Walsh v. Enge, Case No. 3:15–cv–01666–SI

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: Michael H. Simon, District Judge.
• Citation: 154 F.Supp.3d 1113
• Parties: Joseph Walsh, Plaintiff, v. Bryant Enge, Charlie Hales, and City of Portland, Defendants.
• Decision Date: 31 December 2015
• Docket Number: Case No. 3:15–cv–01666–SI

154 F.Supp.3d 1113

Joseph Walsh, Plaintiff,
v.
Bryant Enge, Charlie Hales, and City of Portland, Defendants.

Case No. 3:15–cv–01666–SI

United States District Court, D. Oregon.

Signed December 31, 2015

154 F.Supp.3d 1118

Joseph Walsh, 7348 SE Division St., Portland, OR 97206, pro se.

David A. Landrum, Senior Deputy City Attorney, and Daniel A. Simon, Assistant Deputy City Attorney, City of Portland, Oregon, City Attorney's Office, 1221 SW Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendants.

OPINION AND ORDER

Michael H. Simon, District Judge.

This case requires the Court to decide whether the First Amendment allows a Mayor or his or her designee, acting pursuant to a city ordinance, to exclude a person, potentially indefinitely, from attending future City Council meetings to which the public is otherwise invited to attend and present their opinions simply because the person has been disruptive at previous meetings. The First Amendment protects, among other things, “freedom of speech” and “petitioning for a governmental redress of grievances.” U.S. Const. amend. I. The First Amendment is incorporated into the Fourteenth Amendment and thus applies to the states and local governmental bodies. Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). No appellate opinion of which this Court is aware has ever held that the First Amendment permits prospective exclusion orders from otherwise public city council meetings. A presiding officer may remove a disruptive individual from any particular meeting, and a sufficiently disruptive person may even be prosecuted for such conduct if public law permits. But no matter how many meetings of a city council a person disrupts, he or she does not forfeit or lose the future ability to exercise constitutional rights and may not be prospectively barred from attending future meetings. Our democratic republic is not so fragile, and our First Amendment is not so weak.

On July 8, 2015, Joseph Walsh (“Walsh” or “Plaintiff”) attended a Portland City Council meeting at City Hall. After Walsh raised his voice and interrupted proceedings, Defendant Mayor Charlie Hales (“Mayor Hales”) asked Walsh to leave the City Council meeting and told Walsh that he would be excluded from future City Council meetings for 60 days. This was not the first time that Walsh had been disruptive at a City Council meeting, and it was not the first time that he had been ejected from a meeting that he had disrupted. In fact, Walsh had twice previously been given 30–day exclusion orders from City Council meetings based on his disruptive conduct. He did not, however, challenge those two earlier orders in court.

On July 15, 2015, Defendant Bryant Enge (“Enge”) issued Walsh a Notice of Exclusion from City Property (the “Notice”). The Notice informed Walsh that Defendant City of Portland (the “City”)

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was excluding him from City Hall for a period of 60 days, from July 15, 2015, to September 15, 2015. Walsh, representing himself, filed this lawsuit against Defendants on September 3, 2015, under federal civil rights laws, specifically 42 U.S.C. § 1983. He seeks a permanent injunction against enforcement of Portland City Code (“PCC”) § 3.15.020B.5.b, which authorizes up to an indefinite exclusion from City Hall and City Council Chambers of persons who disrupt a City Council meeting. Walsh also seeks a declaratory judgment that the exclusion ordinance violates the First Amendment. Walsh challenges the exclusion ordinance both facially and as applied to him. In lieu of proceeding on Walsh's motion for a temporary restraining order, Defendants and Walsh agreed that they would file cross-motions for summary judgment. For the reasons that follow, Defendants' motion is denied and Walsh's motion is granted.¹

The First Amendment reflects our democratic republic's commitment to the principle that “debate on public issues should be uninhibited, robust, and wide-open.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The First Amendment's guarantees do not, however, require the government freely to grant access to all who wish to exercise their right to free speech on every type of government property, at any time, without regard to the disruption caused by the speaker's activities. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Even in a democracy, the government need not tolerate actual disruptions of government business. Undisputedly, a presiding officer may remove from an official public meeting anyone who engages in actual disruption, provided that the officer is acting in a manner that is neutral with regard to the viewpoint being expressed by the disruptive speaker.

What the government may not do is prospectively exclude individuals from future public meetings merely because they have been disruptive in the past. A contrary holding might lead to officials shutting the government's doors to those whose viewpoints the government finds annoying, distasteful, or unpopular. Permanent or even lengthy exclusions for past disruptive conduct could become a convenient guise for censoring criticisms directed toward the powerful. The First Amendment's guarantees, although not absolute, are not so flimsy. The Court holds that PCC § 3.15.020B.5.b violates the First Amendment because the ordinance allows for the prospective exclusion of an individual from future City Council meetings based solely on a finding that the excluded person has been disruptive in the past.

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor.

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Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir.2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).

Where parties file cross-motions for summary judgment, the court “evaluate[s] each motion separately, giving the non-moving party in each instance the benefit of all reasonable inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790–91 (9th Cir.2006) (quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir.2010) (“Cross-motions for summary judgment are evaluated separately under [the] same standard.”). In evaluating the motions, “the court must consider each party's evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir.2011). “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010). Thereafter, the non-moving party bears the burden of designating “specific facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as to the material facts at issue. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.

In addition, a court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.2010). “A pro se litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear that the deficiencies of the complaint could not be cured by amendment.’ ” Karim–Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987), superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000) ).

BACKGROUND²

A. The Portland City Code and Rules of Conduct

The City of Portland's Office of Management and Finance (“OMF”), through the OMF Bureau of Internal Business Services, manages city-owned property assigned to OMF under PCC § 3.15.020. PCC § 3.15.020B.5 gives OMF the authority to “[d]evelop and enforce Rules of Conduct for City Buildings, and require all

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