Porter v. Gore

• Decision Date: 14 December 2018
• Docket Number: Case No.: 18-cv-1221-GPC-JMA
• Parties: Susan PORTER, Plaintiff, v. William D. GORE, Sheriff of San Diego County, in His Official Capacity; Warren Stanley, Commissioner of California Highway Patrol, in His Official Capacity, Defendants.
• Court: U.S. District Court — Southern District of California

354 F.Supp.3d 1162

Susan PORTER, Plaintiff,

v.William D. GORE, Sheriff of San Diego County, in His Official Capacity; Warren Stanley, Commissioner of California Highway Patrol, in His Official Capacity, Defendants.

Case No.: 18-cv-1221-GPC-JMA

United States District Court, S.D. California.

Signed December 14, 2018

Mikle S. Jew, Foley & Fardner LLP, John David Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA, for Plaintiff.

Timothy M. White, Office of County Counsel, San Diego, CA, Sharon L. O'Grady, California Department of Justice, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

[ECF No. 12.]

Hon. Gonzalo P. Curiel, United States District Judge

When a protestor sounds her car horn at a political rally, does she engage in constitutionally-protected speech, or does she properly put herself in the crosshairs of California Vehicle Code § 27001, the so-called "horn ordinance?" The question is a difficult one, but an answer is demanded by the complaint filed by Plaintiff Susan Gore ("Plaintiff") in the matter at hand. (ECF No. 1.)

On August 13, 2018, one of the two defendants in the complaint, Warren Stanley, the Commissioner of California Highway Patrol, filed a motion to dismiss the complaint. (ECF No. 12.) Shortly thereafter, the other defendant, William D. Gore, the Sheriff of San Diego County, moved to join in the motion. (ECF No. 13.) Plaintiff submitted a response in opposition on October 16, 2018 (ECF No. 17), and Commissioner Stanley filed a reply on November 9, 2018 (ECF No. 19), which was also joined by Sheriff Gore (ECF No. 20).

On December 14, 2018, the Court held a hearing on the matter pursuant to the Chamber's young lawyer rule.¹ After consideration of the moving papers, oral arguments, and the applicable law, the Court will grant in part and deny in part the motion to dismiss.

I. Factual Background

A. California's Horn Ordinance

Since 1905, California has required the installation of a horn or other audible signal device on motor vehicles as necessary safety equipment. 1905 Cal. Stat. 819, ch. DCXII, § 4(2).² In 1913, the State introduced its first limitation on the use of car horns, which mandated that "No ... person shall sound [the vehicle's] bell, gong, horn, whistle, or other device for any purpose except as a warning of danger." 1913 Cal. Stat. 645, ch. 326, § 12. The modern incarnate of these early statutes inheres in California Vehicle Code sections 27000 and 27001, the former of which provides:

A motor vehicle, when operated upon a highway³ , shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than 200 feet, but no horn shall emit an unreasonably loud or harsh sound.

CAL. VEH. CODE § 27000(a). Section 270001, in turn, provides as follows:

(a) The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn.

(b) The horn shall not otherwise be used, except as a theft alarm system which operates as specified in Article 13 (commencing with Section 28085) of this chapter.

CAL. VEH. CODE § 27001. Reading the two provisions of the Vehicle Code together, it is apparent that California "restricts the use of a horn to occasions when it is necessary for safe operation or as a theft alarm." Garcia v. N.L.R.B. , 785 F.2d 807, 808 n.1 (9th Cir. 1986) Further, "[t]he California Attorney General has indicated that § 27001 is a "vehicular noise law." Holcomb v. Ramar , No. 1:13-CV-1102 AWI SKO, 2015 WL 6437433, at *6 (E.D. Cal. Oct. 21, 2015) (citing 55 Ops. Cal. Atty. Gen. 178, 181 n.11 (1972) ).

Both Sheriff Gore and Commissioner Stanley have the authority to enforce section 27001. Sheriff Gore is responsible for traffic laws in the unincorporated areas of San Diego County and several nearby cities; Commissioner Stanley's enforcement of the traffic laws extends throughout the state. CAL. PENAL CODE § 830.2.

