Hightower v. City of S.F.
Decision Date | 24 December 2014 |
Docket Number | No. C–12–5841 EMC,C–12–5841 EMC |
Court | U.S. District Court — Northern District of California |
Parties | Mitch Hightower, et al., Plaintiffs, v. City and County of San Francisco, et al., Defendants. |
D. Gill Sperlein, The Law Office of D. Gill Sperlein, San Francisco, CA, Lawrence G. Walters, Walters Law Group, Longwood, FL, for Plaintiffs.
Tara M. Steeley, San Francisco City Attorney's Office, San Francisco, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Plaintiffs Oxane “Gypsy” Taub and George Davis have filed a class action against Defendants the City and County of San Francisco, two members of the Board of Supervisors (in their official capacities only), and the clerk of the Board of Supervisors (in her official capacity only), alleging that the enforcement of a San Francisco ordinance that bars nudity on, e.g., public streets and sidewalks violates their First Amendment rights. Currently pending before the Court is Defendants' motion to dismiss.
At issue in this case is the validity of a San Francisco ordinance which bars nudity on, e.g., public streets and sidewalks. Plaintiffs initiated this lawsuit as a facial challenge before the ordinance was even adopted. The Court granted Defendants' motion to dismiss Plaintiffs' initial complaint, with leave to amend. See Docket No. 26. Subsequently, the Court granted Plaintiffs' request for leave to amend its complaint again. See Docket No. 83. Plaintiffs filed a second amended complaint, challenging the constitutionality of the ordinance as-applied. Docket No. 84. Defendants now move to dismiss the second amended complaint. See Docket No. 86.
The ordinance at issue, Section 154 of the San Francisco Police Code (the Ordinance) provides as follows:
Plaintiffs contend that the above ordinance, as applied by Defendants, violates their rights as protected by the First Amendment. Plaintiffs claim that they are individuals who engage in expressive political activity while they are nude. See Docket No. 84, Second Amended Complaint, (“SAC”) ¶¶ 10–16. For example, Ms. Taub and Mr. Davis claim to have engaged in two nude protests at City Hall, expressing a pro-body and anti-§ 154 message.See SAC ¶¶ 10–12. At both of these events, Plaintiffs claim that the San Francisco police enforced § 154 by issuing citations and taking protesters into custody. See SAC ¶¶ 10–14. Plaintiffs claim that on three occasions Defendants have not enforced the ordinance against others despite obvious violations. See SAC ¶¶ 22–23. Plaintiffs also allege that the San Francisco Police Department (SFPD) have improperly deviated from the parade permitting procedures provided by Article 4 of the Police Code. ¶¶ 10–18. For example, Plaintiffs alleges that on December 5, 2013 the SFPD denied Ms. Taub's application for an event permit on the grounds that “public nudity violates SF Police Code 154.” SAC ¶ 16. San Francisco Police Code, Article 4, section 369, entitled “Grounds for denial of application for parade permit, ” provides:
On November 14, 2012, Defendants filed its initial complaint, asserting that the Ordinance was facially unconstitutional and seeking a preliminary injunction. Docket No. 1. Among other claims, Plaintiffs alleged that the Ordinance impermissibly restrained their First Amendment right to engage in expressive nude conduct. Id . On January 29, 2013, the Court dismissed Plaintiffs' pre-enforcement challenge with prejudice. Docket No. 26. In doing so, the Court determined that “absent any other context to suggest that nudity is intended to convey a particular...
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