Roulette v. City of Seattle

• Decision Date: 10 March 1994
• Docket Number: No. C93-1554R.,C93-1554R.
• Citation: 850 F. Supp. 1442
• Court: U.S. District Court — Western District of Washington
• Parties: Megan S. ROULETTE; Seattle-King County Coalition for the Homeless; Operation Homestead; Seattle Housing Action Resource Effort; Seattle Displacement Coalition; Brian Wojcik; Reginald E. Pygum; Jules H. Richard; Larry Gill; Joyce Quill; Leslie Soderberg; Jesse Petrich; Seattle Chapter, National Organization for Women; Freedom Socialist Party; Jonny Hahn; Seattle Women Act For Peace; Fellowship of Reconciliation, Seattle Chapter, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF SEATTLE, a municipal corporation; Norman B. Rice, Mayor of the City of Seattle; and Patrick S. Fitzsimmons, Chief of Police for the City of Seattle, Defendants.

850 F. Supp. 1442

Megan S. ROULETTE; Seattle-King County Coalition for the Homeless; Operation Homestead; Seattle Housing Action Resource Effort; Seattle Displacement Coalition; Brian Wojcik; Reginald E. Pygum; Jules H. Richard; Larry Gill; Joyce Quill; Leslie Soderberg; Jesse Petrich; Seattle Chapter, National Organization for Women; Freedom Socialist Party; Jonny Hahn; Seattle Women Act For Peace; Fellowship of Reconciliation, Seattle Chapter, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF SEATTLE, a municipal corporation; Norman B. Rice, Mayor of the City of Seattle; and Patrick S. Fitzsimmons, Chief of Police for the City of Seattle, Defendants.

No. C93-1554R.

United States District Court, W.D. Washington.

March 10, 1994.

David B. Girard, Evergreen Legal Services, Robert Dana Adelman, Seattle, WA, for Megan Roulette, Operation Homestead, Seattle Housing Action Resource Effort, Seattle Displacement Coalition, Seattle King County Coalition for the Homeless, Brian Wojcik, Reginald E. Pygum, Jules H. Richard, Larry Gill, Joyce Quill, Leslie Soderberg.

Beth Marie Andrus, Miller, Nash, Wiener, Hager & Carlsen, Seattle, WA, for Jesse

Petrich, Seattle Women Act for Peace, Fellowship of Reconciliation, Seattle Chapter, National Organization for Women, Seattle Chapter.

David Zuckerman, Seattle, WA, for Freedom Socialist Party, Jonny Hahn.

Sandra L. Cohen, Gary E. Keese, Seattle City Atty's. Office, Seattle, WA, for city of Seattle, Norman Rice, Patrick S. Fitzsimons.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT

ROTHSTEIN, Chief Judge.

I. INTRODUCTION

Plaintiffs in this case are a diverse group composed of homeless people, individuals and organizations providing services to and advocating for the homeless, political, social and community organizations in Seattle, a registrar of voters, and a street musician. This coalition joined forces to challenge the constitutionality of two ordinances recently enacted by the Seattle City Council. Defendants include the City of Seattle, the mayor of Seattle, Norman B. Rice, and the former Seattle police chief, Patrick S. Fitzsimmons (hereafter collectively referred to as "the City").

The challenged ordinances are SMC §§ 15.48.040-050, which prohibits sitting or lying on public sidewalks in commercial areas during certain hours (hereafter "the sidewalk ordinance"), and SMC § 12A.12.015, as amended, which prohibits "aggressive begging." Plaintiffs now move for summary judgment declaring both ordinances unconstitutional; the City has responded with a cross-motion for summary judgment on the constitutional validity of both ordinances.

The issues raised by these cross-motions highlight the compelling concerns motivating both the supporters and the opponents of these ordinances. By enacting this legislation, the City was attempting to protect the safety and welfare of its citizens. On the other hand, plaintiffs' constitutional claims raise important questions about whether the City's legislative efforts tread upon fundamental rights. Therefore, great caution is necessary; efforts to address legitimate local concerns must be carefully confined so as not to unconstitutionally encroach on individual rights. Whether the City's legislation is properly within constitutional confines depends on the language of the particular ordinance. The court concludes that, subject to the limitations set forth below, the ordinances in question are constitutional.

