that the Park Code stated that demonstrations were allowed on the entire eastern side of Union Square. Id. ¶ 52. Felsinger and Cuviello then called over their attorney, Whitney Leigh, who agreed that section 7.08(d) permitted demonstrations in the entire eastern half of Union Square. Id. ¶ 53. Yu told Plaintiffs that “the Park” designated the free speech area and claimed that he never told Plaintiffs they had to be in the free speech area. Id. Bolbol then asked Yu if they had to remain in the free speech area, to which Yu responded “no comment” and then told Plaintiffs to wait for his sergeant to arrive. Id. ¶ 54. Based on Plaintiffs' concern that the event would be over by the time the sergeant arrived, Plaintiffs' attorney then asked Yu whether the demonstrators could go outside the free speech area. Id. ¶ 55. Yu responded that they could “as long as it doesn't interfere with the performance.” Id. Plaintiffs and the other demonstrators then set up their banner behind the stage on the eastern side of Union Square and passed out leaflets on the eastern side of Union Square. Id. ¶ 56. Shortly thereafter, San Francisco Police Sergeant Ed Garcia arrived and confirmed that the Park Code allowed Plaintiffs to demonstrate in the eastern half of Union Square, not just the southeastern corner. Id. ¶ 57.

Plaintiffs allege that they were the only individuals restricted to the free speech area and to the eastern half of Union Square, as other individuals, including Ringling employees engaged in pro-circus speech and members of the public, were allowed to move freely through Union Square. Id. ¶ 59.

Plaintiffs Cuviello, Bolbol, and Felsinger filed their initial complaint in this matter on June 12, 2012, asserting claims against the City, the San Francisco Recreation and Park Department,¹ Yu, and Mitra. Docket No. 1. Defendants subsequently filed their first motion to dismiss on September 14, 2012. Docket No....