Gerritsen v. City of Los Angeles

• Decision Date: 14 May 1993
• Docket Number: 92-55103,Nos. 91-55470,s. 91-55470
• Citation: 994 F.2d 570
• Parties: Jack GERRITSEN, Plaintiff-Appellant, v. CITY OF LOS ANGELES, et al., Defendants-Appellees. Jack GERRITSEN, Plaintiff-Appellant, v. CITY OF LOS ANGELES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 570

994 F.2d 570

Jack GERRITSEN, Plaintiff-Appellant, v. CITY OF LOS ANGELES, et al., Defendants-Appellees.

Jack GERRITSEN, Plaintiff-Appellant, v. CITY OF LOS ANGELES, et al., Defendants-Appellees.

Nos. 91-55470, 92-55103.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 3, 1993.

Decided May 14, 1993.

Jack Gerritsen, Monterey Park, CA, for plaintiff-appellant.

Robert Kujima, Ronald T. Pohl, and Janet G. Bogigian, Los Angeles City Atty.'s Office, Los Angeles, CA, for defendants-appellees City of Los Angeles and its employees.

Appeal from the United States District Court for the Central District of California..

Before: D.W. NELSON, WIGGINS, and LEAVY, Circuit Judges.

D.W. NELSON, Circuit Judge:

I. OVERVIEW

Appellant Jack Gerritsen ("Gerritsen") has strongly held opinions about the Mexican government and United States-Mexico relations. Gerritsen has sought to express these views by distributing literature, giving speeches, organizing rallies, and utilizing a variety of other protest activities throughout the greater Los Angeles area.

Appearing pro se below and before this court, Gerritsen brought these two actions under 42 U.S.C. § 1983 (1988) for deprivation of his First Amendment rights. ¹ The suits culminated in judgments for the defendants-appellees--the City of Los Angeles ("the City") and several of its employees--after separate bench trials. ² The cases have been consolidated on appeal as they raise similar issues and involve many of the same defendants.

We affirm the district court as to most of Gerritsen's claims, but reverse as to those involving the City's policies on handbill distribution in a public park. We hold that the City's ban on handbill distribution in certain areas of a public park and its permit scheme for handbill distribution in other areas of the park are not valid time, place or manner restrictions on protected speech in a public forum.

II. FACTUAL AND PROCEDURAL BACKGROUND

Each year approximately two million people visit El Pueblo de Los Angeles State Historic Park ("El Pueblo Park"), located in downtown Los Angeles. The park was established to commemorate the City's Mexican heritage and recognize its present-day Mexican-origin population. In addition to a plaza area with an open-air bandstand, El Pueblo Park contains the Olvera Street shopping and dining area with 78 businesses, the Plaza Catholic Church and the Biscailuz Building which houses the Mexican Consulate. The City's Board of Recreation and Parks sets policy for the park and controls its day-to-day operations.

Gerritsen has distributed his literature and made speeches in a variety of cities and parks in the Los Angeles area, but El Pueblo Park is one of his favorite sites because of its many Mexican American and Mexican visitors. He believes this audience is more likely than others to be receptive to his message critical of policies of the Mexican government and the United States' relationship with Mexico. He estimates that between 1986 and 1991, the period during which he claims his rights were violated by the City and city officials, he visited the park 400 times and distributed more than 50,000 handbills in El Pueblo Park. ³

During Gerritsen's visits to the park, he has had a number of conflicts with employees of the park's security force, park administrators, officers of the Los Angeles Police Department, and representatives of the Mexican Consulate. ⁴ Gerritsen testified to numerous incidents of harassment, verbal and physical intimidation, detention, arrest, and physical assault by park security guards, Mexican Consulate security officers, and Los Angeles police officers. At trial, the City argued that its official policy was not to enforce the policies, claimed that all of these altercations were provoked by Gerritsen, and portrayed Gerritsen as an uncontrollable protestor.

On August 11, 1983, in response to conflicts between Gerritsen and park administrators and security guards, the City's Board of Recreation and Parks Commission enacted provisions regarding handbill distribution in El Pueblo Park. ⁵ Prior to the enactment of this policy, there was no formal policy concerning the distribution of literature in the park. The City concedes that these provisions were prompted solely by Gerritsen's political activity in the park and were the result of consultations between El Pueblo Park Director Jerry Smart and the City Attorney's office. The guidelines have never been repealed.

