Sullivan v. City of Augusta, No. CV-04-32-B-W.
| Decision Date | 22 December 2005 |
| Docket Number | No. CV-04-32-B-W. |
| Parties | Timothy SULLIVAN et al. Plaintiffs, v. CITY OF AUGUSTA, Defendant. |
| Court | U.S. District Court — District of Maine |
Lynne A. Williams, Law Office of Lynne A. Williams, Glen Cove, ME, Zachary L. Heiden, Maine Civil Liberties Union, Portland, David G. Webbert, Johnson & Webbert, LLP, Augusta, ME, for Timothy Sullivan, Lawrence E. Dansinger, Plaintiffs.
Michael Kaplan, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Sigmund D. Schutz, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, Stephen E.F. Langsdorf, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Augusta, ME, for City of Augusta, Defendant.
ORDER ON MOTIONS FOR JUDGMENT ON LIABILITY
To march is to speak. A parade, as speech, especially as political speech, invokes the First Amendment and commands this Court's protection. A march can be a powerful and effective community expression of ethos: to celebrate our heroes — as on Veterans' Day; to applaud our commonly-held values — as on July 4th; or, consistent with this Country's longest-held traditions, to protest our policies and attempt to effect change — as in Selma or Washington, D.C. Because the right to march lies at the core of our freedoms, this Court concludes Maine's capital city of Augusta may regulate parades only at the edges. It strikes down municipal regulations based on content or viewpoint discrimination and leaves standing those that are wholly neutral.
This case marches on. On March 15, 2004, Timothy Sullivan sought a temporary restraining order against the city of Augusta's parade ordinance, claiming its provisions violated the First Amendment rights of the March for Truth Coalition. The Coalition wished to parade on the streets of Maine's capital city to advocate for a host of causes, both political and economic. This Court granted Mr. Sullivan's motion for temporary restraining order only as to the city's bond requirement, leaving the remainder of the ordinance intact. The Plaintiffs have regrouped and reformed, adding a party, a lawyer, and additional evidence raising new issues. This time they have sustained their burden and this Court grants judgment in their favor.
The relevant portions of the Parade Ordinance, § 13-5, provide:
(a) No less than thirty (30) days prior to an intended parade, march or other use of public ways within the city, a permit must be applied therefor to the City Police Chief or his designee. The City Manager may allow a shorter time frame for good cause shown.
. . . . .
(c) Within ten (10) days of applying for the permit, as a condition to its issuance, the applicant must meet with the Police Chief to discuss and attempt to agree on the details of the route and other logistics.
(d) The Police Chief may deny the permit or alter the route for traffic or safety reasons and impose reasonable conditions including, but not limited to, time limits, requirement to keep moving and on route, no amplification or sound truck, no explosives, fireworks or other artificial noise.
(e) The cost of the permit shall be one hundred dollars ($100.00), plus the costs of traffic control per city collective bargaining agreement and clean up costs, as estimated by the Police Department. The permit fee will not include the cost of police protection for public safety. The one hundred dollar ($100.00) fee is payable at the time the application is submitted and the balance at the time of its issuance. The City Council may modify this fee from time to time by Order.
(Code 1970 § 15-6; Ord. No. 244, 1-6-92; Ord. No. 106, 9-8-03; Ord. No. 54, 4-5-04)(Docket # 50 — Ex. 2). If the permit is denied or modified, the applicant may appeal in writing within five days to the City Clerk's office "for determination by the City Council." Id. at 3-15(g).
Section 3-116 of the MOGO provides:
(a) It is recognized that a mass outdoor gathering attended by two hundred (200) or more persons may create a hazard to public health and safety. Accordingly, it is deemed to be appropriate and in the interest of the public welfare to regulate the conduct of such gatherings in order to protect the public health and safety.
(b) No person shall sponsor, promote or conduct a mass outdoor gathering with the intent to attract or the understanding that the gathering may attract two hundred (200) or more persons until a permit has been obtained thereof from the Augusta Police Chief or his designee. The application for a permit must be submitted no less than thirty (30) days prior to the mass gathering, unless the City Manager allows a shorter time frame for good cause shown.
(Code 1970, § 3-57; Ord. No. 105, 9-8-03).
