Porter v. Gore

• Citation: 517 F.Supp.3d 1109
• Decision Date: 05 February 2021
• Docket Number: Case No.: 18-cv-1221-GPC-LL
• Court: U.S. District Court — Southern District of California
• Parties: Susan PORTER, Plaintiff, v. William D. GORE, Sheriff of San Diego County, in his official capacity; and Warren Stanley, Commissioner of California Highway Patrol, in his official capacity, Defendants.

517 F.Supp.3d 1109

Susan PORTER, Plaintiff,

v.William D. GORE, Sheriff of San Diego County, in his official capacity; and Warren Stanley, Commissioner of California Highway Patrol, in his official capacity, Defendants.

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

United States District Court, S.D. California.

Signed February 5, 2021

Mikle S. Jew, Kadmiel Elias Perez, Foley & Lardner LLP, John David Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA, Matthew J. Stockl, Foley & Lardner LLP, Los Angeles, CA, for Plaintiff.

Timothy M. White, Office of County Counsel, San Diego, CA, for Defendant William D. Gore.

Natasha Saggar Sheth, State of California Office of the Attorney General, Sharon L. O'Grady, California Department of Justice, San Francisco, CA, for Defendant Warren Stanley.

JUDGMENT AND ORDER:

1. DENYING PLAINTIFF'S MOTION TO EXCLUDE DEFENDANTS’ EXPERT OPINIONS;

2. GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT; AND

3. DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

[ECF Nos. 65–68]

Gonzalo P. Curiel, United States District Judge California has regulated the use of automobile horns since 1913 and its restrictions have remained substantially unchanged since 1931. The current version of the statute, California Vehicle Code Section 27001 (" Section 27001"), is nearly identical to the one that is part of the Uniform Vehicle Code. (ECF No. 75-1 at 2.¹ ) Plaintiff Susan Porter challenges Section 27001 as a law that violates her First Amendment rights by preventing or deterring her from using her horn to express her approval at a public demonstration. Based upon its review of the facts and application of the law, the Court concludes that Section 27001 passes intermediate scrutiny and is an appropriate regulation on the time, place, or manner of the protected speech and expression.

Before the Court are motions for summary judgment ("MSJs") filed by Defendant Warren Stanley, Plaintiff Susan Porter, and Defendant William D. Gore, and the corresponding response and reply briefs. (ECF Nos. 66–68, 74–76, 80, 83, 84.) Plaintiff also filed a Motion to Exclude Defendants’ Expert Opinions. (ECF No. 65.) For the reasons detailed below, the Court DENIES Plaintiff's Motion to Exclude Defendants’ Expert Opinions, GRANTS Defendants’ Motions for Summary Judgment, (ECF Nos. 66, 68,) and DENIES Plaintiff's Motion for Summary Judgment, (ECF No. 67.)

I. BACKGROUND

A. Factual Background

1. California Vehicle Code Section 27001

For purposes of this lawsuit, the relevant parts of the state's regulation on honking are found in California Vehicle Code Sections 27000 and 27001.

California Vehicle Code Section 27000 states, in part: "A motor vehicle ... 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).

At issue here is California Vehicle Code Section 27001 which 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." Id. § 27001.

Both the California Highway Patrol ("CHP") and the San Diego County Sheriff's Department have the authority to enforce Section 27001. Whether to enforce a particular violation and what enforcement action to take is a matter within the officer's discretion. (ECF No. 67-18 at 5; ECF No. 75-1 at 9–10.)

2. The Protest and Plaintiff's Citation

Following the November 2016 election through April 2018, weekly protests were held each Tuesday, starting at 9 or 10 a.m. and ending around 11 a.m., in front of then-Representative Darryl Issa's ("Representative Issa") district office at 1800 Thibodo Road, Vista, California. (ECF No. 75-1 at 37.) Initially, the San Diego County Sheriff's Department did not have a full-time presence at the protests but would respond to the area if called. However, as the group of protestors began to increase in size and issues arose among the protestors, counter-protestors, and other people in the area, Lieutenant Michael Munsey ("Lieutenant Munsey") was assigned to be on site each week as the Department's liaison with the groups and to keep the peace. (Id. at 38.) There is no evidence that any CHP officer was present at any of the protests against Representative Issa. (Id. at 6.)

A few weeks before the subject October 17, 2017 protest date, the Captain of the Vista Patrol Station (part of the San Diego County Sheriff's Department) attended a meeting of a homeowner's association held in a neighborhood close to Representative Issa's office. (Id. at 38–39.) At the meeting, the homeowners complained about parking, traffic issues, and noise arising from the protests. (Id. )

Plaintiff, Ms. Susan Porter, had regularly participated in these weekly protests since her retirement in July 2017. (Id. at 38.) Specifically, she attended the weekly protest on October 17, 2017. (Id. at 39.)

