Gospel Missions of America v. Los Angeles

• Decision Date: 17 August 2005
• Docket Number: No. 04-55888.,04-55888.
• Citation: 419 F.3d 1042
• Parties: GOSPEL MISSIONS OF AMERICA, A RELIGIOUS CORPORATION; Erich Wagner, II; Ray Austin; Ron Barber; P.J. Bourbonnais; Jay Bowman, Jr.; William Campbell; Warren Daly; Edward Ebeling; Allan Gathungu; Douglas Gorden; Jeremy Harsh; Kelvin Jackson; James Kahl; John D. Love; George Lownes; Michael Mefford; John Proctor; James C. Roberts; James Rodgers; David Root; Donald Stach; James Vanderpoel; Brenda Wagner; Paul Winn; Thomas Wise; Ruth Washington; Ray Zedd, Plaintiffs-Appellants, v. CITY OF LOS ANGELES; Los Angeles Work Airports; Henry Acosta, as an individual and in his official capacity as Officer for the Airport Police Bureau; Shirley Flucus, as an individual and in her official capacity; Ronald E. Marbrey, as an individual and in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

419 F.3d 1042

GOSPEL MISSIONS OF AMERICA, A RELIGIOUS CORPORATION; Erich Wagner, II; Ray Austin; Ron Barber; P.J. Bourbonnais; Jay Bowman, Jr.; William Campbell; Warren Daly; Edward

Ebeling; Allan Gathungu; Douglas Gorden; Jeremy Harsh; Kelvin Jackson; James Kahl; John D. Love; George Lownes; Michael Mefford; John Proctor; James C. Roberts; James Rodgers; David Root; Donald Stach; James Vanderpoel; Brenda Wagner; Paul Winn; Thomas Wise; Ruth Washington; Ray Zedd, Plaintiffs-Appellants, v. CITY OF LOS ANGELES; Los Angeles Work Airports; Henry Acosta, as an individual and in his official capacity as Officer for the Airport Police Bureau; Shirley Flucus, as an individual and in her official capacity; Ronald E. Marbrey, as an individual and in his official capacity, Defendants-Appellees.

No. 04-55888.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2005.

Filed August 17, 2005.

COPYRIGHT MATERIAL OMITTED

James H. Fosbinder and Rhonda M. Fosbinder, Kahului, HI, for the plaintiffs-appellants.

John M. Werlich, Assistant City Attorney, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-99-07038-SVW.

Before GOODWIN, WALLACE, and THOMAS, Circuit Judges.

WALLACE, Circuit Judge.

Gospel Missions of America (GMA) appeals from the district court's summary judgment for the City of Los Angeles (City). GMA contends that the definitions of the terms "charitable" and "solicitation" in section 44.00(b) and (g) of the Los Angeles Municipal Code (LAMC) are unconstitutionally vague and overbroad, and that their application violates the Equal Protection Clause. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I.

GMA is a non-profit corporation that ministers and provides food, shelter, clothing and money to homeless individuals who join as members. Its members solicit funds from the public, which are used to provide for the members' needs and to support GMA. In 1992, the Los Angeles County Sheriff's Department raided properties owned by GMA to investigate suspected violations by GMA of the City's charitable solicitation laws. See LAMC §§ 44.00-44.15. In particular, section 44.09 provided that no one may solicit charitable contributions in the City without an Information Card, which could be obtained only after an applicant filed the information specified in section 44.04 with the Los Angeles Police Department. Id. §§ 44.04, 44.09. After GMA filed suit challenging the validity of these laws, the district court granted summary judgment for GMA and enjoined the City from enforcing several provisions of the laws. Gospel Missions of Am. v. Bennett, 951 F.Supp. 1429 (C.D.Cal.1997) (GMA I).

Thereafter, the City amended its charitable solicitation laws in an effort to comply with the injunction. However, on July 8, 1999, GMA filed a complaint in the district court alleging that the City's enforcement of certain provisions violated the GMA I injunction and/or was unconstitutional. GMA claimed, in part, that the definitions of "charitable" and "solicitation" in LAMC § 44.00(b) and (g) were unconstitutionally vague and overbroad in violation of the First Amendment, and that its equal protection rights had been violated.

