Harman v. City of Santa Cruz, Case No. 5:16–cv–04361–EJD

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtEDWARD J. DAVILA, United States District Judge
Citation261 F.Supp.3d 1031
Parties Donald HARMAN, Plaintiff, v. CITY OF SANTA CRUZ, CALIFORNIA, et al., Defendants.
Decision Date05 July 2017
Docket NumberCase No. 5:16–cv–04361–EJD

261 F.Supp.3d 1031

Donald HARMAN, Plaintiff,
v.
CITY OF SANTA CRUZ, CALIFORNIA, et al., Defendants.

Case No. 5:16–cv–04361–EJD

United States District Court, N.D. California, San Jose Division.

Signed July 5, 2017


Brian Ricardo Chavez–Ochoa, Attorney at Law, Valley Springs, CA, Nathan Wesley Kellum, Pro Hac Vice, Center for Religious Expression, Memphis, TN, Robert Henry Tyler, Tyler & Bursch, LLP, Murrieta, CA, for Plaintiff.

Barbara H. Choi, Atchison, Barisone, Condotti & Kovacevich, Santa Cruz, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

Re: Dkt. Nos. 10, 10–23

EDWARD J. DAVILA, United States District Judge

Plaintiff Donald Harman brings this civil rights action under 42 U.S.C. § 1983 against the City of Santa Cruz, as well as Police Chief Kevin Vogel, Lieutenant Warren Barry, Sergeant Carter Jones, and Officer Ian Burnham (collectively, "Defendants"), alleging that certain provisions of the Santa Cruz Municipal Code ("SCMC") are unconstitutional restrictions on protected speech. Specifically, Plaintiff challenges the constitutionality of the City's noise ordinance, SCMC section 9.36.020, as well as Chapter 9.40 et seq. , which governs the use and approval of sound amplification permits. Compl. ¶ 1, Dkt. No. 1. Harman challenges the constitutionality of these two ordinances on their face and as applied to his speech, and seeks declaratory and injunctive relief, as well as nominal damages. Compl. ¶ 3.

The court has jurisdiction over the federal claims at issue pursuant to 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction over the California State Constitution claims under 28 U.S.C. §§ 1367. Presently before the court is Harman's Motion for a Preliminary Injunction requesting that the court "enjoin[ ] Defendants ... from applying Ordinances 9.36.020 and 9.40.010 et seq. so as to restrict constitutionally-protected speech of speakers, including Harman and other third parties, on the city sidewalks alongside Pacific Avenue." Compl. ¶ D; Dkt. Nos. 10 and Dkt. No. 10–23.1 Having carefully reviewed the

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papers submitted by both parties in this matter, the Motion for a Preliminary Injunction will be GRANTED IN PART and DENIED IN PART for the reasons explained below.

I. BACKGROUND

Donald Harman is a self-described born-again evangelical Christian who seeks to "share the message of God's salvation, which he refers to as the ‘gospel,’ with as many people as possible." Compl. ¶¶ 18–19. In order to share this message, Harman typically goes to public sidewalks and "preaches"—that is, he "orally and publically proclaims his religious beliefs." Compl. ¶¶ 20–21; see also Aff. of Donald Harman ("Harman Aff.") ¶¶ 2–3 Dkt. No. 10–1.

Harman has preached regularly in downtown Santa Cruz since 2013, primarily on the sidewalks along Pacific Avenue at the intersections of Pacific Avenue and Cooper Street, and Pacific Avenue and Soquel Avenue. Harman Aff. ¶¶ 12–13. The Pacific Avenue sidewalks are characteristically busy with a variety of street performers, including musicians, dancers, activists, poets, clowns, magicians, jugglers, and acrobats, among others, which often results in a lively, loud, and even chaotic environment that has come to be considered part of "the Santa Cruz culture" and something of "a staple of the downtown experience." Compl. ¶¶ 33–39. Harman acknowledges that some might not appreciate his message, but states that he does not try to offend, insult, or harass anyone, does not encourage violence, and does not solicit funds or membership in any organization. Compl. ¶¶ 25–27. Because he "prefers to speak in conversational tone in lieu of speaking with a raised voice," Harman favors the use of a personal amplification device when he preaches. Compl. ¶ 22.

