Long Beach Area Peace v. City of Long Beach

• Decision Date: 24 July 2009
• Docket Number: No. 05-55083.,05-55083.
• Citation: 574 F.3d 1011
• Parties: LONG BEACH AREA PEACE NETWORK; Diana Mann, Plaintiffs-Appellees, v. CITY OF LONG BEACH, a municipal corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

574 F.3d 1011

LONG BEACH AREA PEACE NETWORK; Diana Mann, Plaintiffs-Appellees, v. CITY OF LONG BEACH, a municipal corporation, Defendant-Appellant.

No. 05-55083.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2007.

Amended July 24, 2009.

Filed April 15, 2008.

Randall C. Fudge, Long Beach City Attorney's Office, Long Beach, CA, for the appellant.

Carol A. Sobel, Santa Monica, CA, for the appellees.

Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. CV-04-08510-SJO.

Before: HARRY PREGERSON, W. FLETCHER, and MARSHA S. BERZON, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

The opinion filed on April 15, 2008 and reported at 522 F.3d 1010 is amended as follows:

(1) At 522 F.3d at 1022, following the first citation sentence for Ward v. Rock Against Racism, insert the following sentence:

But see FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-30, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (invalidating as an impermissible prior restraint a licensing ordinance regulating the use of private property).

(2) At 522 F.3d at 1022, at the end of the first paragraph, change the citation from "Id." to "Ward, 491 U.S. at 795 n. 5, 109 S.Ct. 2746."

(3) In the last paragraph at 522 F.3d at 1023, after the citation sentence for Ward, insert the following text:

The Supreme Court has cautioned that "this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Id.

The panel has unanimously voted to deny the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote to rehear the matter en banc. See Fed. R.App. P. 35(b). The petitions are DENIED. The court will not accept any further petitions for rehearing or rehearing en banc.

IT IS SO ORDERED.

OPINION

WILLIAM A. FLETCHER, Circuit Judge:

We review the constitutionality of § 5.60 of the City of Long Beach Municipal Code ("LBMC" or "Ordinance"). Appellees Long Beach Area Peace Network and Diana Mann (collectively "the Peace Network") challenged § 5.60 under the First Amendment after the City of Long Beach ("the City") sought payment of administrative fees associated with a march and rally held by the Peace Network on March 22, 2003. The district court held that § 5.60 in its entirety unconstitutionally restricts the right to free speech and permanently enjoined the City from enforcing it. We affirm in part and reverse in part.

We hold that five challenged features of § 5.60 are constitutional: (1) the provisions distinguishing between expressive activity and other activity; (2) the provision allowing the City Manager to impose conditions to meet stated purposes; (3) the provision authorizing the City Manager to obtain proof of indigent status; (4) the provision authorizing the City Manager to require a permittee to obtain insurance; and (5) the provision authorizing criminal penalties for violations of the Ordinance. However, we hold that four other features are unconstitutional: (1) part of the provision defining "special events"; (2) the provision applicable to "spontaneous" events; (3) the hold-harmless and indemnification provision; and (4) the provisions authorizing waiver of permit fees and departmental services charges.

We remand to allow the district court to determine whether the unconstitutional provisions are severable from the remainder of § 5.60.

I. Background

As described by the district court, the Long Beach Area Peace Network is "an unincorporated, loosely organized group of peace activists without an office, organizational phone, organizational email or insurance." On February 15, 2003, before the beginning of the Iraq War, the Peace Network sponsored a protest march and rally in the City of Long Beach, California. In preparation for the event, Dr. Eugene Ruyle ("Ruyle"), a retired professor and Peace Network member, submitted an application for a "special event" permit, as required by § 5.60.020(A). Long Beach Municipal Code ("LBMC") § 5.60.020(A) (1999). After negotiating the march route with Ruyle, the City approved the permit.

The march was conducted on public streets along the route suggested by the City. The event concluded with a rally in Bixby Park, a public park in the City. Several elected officials, including a City Council member and a State Assembly member, participated in the rally. According to some estimates, between 1,000 and 1,500 people attended the event.

