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Comite De Jornaleros De Redondo Beach v. City of Redondo Beach

June 9, 2010

COMITE DE JORNALEROS DE REDONDO BEACH; NATIONAL DAY LABORER ORGANIZING NETWORK, PLAINTIFFS-APPELLEES,
v.
CITY OF REDONDO BEACH, DEFENDANT-APPELLANT.
COMITE DE JORNALEROS DE REDONDO BEACH; NATIONAL DAY LABORER ORGANIZING NETWORK, PLAINTIFFS-APPELLEES,
v.
CITY OF REDONDO BEACH, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding D.C. Nos. CV-04-09396-CBM & CV-04-09396-CBM.

The opinion of the court was delivered by: Ikuta, Circuit Judge

FOR PUBLICATION

Argued and Submitted May 9, 2008 -- Pasadena, California.

Before: Kim McLane Wardlaw and Sandra S. Ikuta, Circuit Judges, and Ralph R. Beistline,*fn1 District Judge.

Opinion by Judge Ikuta; Dissent by Judge Wardlaw.

OPINION

This appeal raises a First Amendment challenge to Redondo Beach Municipal Code § 3-7.1601, which prohibits the act of standing on a street or highway and soliciting employment, business, or contributions from the occupants of an automobile. We have previously upheld a virtually identical ordinance against a constitutional challenge. See ACORN v. City of Phoenix, 798 F.2d 1260, 1273 (9th Cir. 1986). We reach the same result here and hold that the Redondo Beach ordinance is a valid time, place, or manner restriction. Accordingly, we reverse the contrary decision of the district court.

I.

The facts giving rise to this controversy can be traced back to ACORN, where the Association of Community Organizations for Reform Now (ACORN), a non-profit political action organization, raised a First and Fourteenth Amendment challenge to a Phoenix ordinance that read: "No person shall stand on a street or highway and solicit, or attempt to solicit, employment, business or contributions from the occupants of any vehicle." Id. at 1262. According to ACORN, the challenged ordinance deterred its members from "tagging." As we explained, "[t]agging . . . involves an individual stepping into the street and approaching an automobile when it is stopped at a red traffic light. The individual asks the occupants of the vehicle for a contribution to ACORN and distributes a slip of paper, or 'tag,' providing information about ACORN and its activities." Id.

We determined that the restrictions imposed by the Phoenix ordinance were content neutral, narrowly tailored to serve a significant government interest, and left open ample alternative channels of communication. Id. at 1267-71. Accordingly, we concluded that the ordinance was a reasonable time, place, or manner restriction which did not violate ACORN's First Amendment rights. Id. at 1273. We also rejected ACORN's argument that the ordinance was facially overbroad because it would deter not only ACORN's tagging at intersections, but also persons soliciting "on the sidewalks of Phoenix, during parades or demonstrations, or on streets closed to vehicle traffic." Id. at 1272. Because the ordinance was narrow, and prohibited "only solicitation in the streets 'from the occupants of any vehicle,' " id., we concluded that ACORN's overbreadth argument ran "completely contrary to the language of the ordinance," id. at 1273.

Some eight months after we decided ACORN, Redondo Beach's city attorney proposed that the city adopt an ordinance "identical to one recently approved by the 9th circuit court of appeals." A memorandum from the city attorney to the mayor explained that "the City has had extreme difficulties with persons soliciting employment from the sidewalks along the Artesia corridor over the last several years. . . . There can be little question that traffic and safety hazards occur by this practice." A later memorandum by the same city attorney stated that the "ordinance was designed to alleviate sidewalk congestion and traffic hazards which occurred when large numbers of persons congregated on the sidewalks during the rush hours to obtain temporary employment."

Using ACORN as a guide in drafting its own ordinance, Redondo Beach enacted Redondo Beach Municipal Code § 3-7.1601, which provides:

It shall be unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle. For purposes of this section, "street or highway" shall mean all of that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, medians, alleys, sidewalks, curbs, and public ways.*fn2

The first sentence of the Redondo Beach ordinance is identical to the operative language of the Phoenix ordinance from ACORN. See 798 F.2d at 1262. The second sentence adds the California Vehicle Code's definitions of "street," and "highway." See Cal. Veh. Code §§ 360, 590 (2009). In 1989, Redondo Beach added subsection (b) imposing a correlative restriction on drivers. It states: "It shall be unlawful for any person to stop, park or stand a motor vehicle on a street or highway from which any occupant attempts to hire or hires for employment another person or persons." As the city attorney explained in an earlier memorandum, "[b]y adopting this amendment, both the prospective employee and employer would be subject to a misdemeanor offense for soliciting the other from a street or highway."

After passage of the ordinance, Redondo Beach continued to experience traffic problems related to persons soliciting employment from automobiles at two of the city's intersections. In October 2004, Redondo Beach undertook "an enhanced effort" to enforce the Redondo Beach ordinance at these two intersections. Throughout October and November 2004, Redondo Beach police officers, sometimes posing as potential employers, arrested multiple persons for violating subsection (a) of the ordinance, and cited one person for violating subsection (b). According to the officer who was in charge of the enforcement project, "[d]ay laborers were only contacted and arrested when they were on the sidewalk and approached a stopped vehicle. The prospective employer who was charged with violation of Municipal Code Section 3-7.1601(b) was contacted because he stopped in a traffic lane to conduct a hiring discussion with day laborers."