That day, Lieutenant Munsey corresponded with the San Diego County Sheriff's Department regarding the size of the protest groups, various parking and traffic issues (in which Lieutenant Munsey stated the traffic situation was "a bit more chaotic that day than usual"), and whether the enforcement posture should remain the same. (Id. at 40; ECF No. 68-3 at 3.) At some time in the morning of October 17, 2017, he radioed for the traffic deputy on duty to come assist with enforcement of the traffic laws, and Deputy Kyle Klein ("Deputy Klein") from the Vista Patrol Station responded and arrived in the area. (ECF No. 75-1 at 40.) Deputy Klein was wearing his department-issued body-worn camera while he was at the protest area. (Id. at 41.)

Deputy Klein issued multiple citations that day for parking violations. For example, he issued a citation to the owner of a motorcycle parked across the street from Representative Issa's office wearing a "Make America Great Again" ball cap and a shirt bearing a patch reading "Trump Motorcycle Guy," and holding up a "Trump" sign. (Id. at 41, 43.)

At some point during the protest on October 17, 2017, Plaintiff decided to move her vehicle to another parking area because she feared receiving a ticket for parking near a fire hydrant. As she was driving to another location and past the protesters, she honked her horn 11–15 times in a row. (Id. at 44.) Deputy Klein's body-worn camera shows Plaintiff honking her horn 14 times. (Id. at 5.) Afterwards, she was pulled over by Deputy Klein. (ECF No. 74-1 at 8.) Deputy Klein explained that he pulled her over for sounding her horn in violation of Section 27001. (Id. ; ECF No. 75-1 at 45.) In response, Plaintiff stated to Deputy Klein that "lots of people use their horns to support the protestors." (ECF No. 68-4 at 3–4.)

As Deputy Klein was writing the citation, Lieutenant Munsey approached and asked what the nature of the citation was. When Lieutenant Munsey learned that it was for the unlawful use of the vehicle horn, Lieutenant Munsey stated: "Oh, illegally honking the horn? If you want to, um, because everybody does it, if you feel like it and don't have any cites, warn them, if you don't write them, it's up to you. Whatever you choose to do, it's your choice and I'll back your play." (ECF No. 74-1 at 8–9; ECF No. 75-1 at 46.) Deputy Klein issued the citation to Plaintiff. (ECF No. 75-1 at 46.)

The issued citation listed a traffic court hearing date of December 12, 2017. On that date, Plaintiff appeared in court to contest it, but the citation was dismissed by the court when Deputy Klein did not appear for the hearing. (Id. at 48.)

3. Follow-Up with the San Diego County Sheriff's Department

Plaintiff's counsel sent a letter, dated November 9, 2017, to the San Diego County District Attorney and the San Diego County Sheriff's Department. (ECF No. 67-14.) In the letter, Plaintiff's counsel stated that he is "seeking assurance that section 27001 will not be enforced against individuals engaging in protected speech," and "asking the Sheriff to refrain from enforcing section 27001 against protected speech or confirm if section 27001 will continue to be enforced as it was against Ms. Porter." (Id. at 2, 4.)

Through counsel, the San Diego County Sheriff's Department sent a letter in response, dated November 29, 2017. (ECF No. 67-15.) The response letter stated that "Ms. Porter's citation was not issued as a content-based regulation of speech, but rather a straight forward violation of the Vehicle Code," and that "[w]hether or not [Plaintiff's] legal theory is valid or not is something that is best left for a court to decide." (Id. )

B. Procedural History

1. Complaint and Motion to Dismiss

On June 11, 2018, Plaintiff filed the Complaint, alleging in part a 42 U.S.C. § 1983 claim under the First Amendment against both Defendants. (ECF No. 1.) Plaintiff sued Defendant Warren Stanley in his official capacity as Commissioner of the California Highway Patrol ("Defendant CHP") and Defendant William D. Gore in his official capacity as Sheriff of San Diego County ("Defendant Sheriff Gore").²

The Complaint alleges that on its face or as applied, Section 27001 violates the First Amendment for several reasons. First, Section 27001 constitutes an overbroad restriction on the use of a vehicle horn for speech or expression. Second, Section 27001 constitutes a content-based restriction that is not narrowly tailored to a compelling government interest. And third, even if Section 27001 is considered content-neutral, it burdens substantially more speech or expression than necessary to protect legitimate government interests. Plaintiff seeks both declaratory and injunctive relief, requesting the Court to declare that the enforcement of Section 27001 "against protected expression" is unlawful and to enjoin both Defendants from enforcing the statute "against...