USA v. Baugh, 98-10224
| Decision Date | 25 August 1999 |
| Docket Number | No. 98-10224,98-10224 |
| Citation | 187 F.3d 1037 |
| Parties | (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAMELA BAUGH; BENIJAMIN BEAR; ALAN BEIM; LOU BORDISSO; MARIA BRANN; MARY JANE BRINTON; JESSE BROWN; KENNETH BUTIGAN; FAYE BUTLER; CHRISTIE CANNON; JEAN CATHER; ROBERT CHAMBERLIN; GLORIA CHANNON; NORMAN CHASE; JAMES CORDER; ROBERT COX; DOUGLAS DONLEY; SILE DOOLEY;JENNIFER DUNLAP; WILLIAM EPSEN;ARLA ERTZ; JOHN FAY; FOREST,AKA Gretchen Milne; BERNIE GALVIN; MARGARET GLEASON;EDWARD GLEASON, PAUL GROSSBERG; MARY HEIN; JOAN HOPKINS; JEFF JOHNSON; KATHRYN JORGENSON; ROBERT KING; BARBARA KOHN; HENRY KROLL; CONSTANCE KURUPPU; CHRIS LATHAM; KRISTI LAUGHLIN; ANGIE LOBATO; LOUISE LYNCH; ELOISE MAGENHEIM; JOSEPH MASTROCOLA; TERRY MESSMAN; JOHN MILLEN; JEAN MONTETON; SIDENY MOORMEISTER; INNOSANTO NAGARA; KELLY NEFF; NORBERT NICHOLS; KATHLEEN NIECE; MICHAEL NIECE; WILLIAM O'DONNELL; CYNTHIA OKAYAMA- DOPKE; KAREN OLIVETO; PAMELA OSGOOD; DEBRA PANEK; CHRISTINE PANELLI; JOHN PAPPAS; TERESA PARENT; SARAH ROCK; LORETTA ROWLES; MARY SCHOONE; CHRISTINE SMITH; RON STIEF; NAOMI SULTAN; GAIL TAYLOR; JAMES TRACY; JAMES - WAGNER; JANET WEIL; P. E. COFFEY, aka WhirlwindDreamer; CAROLYN ZITO, Defendants-Appellants |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dennis Cunningham, San Francisco, California, for the defendants-appellants.
George S. Cardona and Mark St. Angelo, Assistant United States Attorneys, San Francisco, California, for the plaintiff-appellees.
Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding. D.C. No. CR-97-00104-MMC.
Before: Mary M. Schroeder, Stephen Reinhardt, and Barry G. Silverman, Circuit Judges. Opinion by Judge Schroeder; Concurrence by Judge Silverman
Pamela Baugh and other members of a group called Religious Witness with Homeless People ("RWHP") appeal their convictions for demonstrating without a permit on National Park property, in violation of 36 C.F.R. S 2.51(a). At the time of their arrest, the defendants were protesting the Park Service's plan to demolish the Wherry housing in the Presidio in San Francisco instead of using the units to house the homeless.
The defendants challenge the constitutional validity of the permit regulation and its implementing rules both facially and as applied to their protest. We do not reach the facial challenge, for we hold that the Park Service's application of the regulation to the defendants violated the defendants' First Amendment rights.
The demonstration for which the government arrested the defendants occurred on March 9, 1997. This was not the first time RWHP had protested the planned destruction of the housing that it wanted used to house the homeless. In past protests by the organization at the Presidio, after marching through the Wherry housing area, some RWHP members had trespassed into the housing and had refused to leave until they were arrested. On these occasions, the trespassing demonstrators were arrested both for demonstrating without a permit and for trespass, but were only prosecuted for trespass. Park Police Lieutenant Kevin Hay learned of the March 9th demonstration a few days before. He telephoned Sister Bernie Galvin, executive director of RWHP, and asked her if the group wanted a permit. Lt. Hay told Sister Bernie that RWHP would receive a permit only if Sister Bernie promised that no trespassing into the units would occur at the march. Sister Bernie indicated that RWHP desired a permit but refused to promise that no trespassing would occur.
Although the earlier protests had taken place solely at the housing area, RWHP intended to convene on March 9th at the Visitor Center, in a different part of the Presidio, before going to the Wherry housing area to march. On March 9th, about 150 to 175 RWHP members gathered before the Visitor Center. Sister Bernie spoke to Lt. Hay two or three times at that location. He again made it clear that the permit would issue only if Sister Bernie would promise that none of the RWHP members would trespass into the housing units. Sister Bernie again refused to make this pledge.