The permit application, signed by Ruyle in February 2003, provided that the Peace Network would "hold the City harmless from any liability caused by the conduct of the event"; that the "City will not be liable for any mishaps or injuries associated with the event"; and that "[f]ull responsibility for activities at the event will be assumed by [the Peace Network]." The application also provided that the Peace Network would "be responsible for all costs incurred by City departments for use of City personnel and/or equipment." After submitting the application, Ruyle wrote a letter to the City requesting a waiver of the permit application fee and the departmental services charges imposed under § 5.60. The City did not assess any fee or charges for the February event.

On March 20, 2003, approximately one month later, the United States launched an aerial assault on Baghdad. In anticipation of the assault, the Peace Network had already organized another march and rally, to be held on March 22. Ruyle had submitted a letter to the City on or about March 18 describing the anticipated "spontaneous" event. Section 5.60 defines a "spontaneous" event as one "occasioned by news or affairs coming into public knowledge within five (5) days" of the event. See LBMC § 5.60.030(A)(5). A "spontaneous" event does not require a formal permit, but it does require twenty-four hours advance notice to the City. The City Manager may refuse permission to hold such an event, and may impose "reasonable time, place and manner restrictions." See LBMC § 5.60.030(B). An initial email from Ruyle to the City, sent two weeks earlier, had indicated that the Peace Network planned to ask for the closure of at least one lane of traffic for the march and to reserve a bandshell in Bixby Park for the rally. In his email, Ruyle estimated that the March event would be "at least twice as big" as the February march and rally.

In a letter addressed to Ruyle dated March 21, the City granted permission to conduct a march and rally on March 22. In the letter, the City imposed a number of conditions, including the route of the march and the location of the rally. The letter contained a summary of estimated departmental services charges for "Police," "Public Works," "Park, Recreation & Marine (Park Staff)," "Parks, Recreation & Marine Maintenance," "Space Permit Fee," and "Junipero Parking Lot." The total estimated charges were $7,041. The letter set forth a schedule of payment in four equal installments during the next year. Ruyle and other members of the Peace Network signed the last page of the letter under a heading reading "Conditions Accepted." As signed, this page contained a handwritten notation at the top, stating that the "signers reserve[d] the right to challenge the total," but that they would pay the first of the four installments on March 22. Ruyle paid the first installment on March 22, in accordance with the hand-written notation.

The march on March 22 took slightly more than one hour, and the event concluded with an anti-war rally at Bixby Park. The district court found that approximately 1,000 people participated in the March event. According to Ruyle's declaration, in contrast to the pre-war rally at the park in February, no elected officials participated in the March anti-war rally.

As part of the March event, members of the Surfrider Foundation placed surfboards on the beach in the shape of a peace symbol. The display was visible to participants of the march as they walked near the beach. The display took place entirely on the beach, did not interfere with any vehicular or pedestrian traffic, and did not result in any damage to the beach. Following the event, the surfboards were removed from the beach.

In his initial email, Ruyle had stated that Peace Network planned to request a waiver of insurance and departmental services charges. In its March 21 letter granting the permit, the City waived the insurance requirement but did not waive event-related charges. As he had done after the February march and rally, Ruyle wrote a letter to the City after the March event asking for a waiver of charges. Ruyle states in his declaration that a city official gave "no other guidelines than simply to write the letter" to ask for a waiver. The only material differences between Ruyle's requests for waivers of charges for the February and March events were descriptions of event-specific matters such as the march routes.

The City did not waive the departmental services charges for the March event. In April 2003, the City sent a letter to the Peace Network members whose signatures (or, in the case of Diana Mann, whose name had been signed by someone else) appeared at the bottom of the March 21 letter. The letter requested payment of $7,041, in the installments specified in the March letter. The total amount was exactly the same as the estimate contained in that letter. Part of the total included a charge of $1,500 for the use of the beach for the surfboard display. The City's April letter noted that the first check, which Ruyle had given to the City on March 22, had been misplaced. The letter asked that payment on that check be stopped...