The 1983 guidelines contain two basic policies. First, the so-called blue line policy prohibits all handbill distribution in certain areas of the park (indicated by blue demarcations on the pavement). These areas include two of the park's most popular areas--the area around the Mexican Consulate and the Olvera Street merchants area. The second policy establishes a permit scheme for limited handbill distribution in other areas of the park. According to the regulations, "the Park Director shall issue a permit immediately on proper application" unless one of five specified grounds for denial exist. ⁶ If the director denies the permit, he is required to inform the applicant in writing and to specify the reasons for the denial.

Both park director Jerry Smart and Gerritsen testified at trial that Smart informed Gerritsen of the new rules regarding handbill distribution in the park shortly after their passage. About a month later, Gerritsen filed the first of hundreds of applications for permits to distribute literature. In some cases Gerritsen received permits, but in other cases he was denied permission to distribute literature. Sometimes the denials were based upon one of the reasons in the written Guidelines; on other occasions, the director hand-wrote a reason for denying the permit which did not appear on the permit form. Gerritsen testified that he initially did not distribute literature in the blue-line areas, but that he later distributed handbills through-out the park, regardless of whether he received permits to do so. He stated that he would have distributed even more handbills had the permit policy not been in existence.

Although the City Attorney's office helped draft the provisions, that office later advised park officials not to enforce either the blue-line ban or the permit scheme. The parties dispute exactly when the City ceased enforcing the policies. In the first trial, park director Smart testified that he attempted to enforce the blue-line ban into early 1984. In the second trial, Smart testified that he stopped enforcing the blue-line ban within two months of the Board's enactment of the provisions, sometime in October 1983. Gerritsen contends that park officials continued to enforce the blue-line ban well into 1986 and that, even after that time, they "unofficially" enforced the provision.

The permit provision was in effect considerably longer than the blue-line policy. Park director Smart testified that the permit policy was in effect until "sometime in 1985." He also testified, however, that even after the permit policy was "officially" withdrawn, the City Attorney directed him to keep permit applications on file. Smart continued to accept Gerritsen's applications for permits--and continued to approve or deny them--throughout 1988. Gerritsen testified that, even after Smart directed park security guards to stop enforcing the permit policy, the guards continued to harass Gerritsen about his political activities and detained him on more than 20 occasions:

These permit denials were enforced on many occasions by security guards. On numerous occasions, they would approach me and ask me for a permit. When I could not show them a granted permit, they would tell me to get out of the park or attempt to arrest me or handcuff me....

In addition to expressing political views by distributing literature at El Pueblo Park, Gerritsen sought to use street banners to convey his views. Between 1986 and 1989, Gerritsen submitted as many as 50 applications to the City to hang banners across various streets, mostly in the downtown area. The proposed banners included a variety of messages: "Mexico--World Class Drug Pusher;" "Viva la Revolucion;" "City Hall Sucks;" "Gay Liberation;" "Merry Christmas, Happy New Year;" "This Space Censored by the City of Los Angeles;" and, on one occasion, a completely blank banner. The City, through its Bureau of Street Maintenance, denied each of Gerritsen's banner permit applications.

Los Angeles Municipal Code § 62.132(m), which was substantially amended in 1942 and 1986, governs the hanging of street banners in the city. The City requires any person or organization wishing to hang a non-commercial banner across a city street to apply for a permit and post an insurance bond. The 1986 amendments allow only banners which announce "community, charitable and nonprofit events which serve a civic and public interest." A designated official in the City's Bureau of Street Maintenance has discretion to grant or deny permits, subject to review by the Board of Public Works.

In 1987 and 1989 Gerritsen brought these Section 1983 claims against the City and numerous other defendants seeking compensatory damages. ⁷ Both suits resulted in bench trials (at which Gerritsen represented himself) and judgments in favor of the City and its employees. Both district courts found that the El Pueblo Park guidelines were not enforced by the City and, thus, that they were not applied to Gerritsen. Thus, neither court reached the merits of Gerritsen's claim that the blue-line ban and the permit scheme are unconstitutional. Gerritsen timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

III. STANDARD OF REVIEW

This court reviews the district court's factual findings for clear error. In re San Vicente Medical Partners, Ltd., 962 F.2d 1402, 1405 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 210, 121 L.Ed.2d 150 (1992). We review the district court's...