II. THE SIDEWALK ORDINANCE

A. Background

Subject to limited exceptions, SMC §§ 15.48.040-.050, hereafter referred to as the sidewalk ordinance, prohibits a person who has received notice of violation from sitting or lying on a public sidewalk or on any object placed on a public sidewalk between 7 a.m. and 9 p.m. in downtown Seattle and Seattle neighborhood commercial areas.¹ Violation of this ordinance exposes the offender to a civil penalty of either a $50 fine or performance of community service. Refusal or failure to sign a notice of civil infraction or to respond to the notice constitutes a misdemeanor.² Exceptions to the prohibition against sitting on the sidewalk include circumstances involving medical emergencies; wheelchairs; sidewalk cafes, parades, rallies, demonstrations, performances or meetings for which street use permits have been issued; chairs or benches supplied by a public agency or abutting private property owner; and seats in bus zones occupied by people waiting for the bus.³

According to the statement of legislative intent adopted by the Public Safety Committee of the Seattle City Council which drafted the ordinance, the purpose of the ordinance was to facilitate the safe and efficient movement of pedestrians and goods on the public sidewalks of commercial areas. More specifically, the Seattle City Council's stated purposes underlying the ordinance were to eliminate the public safety hazard created by individuals sitting or lying on the sidewalks, and to protect the economic health and productivity of commercial areas. Declaration of Peter Clarke in Support of Defendant City of Seattle's Response to Plaintiff's Motion for Summary Judgment and City's Cross-Motion for Summary Judgment, Ex. C.⁴

Plaintiffs filed suit under 42 U.S.C. § 1983 challenging the constitutionality of the sidewalk ordinance on its face for denial of procedural and substantive due process, violation of the right to travel, violation of First Amendment rights to free expression, and denial of equal protection. The court will address each of plaintiffs' claims in turn.

B. Legal Analysis

1. Violation of Procedural Due Process Through Vagueness

In order to satisfy the Fourteenth Amendment guarantee of procedural due process, an ordinance must set forth clear legal standards so that citizens may know how to conduct themselves in conformity with the law, and law enforcement personnel may avoid enforcing the law in an arbitrary and discriminatory manner. Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). Plaintiffs argue that the sidewalk ordinance meets neither prong of the test, and that it is, therefore, on its face unconstitutionally vague.

a. Notice to Law Enforcement

Regarding the failure to establish minimum guidelines for law enforcement personnel, plaintiffs argue that the sidewalk ordinance gives police unfettered discretion as to when to tell someone sitting on the sidewalk to move on. They point to the language of the ordinance which provides that "no person, after having been notified by a law enforcement officer that he or she is in violation of the prohibitions in this section, shall sit or lie down upon a public sidewalk...." § 15.48.040 (emphasis supplied). Plaintiffs insist that pursuant to this language, lawful activity becomes a violation only when the police decide in their unbridled discretion to give notice of violation, but that the ordinance provides no standards for the exercise of that discretion.

Plaintiffs seek to draw an analogy between the sidewalk ordinance and statutes which were stricken down on procedural due grounds in cases like Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); and Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). In Shuttlesworth, for example, petitioner had been charged with violating Birmingham city ordinances making it "unlawful for any person to stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on." Noting that "literally read, ... this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer," the United States Supreme Court concluded that "the constitutional vice of so broad a provision needs no demonstration." 382 U.S. at 90, 86 S.Ct. at 213. However, the Court upheld the ordinance with a limiting construction that the accused had to be intentionally obstructing free passage.

In Papachristou, the United States Supreme Court struck down a vagrancy ordinance because there were "no standards governing the exercise of the discretion granted by the ordinance," thus "permitting and encouraging an arbitrary and discriminatory enforcement of the law." 405 U.S. at 170, 92 S.Ct. at 847. See also, Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (statute forbidding congregation within 500 feet of foreign embassy and refusal to disperse upon police order upheld as constitutional by adopting limiting construction that police had to reasonably believe the existence of a threat to the security or peace of the embassy); Seattle v. Webster, 115 Wash.2d 635, 642-44, 802 P.2d 1333 (1990) (City of Seattle pedestrian interference ordinance held lawful because it provided citizens, police officers and courts with sufficient guidelines to prevent arbitrary enforcement); Seattle v. Drew, 70 Wash.2d 405, 406, 423 P.2d 522 (1967) (Seattle loitering ordinance making it a crime to be "wandering or loitering abroad," to be "abroad under other suspicious circumstances," and to "fail to give a satisfactory account of himself upon the demand of any police officer" held invalid for vagueness).

The court rejects plaintiffs' vagueness argument. Unlike the language of the ordinances and statutes found unconstitutional in the cases outlined above, the sidewalk ordinance very clearly describes the proscribed behavior, i.e., sitting or lying down on the sidewalk in commercial districts between 7 a.m. and 9 p.m. except under certain specifically stated exceptions. Thus, unlike the laws considered in Shuttlesworth, Papachristou and similar cases, the ordinance does not leave police officers with unfettered discretion, and in fact gives them precise direction about what conduct is forbidden.

Plaintiffs' criticism focuses on the notification portion of the...