When GMA filed suit in 1999, section 44.00(b) defined the term "charitable" for purposes of the City's charitable solicitation laws to "include philanthropic, social service, benevolent and patriotic, whether they are actual or purported." LAMC § 44.00(b). Section 44.00(g) defined the term "solicitation" to include:

(1) Any oral or written request;

(2) The distribution, circulation, mailing, posting or publishing of any handbill;

(3) The making of any announcement through the press, over radio or television, or by telephone, telegraph or billboard, concerning an appeal, assemblage, athletic or sports event, bazaar, benefit, campaign, contest, dance, drive, entertainment, exhibition, exposition, party, performance, picnic, sale or social gathering which the public is requested to patronize or to which the public is requested to make a contribution for any charitable purpose connected therewith;

(4) The sale of, or offer to sell, any advertisement, advertising space, book, card, chance, coupon, device, magazine, membership, merchandise, subscription, ticket or any other similar token, thing or device in connection with which any appeal is made for charitable purposes or when the name of any charity, philanthropy or charitable organization is used or referred to in such appeal as an inducement or reason for making such sale, or when or where in connection with such sale, a statement is made that the whole or any part of the proceeds from such sale will be donated to a charitable purpose or organization.

LAMC § 44.00(g) (1997) (emphasis added). In addition, section 44.00(g) clarified that "[n]o communication between natural persons personally known to each other shall constitute a solicitation." Although these definitions of "solicitation" and "charitable" were later amended in 2003, GMA is seeking money damages it allegedly sustained due only to the City's enforcement of the laws prior to these amendments. We therefore limit our review to the pre-2003 version of the laws.

After the district court sua sponte granted summary judgment for the City (GMA II), GMA appealed to this court. We affirmed in part, but remanded to the district court "to determine whether the `Information Card' is the functional equivalent of a `license' and, if so, to consider Gospel Missions' vagueness, overbreadth, and equal protection challenge to sections 44.00(b) and (g)." Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 556 (9th Cir.2003) (GMA III).

On remand, the district court concluded that the Information Card is akin to a license, and therefore GMA has standing to assert an overbreadth challenge. See Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th Cir.2001). The City does not challenge this conclusion on appeal. The court also held that the definitions of "charitable" and "solicitation" were not unconstitutionally vague or overbroad, and that GMA's equal protection rights had not been violated. Accordingly, the district court entered summary judgment for the City. GMA filed this timely appeal.

We review de novo a district court's summary judgment on the constitutionality of a statute or ordinance. Nunez v. City of San Diego, 114 F.3d 935, 940 (9th Cir.1997). "Summary judgment is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, (a) `the district court correctly applied the relevant substantive law' and (b) there are no genuine issues of material fact in dispute." Clark, 259 F.3d at 1004 (citation omitted).

II.

GMA argues that the definition of "charitable" in section 44.00(b), as well as the term "charitable purpose" in the definition of "solicitation" in section 44.00(g), are unconstitutionally vague both facially and as applied to its particular activities.

A.

We address first GMA's challenge to the ordinance as facially vague; GMA argues that the definition of charitable solicitation "could include any panhandler with a family, any church member soliciting for it's [sic] food drive, or any political activist selling bumper stickers for his or her own patriotic cause." See Cal. Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1149 (9th Cir.2001) ("In the First Amendment context, facial vagueness challenges are appropriate if the statute clearly implicates free speech rights"); Foti v. City of Menlo Park, 146 F.3d 629, 639 n. 10 (9th Cir.1998).

An ordinance is unconstitutionally vague "if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits," or "if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). There must be a greater degree of specificity and clarity when First Amendment freedoms are at stake. See Cal. Teachers, 271 F.3d at 1150. However, "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see also Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ("Condemned to the use of words, we can never expect mathematical certainty from our language"). As a result, "uncertainty at a statute's margins will not warrant facial invalidation if it is clear what the statute proscribes `in the vast majority of its intended applications.'" Cal. Teachers, 271 F.3d at 1151, quoting Hill, 530 U.S. at 733, 120 S.Ct. 2480; see also Grayned, 408 U.S. at 112, 92 S.Ct. 2294 (concluding that ordinance "clearly `delineates its reach in words of common understanding'" (citation omitted)). "Facial invalidation is, manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort." Cal. Teachers, 271 F.3d at 1155 (quotation marks and citation omitted).

In this case, the term "charitable" is clearly a word of "common understanding" that provides a "person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned, 408 U.S. at 108, 112, 92 S.Ct. 2294. As defined in Webster's New World Dictionary (Third College Ed.1988), "charitable" means, among other things, "kind and generous in giving money or other help to those in need." Cf. Grayned, 408 U.S. at 111 & n. 16, 92 S.Ct. 2294 (citing Webster's definition of "diversion"). The various examples of "charitable" activities in section 44.00(b) — "philanthropic, social service, benevolent and patriotic" — accord with this common definition.

A variety of ordinances with similarly flexible terms have survived facial vagueness...