For approximately one year, Harman shared his religious message in downtown Santa Cruz through an amplifier without incident or interference. Compl. ¶ 41; Harman Aff. ¶ 14. While he did encounter the occasional passersby who voiced disagreement with his message or heckled him, these exchanges never involved physical alterations. Id. However, in March of 2014, a police officer approached Harman and informed him that he needed to acquire a permit from the Santa Cruz Police Department in order to use the amplifier in public. Compl. ¶ 43. Although Harman "believed he had a right to speak on a public sidewalk with reasonable amplification without having to obtain a permit in advance," he states that did not want to cause trouble or risk arrest, so he left. Compl. ¶ 42; Harman Aff. ¶ 15.

A. Santa Cruz Sound Amplification and Noise Restriction Ordinances

Santa Cruz Municipal Code Chapter 9.40, entitled Sound Amplifiers (the "Amplifier Ordinance"), mandates that all persons who wish to use any sound-amplifying device or equipment on public or private property must first secure a permit from the police department. See § 9.40.010.2 Among other requirements, the application for the sound amplification permit calls for the applicant to "describe in detail the activity proposed to be conducted for which [the permit] is requested," and "set forth the steps that the applicant will take to ensure that the sound amplification will not unreasonably disturb other people

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within the vicinity." § 9.40.020. The Amplifier Ordinance vests the police chief with the power to grant or deny the permit, stating:

The police chief may grant the sound amplification permit if he determines that the sound amplification will be conducted in such a manner as not to unreasonably disturb the neighbors or other persons in the vicinity of the sound amplification, and if he further determines that if actually implemented, the steps to be taken by the applicant to minimize or avoid such disturbance will be adequate. In granting a permit, the police chief may impose such conditions as may be appropriate or necessary in order to protect the public peace and safety.

§ 9.40.030. The Ordinance also includes a renovation provision, which further provides, "Any permit granted pursuant to this section shall be revocable at any time by the police chief for good cause." § 9.40.040. An unfavorable decision by the police chief regarding a sound amplification permit may be appealed by the aggrieved party to the city council. § 9.40.050.

On April 12, 2014, Harman submitted an application for a sound amplification permit in accordance with this process, which Santa Cruz Police Lieutenant Warren Barry granted on May 1, 2014.3 Compl. ¶ 43; Barry Decl. ¶¶ 11–12 and Ex. A (Approved Sound Amplification Permit Appl.), Dkt. No. 27–1. The permit's "Event Conditions" state that "complaints of loud noise may result in revocation of permit," and that applicant must "obey all local, state, and federal laws." See Barry Decl., Ex. A at 2. The permit includes the date the application was submitted and the date it was approved, however, the permit does not indicate any expiration date. See id. at 1–2; Compl. ¶ 44.

The permit also expressly requires compliance with Santa Cruz Municipal Code Chapter 9.36, entitled Noise (the "Noise Ordinance"). See § 9.36.010 et seq.4 Section 9.36.020 of the Noise Ordinance provides:

No person shall make, suffer or permit to be made any noises or sounds which are unreasonably disturbing or physically annoying to people of ordinary sensitiveness or which are so harsh or so prolonged or unnatural or unusual in their use, time or place as to cause physical discomfort to any person.

This language is also provided on the permit application itself, though the application quotes an outdated version of the Ordinance that was previously invalidated by this court in Hampsmire v. City of Santa Cruz, 899 F.Supp.2d 922, 938–939 (N.D. Cal. 2012). See Barry Decl., Ex. A at 1. In Hampsmire, the court found section 9.36.020's provision banning noise "which is not necessary in connection with any activity which is otherwise lawfully conducted" to be unconstitutionally vague. Id. Following the Hampsmire ruling in 2012, the Santa Cruz City Council revised the Ordinance to remove this clause, leaving only the above referenced language. Declaration of Barbara H. Choi ("Choi Decl."), Dkt. No. 24.

B. Harman is Confronted by Santa Cruz Police Officers Regarding Alleged Violations of the City's Noise Ordinance

After Harman received his permit, he returned to preaching on Pacific Avenue

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with the use of a personal amplification device, and did so without incident for approximately another year. See Compl. ¶¶ 43–46. However, on Saturday, May 16, 2015, Harman alleges that he was approached by Lt. Barry, who informed him that he had "received anonymous complaints about Harman's expression," and asked him if he could lower the volume of his amplifier. Id. ¶ 46. Harman contends that he was not being unreasonably loud—that he "was not nearly as loud as performers who regularly played in those same areas"—and therefore any complaints about him must have been based on the content of his message rather than its volume. Harman Aff. ¶ 17. However, he states that he "did not want...

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