B. Plaintiff's Involvement at the Congressman Issa Protests

Plaintiff lives in Oceanside, California, and has participated in weekly protests at the district office of Congressman Darrell Issa in Vista, California. Those protests regularly occurred on Tuesdays from 10 to 11 a.m., beginning after the November 2016 election and concluding in April 2018, at the office building at 1800 Thibodo Road, Vista, California, 92081, where Representative Issa maintained his Vista office. The office building has no adjacent neighbors, faces a "main arterial road," and is flanked in the back by California Route 78, a six-lane freeway. (ECF No. 1, at 3.) Across the road from the building is "a wooded slope with houses at the top." (Id. ).

By Plaintiff's account, the Issa protests regularly "generated noise from both opponents and supporters of Representative Issa." (ECF No. 1, at 2.) Indeed, during these protests, Plaintiff observed that "a supporter of the Representative often employed a sound system with loud speakers across the street from the office." (Id. at 3.) In addition, "drivers often sounded their vehicle horns in support of the protest." (Id. )

Plaintiff arrived at the weekly Issa protest on October 17, 2017 by car and parked it nearby while she participated. During the protest, a number of deputy sheriffs arrived on the scene and "issued citations to various individuals." (Id. at 4.)⁴ At that time, Ms. Porter moved her car, and in doing so, drove past the protest and sounded her vehicle horn once to express her support of the protest. (Id. ) As a result, Plaintiff was directed by Sheriff's Deputy Klein to pull over. (Id. ) At that time, Deputy Klein issued her a citation for allegedly violating section 27001.

The citation had an appearance date of December 12, 2017, which Plaintiff attended. A hearing to contest the citation was scheduled for February 5, 2018, but when Deputy Klein did not appear, the citation was dismissed. (Id. at 5.) After Plaintiff dispatched a letter, on November 9, 2017, to Sheriff Gore asking him to "refrain from enforcing section 27001 against protected speech," Sheriff Gore's chief legal advisor advised on November 29, 2017 that "Ms. Gore's citation was not issued as a content-based regulation of speech but rather as a straight forward violation of the Vehicle Code." (Id. at 6.)

Although the citation was dismissed, Plaintiff continues to harbor a fear that section 27001 will be enforced against her. In that respect, her complaint states that she regularly drives her vehicle in areas of San Diego County where the Sheriff's Department and California Highway Patrol provide traffic enforcement, and that she is "censoring herself from using her vehicle horn by refraining from using her vehicle for expressive purposes, ... to express[ ] support for political protests, rallies, or demonstrations" within that area. (Id. at 5–6.)

C. Plaintiff's Complaint for Declaratory and Injunctive Relief

Plaintiff commenced her suit on June 11, 2018, alleging a 42 U.S.C. § 1983 claim under the First Amendment against both defendants, and a violation of Article I, § 2 of the California Constitution (pertaining to freedom of expression) against Sheriff Gore only.

Plaintiff contends that, on its face, or as applied, section 27001 imposes an overbroad restriction on her right to expression and constitutes a content-based restriction subject to strict scrutiny. In the alternative, if intermediate scrutiny is to apply, she asserts that section 27001 is insufficiently narrowly-tailored. Plaintiff seeks both declaratory and injunctive relief, urging the Court to declare section 27001 unconstitutional as applied to protected expression and to enjoin both Defendants from enforcing the statute.

D. Defendants' Motion to Dismiss

Defendants move for dismissal on a number of defenses. As an initial matter, they dispute that horn honking is protected under the First Amendment. Even assuming it is protected, Defendants contend that section 27001 is a content-neutral restriction on expressive conduct that must be analyzed under intermediate, not strict scrutiny. On this point, Defendants posit that section 27001 is a valid time, place, manner restriction that serves important state interests in noise reduction, prevention of driver distraction, and the preservation of the efficacy of the horn as a warning device. They assert that no cry of overbreadth may sound when a regulation is a valid time, place, and manner restriction, and that Plaintiff's overbreadth challenge fails as a result. In the alternative, Defendants claim that the horn ordinance passes Constitutional muster as a permissible restriction on speech in a limited public forum. Finally, defendants dispute that Plaintiff's as-applied challenge is ripe for adjudication, and insist that the Eleventh Amendment bars Plaintiff's assertions under the California constitution.

II. Rule 12(b)(6) standard

"To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In this respect, "[d]ismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp Med. Ctr. , 521 F.3d 1097, 1104 (9th Cir. 2008).

While "detailed factual allegations" are unnecessary, the complaint must allege more than "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S....