Lt. Hay told Sister Bernie that the group would have to move to an area reserved for protestors known as the "First Amendment area" located 150 to 175 yards from the Visitor Center. Sister Bernie declined this option as well. She and other RWHP members believed that the designated area was located too far away from the Visitor Center to convey RWHP's message to Park Service officials and the public. Because of the Park Service's stance, the group gave up their march and decided instead to hold a prayer service where they stood: on the Visitor Center's lawn. Shortly after the inception of the prayer service, Lt. Hay made several announcements that the group would be arrested if it did not move to the First Amendment area. Although some RWHP demonstrators went to the First Amendment area or crossed the street, those who remained in front of the Visitor Center were promptly arrested.
The record contains some indication that the protestors may have caused some disruption of Visitor Center activities, but the Park Service did not arrest defendants for this reason. It arrested defendants solely for not having a permit to engage in their expressive activities. According to Lt. Hay's testimony, the Park Service might have permitted the demonstration to go forward at a location much closer to the Visitor Center than the so-called First Amendment area had Sister Bernie been willing to negotiate further. Sister Bernie, for her part, testified that she did not believe she possessed this option.
The defendants moved to quash their arrests on the grounds that the arrests violated the First Amendment and the district court denied the motion. The court held that 36 C.F.R. S 2.51 and the Park Service's implementing regulations were constitutional on their face and as applied to the defendants. On April 13, 1998, after a one-day bench trial, defendants were convicted of demonstrating without a permit in violation of S 2.51(a). The district court held that the no-trespassing condition imposed by the Park Service constituted a reasonable condition for the permit. The district court sentenced the defendants to ninety days of unsupervised probation and twelve hours of community service.
The Park Service regulates expressive activity at the Presidio under 36 C.F.R. S 2.51,1 which is implemented through a compendium of Park rules. The permit regulation presumptively allows expressive activities, provided the Park superintendent has issued a permit in advance. See 36 C.F.R. S 2.51(a). The regulation further specifies that the superintendent shall, without unreasonable delay, issue a permit upon a proper application unless certain conditions apply. See S 2.51(c). One such condition is "[i]t reasonably appears that the event will present a clear and present danger to the public health or safety." See S 2.51(c)(2). Another condition is the inability to accommodate the event in the applied-for location due to the nature of the event and considering such factors as damage to park resources or facilities, damage to a protected area's atmosphere of peace and tranquility, or disturbance of program activities or public use facilities. See S 2.51(c)(3).
The regulation also provides that the superintendent should designate on a map the locations available for public assemblies. See S 2.51(e). These areas must be available for assemblies unless, inter alia, the activities would cause injury or damage to park resources; unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the National Park Service; substantially interfere with the operation of public use facilities; or present a clear and present danger to the public health and safety. See S 2.51(e).
The compendium of implementing regulations designates three locations within the Presidio for which the Park Service will issue permits for First Amendment activities. If a group wishes to stage a special event, it may apply to the superintendent for the designation of an additional First Amendment area. If the criteria in the regulations are complied with, the superintendent will designate another specific location for the exercise of First Amendment activities. At trial, a Park Service official testified that he had the authority to issue floating permits to groups who applied and who wished to hold First Amendment activities that warranted such a permit.
While engaged in purely expressive conduct that did not violate the Park Service's no-trespassing condition, defendants were arrested because they lacked a permit the Park refused to issue unless defendants promised not to trespass. We must decide whether the arrests violated the defendants' First Amendment right to free speech.
Before reaching this question, however, we must first address the threshold issue of standing. The government does not question the defendants' standing to make a facial challenge because one need not apply for a benefit conditioned by a facially unconstitutional law. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969). The government, however, does contend that the defendants may not make an as-applied challenge because they did not apply for a permit for their prayer service.
In Madsen v. Boise State University, we held that generally one may not challenge a rule or policy to which one "has not submitted himself by actually applying for the desired benefit." 976 F.2d 1219, 1220 (9th Cir. 1992); see also United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir. 1997); Gerritsen v. City of Los Angeles, 994 F.2d 570, 575 (9th Cir. 1993). A central reason for...
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