Seattle Affiliate of Oct. 22ND v. City of Seattle

• Decision Date: 13 March 2006
• Docket Number: No. C04-0860L.,C04-0860L.
• Court: U.S. District Court — Western District of Washington
• Parties: THE SEATTLE AFFILIATE OF THE OCTOBER 22ND COALITION TO STOP POLICE BRUTALITY, REPRESSION AND THE CRIMINALIZATION OF A GENERATION, Plaintiff, v. CITY OF SEATTLE, et al., Defendants.

430 F.Supp.2d 1185

THE SEATTLE AFFILIATE OF THE OCTOBER 22ND COALITION TO STOP POLICE BRUTALITY, REPRESSION AND THE CRIMINALIZATION OF A GENERATION, Plaintiff, v. CITY OF SEATTLE, et al., Defendants.

No. C04-0860L.

United States District Court, W.D. Washington, At Seattle.

March 13, 2006.

Order Denying Reconsideration April 20, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Aaron H. Caplan, American Civil Liberties Union of Washington, Christopher Theodore Varas, Michael K. Ryan, Karl Justin Quackenbush, Ryan Drew Redekopp, Preston Gates & Ellis, Seattle, WA, for Plaintiff.

Carlton Wm Seu, Seattle City Attorney's Office, Stephen Powell Larson, Stafford Frey Cooper, Seattle, WA, for Defendants.

ORDER REGARDING CROSS— MOTIONS FOR SUMMARY JUDGMENT

LASNIK, District Judge.

This matter comes before the Court on "Plaintiff's Motion for Partial Summary Judgment" (Dkt.# 17) and "Defendants' Motion for Summary Judgment on the Merits" (Dkt.# 20). Plaintiff seeks a summary determination that Seattle Municipal Code Chapter 11.25 (hereinafter "the Parade Ordinance") is unconstitutional on its face under the First Amendment of the United States Constitution and Article 1, section 5 of the Washington State Constitution insofar as it grants City law enforcement officers unbridled discretion to restrain speech. Defendants have filed a cross-motion for summary judgment on the constitutionality of the Parade Ordinance, both on its face and as applied, and also seek dismissal of certain claims as duplicative, barred by the doctrine of qualified immunity, and/or unsupported by the facts.¹

Summary judgment is appropriate where admissible evidence, read in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact that would preclude entry of judgment in favor of the moving party. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.2003). The parties agree that the relevant facts of this case are not in dispute. Marches and parades in the City of Seattle are governed by the Parade Ordinance, SMC § 11.25.020, which states in pertinent part:

No person shall conduct or participate in a parade upon any street or alley in the City without first submitting a written notification to the Chief of Police and obtaining a permit from the Chief of Police to do so. Upon written notification to the Chief of Police, the Chief of Police shall grant a permit. So that preparations for traffic regulation can be made, the written notification for permit shall state the place and hour of formation, the proposed line of movement or march, the scheduled starting time, and the names of the persons having charge or control of the parade, and the name of the sponsoring agency, if any.... The Chief of Police may modify the place and hour of formation, the proposed line of movement or march, and the scheduled starting time in the interest of vehicular or pedestrian traffic safety.

Plaintiff filed the necessary written notification and was granted a permit to march through the City streets on October 22, 2003. The permit did not specify a minimum number of participants although the parade organizer, Daniel DiLeva, had stated in the permit application that between 100 and 400 people would take part.

On October 22, 2003, approximately 75-100 individuals gathered for the parade. The march was scheduled to occur during rush hour and, as the participants were organizing themselves, it was rainy and getting dark. After discussing the matter with defendant Paulsen, the commander of the motorcycle unit, defendant Sano advised the marchers that their permit was "rescinded" because they did not have enough people to march in the street. The participants were directed to march on the sidewalk and a police escort was provided to assist them across intersections.²

I. Facial Challenge Under the First Amendment

The Parade Ordinance is a prior restraint on speech under federal law because it requires a permit before authorizing speech in one of the most public of places, our streets. Forsyth County v. The Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). Streets have "immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). A citizen's right to use public streets and parks is not absolute, however.

Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need.... As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.

Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049 (1941).

Should a municipality decide to impose a permit requirement on those wishing to march in its streets, such ordinances must meet certain First Amendment requirements: they must not be based on the content of the message, they must be narrowly tailored to serve a significant governmental interest, and they must leave ample alternatives for communication. In addition, the permit scheme "may not delegate overly broad licensing discretion to a government official." Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395. Plaintiff argues that the Parade Ordinance is unconstitutional because it does not provide adequate standards for the Chief of Police (or his delegates) to apply when determining whether to grant a permit or to impose conditions on the use of the streets.

On its face, SMC § 11.25.020 does not authorize the administrator to deny a permit. The Chief of Police is required to grant a permit upon receipt of an application that satisfies the requirements of the Parade Ordinance. As written, therefore, the ordinance confers no discretion, much less overly broad discretion, regarding the issuance of a permit. With regards to the terms and conditions, if any, imposed on a march, the ordinance contemplates instances in which the administrator will grant a permit that does not precisely match the applicant's request. The Parade Ordinance is fairly specific, however, regarding the nature of the changes that can be made and the reasons for which such alterations can be imposed. As set forth in the ordinance, "[t]he Chief of Police may modify the place and hour of formation, the proposed line of movement or march, and the scheduled starting time in the interest of vehicular or pedestrian traffic safety." SMC § 11.25.020.

Unlike the regulation evaluated by the Supreme Court in Shuttlesworth, nebulous and ill-defined concepts such as "public welfare," "decency," and "morals" are not the touchstone of the analysis under the Parade Ordinance. 394 U.S. at 150, 89 S.Ct. 935. Rather, the Chief of Police is to consider only two criteria, vehicular traffic safety and pedestrian traffic safety, when determining whether to modify a permit application. The Supreme Court's decision in Shuttlesworth suggests that criteria of this nature, which are clearly related to the proper regulation of our streets and are within the special knowledge of law enforcement officers, are exactly the type of considerations that would pass constitutional muster. 394 U.S. at 153, 89 S.Ct. 935 (ordinance unconstitutional where the administrator was given "extensive authority to issue or refuse to issue parade permits on the basis of broad criteria entirely unrelated to legitimate municipal regulation of the public streets and sidewalks."). See also Niemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 328, 95 L.Ed. 280 (1951) (Frankfurter, J. concurring) ("A licensing standard which gives an official authority to censor the content of a speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety and the like."); New England Regional Council of Carpenters v. Kinton, 284 F.3d 9, 25-26 (1st Cir.2002) (public safety is a legitimate consideration when issuing parade permits and, because such considerations fall within the competence of the constabulary, the decision makers will not be called upon to "make judgments on matters beyond their competence.").

Such is the case here. The Chief of Police is required to make his permit decisions based on specific grounds about which law enforcement officers have special expertise. Considerations of vehicular and pedestrian traffic safety are within the administrator's competence, provide "narrowly drawn, reasonable and definite standards" to guide the administrator's determination, and are enforceable on review. See, e.g., Thomas v. Chicago Park Dist., 534 U.S. 316, 324, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) (ordinance authorizing rejection of permit based on concerns regarding "the health or safety of park users or Park District employees" does not leave the decision to the whim of the administrator, is narrowly drawn, and provides standard for review).

The fact...