Section 3-117 directs that:
The Police Chief shall grant a permit to sponsor, promote or conduct a mass outdoor gathering to be attended by two hundred (200) or more persons upon written application therefore unless it appears to the Police Chief within a reasonable certainty that such gathering will unreasonably endanger the public health or public safety.
(Code 1970, § 3-58; Ord. No. 105, 9-8-03).
Section 3-118 states:
Prior to the issuance of a permit under this article, the applicant shall furnish the Police Chief with adequate proof that the following will be available at the gathering:
(1) The furnishing of adequate and satisfactory water supply and sewer facilities;
(2) Adequate refuse storage and disposal facilities, adequate medical facilities;
(3) Adequate fire and police protection; and
(4) Such other matters as may be appropriate for security of health and safety.
The Police Chief may review such plans, specifications and reports as is deemed necessary for a proper review of the proposed mass gathering.
(Code 1970, § 3-59, Ord. No. 105, 9-8-03).
The permit fee is $100.00, plus the "cost estimated by the City for cleanup and traffic control". Section 3-120. The MOGO provisions do not apply "to athletic events conducted by the Board of Education, Little League or other organizations, provided alcohol is not available." Section 3-122.
On February 9, 2004, on behalf of the March for Truth Coalition, Mr. Sullivan filed an "Application for Parade Permit" with the City Police Department, proposing three parade routes. The permit stated the parade would be held on Saturday March 20, 2004, between 12:30-2:00 p.m. Sullivan, 310 F.Supp.2d at 351. Of three approved parade routes, Augusta Deputy Police Chief Major Gregoire (Major Gregoire) determined the first would require twelve officers and two police vehicles for traffic control, costing $2,077.44 and the second, ten officers and two police vehicles, costing $1,761.20. In later discussions, Major Gregoire approved a third route, costing $1,543.08. Id. To calculate these costs, Major Gregoire considered only the following factors: "the route to be taken, the duration of the route, the estimated number of people who will attend, whether marchers intend to close the entire road or only one direction of travel, and whether there are any other events or special circumstances within the City which could affect traffic." Gregoire Supplemental Aff. ¶ 6 (Docket # 50). Major Gregoire based his assessment of traffic control needs only on factors "completely unrelated to the message to be communicated by marchers."2 Id. Mr. Sullivan (and the March for Truth Coalition) claimed not to have the resources to pay the permit fee. Id.; Sullivan Dep. at 8:6-12:3, 17:7-18:13 .3
On August 3, 2004, Lawrence Dansinger applied for a parade permit to hold a peace march/rally on October 16, 2004 in conjunction with the Million Worker March to be held in Washington, D.C. the next day. Pls.' Statement of Mat. Facts at ¶ 46 (PSMF). Mr. Dansinger agreed to apply for the permit and assumed Mr. Sullivan and Tony Aman "would be doing other aspects of the organizing." Dansigner Dep. at 19:10-12 . The Augusta Police Department responded to Mr. Dansinger's application by letter dated September 15, 2004, advising him that, in addition to the initial application fee of $100.00, approval of the parade permit was conditioned on payment of $1,979.32. PSMF ¶ 53. Mr. Dansinger responded by a letter from his attorney dated September 29, 2004, explaining that the permit fee of almost $2,000.00 created a substantial financial hardship for him and requesting the fee be waived because of his limited financial means. Id. ¶ 54. This letter explained that Mr. Dansinger's annual income was $8,400.00, asserted that he could not afford to pay the additional estimated permit fee, and requested that the City establish an inability to pay exception for the traffic control fees charged for free speech activities. Id. The City never responded. Id. ¶ 55. The Augusta Police Department does not consider financial hardship in acting upon an application for a parade permit. Id.
In Sullivan I, this Court addressed only the constitutionality of the Parade Ordinance, not the MOGO. This Court upheld the City's mandatory application fee and imposition of costs associated with police services, stating there "is no evidence ... the application fee is anything but administrative" and "the police fee is simply a mathematical computation based on the Police Chief's assessment of the police presence necessitated by the parade route." Sullivan, 310 F.Supp.2d at 354. However, this Court struck down the ordinance's bond requirement, explaining that it "requires to some degree that the police chief assess the content of the proposed event" and "fails to articulate the standards by which such a determination ...may be...
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