On November 16, 2004, Comite de Jornaleros de Redondo Beach (Comite) and the National Day Laborer Organizing Network (NDLON) filed this suit in district court. Comite identifies itself as "an unincorporated association comprised of day laborers who . . . regularly seek work in the City of Redondo Beach," and NDLON identifies itself as "a nationwide coalition of day laborers and the agencies that work with day laborers." Their complaint alleged that the Redondo Beach ordinance deprived them and others of free speech rights guaranteed by the First and Fourteenth Amendments, and sought injunctive, monetary, and declarative relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201. The district court issued a temporary restraining order, and later a preliminary injunction barring enforcement of the Redondo Beach ordinance. We affirmed the preliminary injunction in an unpublished memorandum disposition. 127 Fed. Appx. 994 (9th Cir. 2005).

Both plaintiffs and Redondo Beach moved for summary judgment, which the district court addressed in a published opinion. 475 F. Supp. 2d 952 (C.D. Cal. 2006). The district court held that the Redondo Beach ordinance was content neutral, but was nevertheless invalid because (1) it was not "narrowly tailored to promote [Redondo Beach's] interests in traffic flow and safety," and (2) it "failed to establish the existence of ample alternative channels of communication." Id. at 966-68. Accordingly, the district court granted the plaintiffs' motion for summary judgment, permanently enjoined Redondo Beach from enforcing its ordinance, and ordered that "all fines, penalties, or records of infractions" of the Redondo Beach ordinance "be rescinded or removed and restitution provided." Id. at 970. Redondo Beach timely appealed. The district court subsequently granted Redondo Beach's motion to stay the order granting partial relief pending resolution of the appeal. The district court also awarded attorneys' fees to plaintiffs pursuant to 42 U.S.C. § 1988, which Redondo Beach has also timely appealed.

We review de novo the district court's grant of summary judgment in favor of NDLON. See, e.g., ACLU of Nevada v. City of Las Vegas (ACLU II), 466 F.3d 784, 790 (9th Cir. 2006). When considering a motion for summary judgment, we view the evidence in the light most favorable to the nonmoving party, and draw "all justifiable inferences" in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

II.

Redondo Beach makes the threshold argument that Comite and NDLON lack standing to challenge the ordinance. To have standing under Article III, a plaintiff must have suffered an "injury in fact," defined as "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). There also must be a causal connection between the injury and the defendant's conduct, and the injury must be redressable by a favorable decision. Id. at 561. Here Redondo Beach argues that Comite and NDLON fail to satisfy the Article III injury-in-fact requirement.

[1] An organization may establish a sufficient injury in fact if it substantiates by affidavit or other specific evidence that a challenged statute or policy frustrates the organization's goals and requires the organization "to expend resources in representing clients they otherwise would spend in other ways." El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 748 (9th Cir. 1992); see also Fair Housing of Marin v. Combs, 285 F.3d 899, 904-05 (9th Cir. 2002). But "standing must be established independent of the lawsuit filed by the plaintiff." Walker v. City of Lakewood, 272 F.3d 1114, 1124 n.3 (9th Cir. 2001).

[2] NDLON has met the burden to establish its standing as an organization. The record contains declarations of NDLON officials that enforcement of the Redondo Beach ordinance has frustrated NDLON's mission "to strengthen and expand the work of local day laborer organizing groups" because it "has prevented day laborers from making their availability to work known in the City of Redondo Beach." Moreover, the ordinance has discouraged both employees and employers from participating in hiring transactions. Redondo Beach has offered no evidence to dispute these claims. NDLON also has offered uncontradicted evidence that enforcement of the ordinance has forced it to divert resources, independent of expenses for this litigation, that it would have spent in other ways. NDLON's west coast coordinator testified that she met with workers at the intersections targeted by Redondo Beach to discuss enforcement of the ordinance almost daily from the end of October 2004 until mid-December 2004, and weekly thereafter through June 2005. She also testified that she went to the police station to assist day laborers who had been arrested. NDLON's national coordinator testified that the time and resources spent in assisting day laborers during their arrests and meeting with workers about the status of the ordinance would have otherwise been expended toward NDLON's core organizing activities. In sum, NDLON has established a sufficient organizational injury for standing purposes. See El Rescate, 959 F.2d at 748.

[3] Because there is a causal connection between Redondo Beach's ordinance and NDLON's injury, and NDLON's injury would be redressable by a favorable decision, we conclude that NDLON has standing to bring this appeal. Accordingly, we have jurisdiction over this facial challenge irrespective of Comite's standing. "Where the legal issues on appeal are fairly raised by one plaintiff [who] had standing to bring the suit, the court need not consider the standing of the other plaintiffs." Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 918 (9th Cir. 2004) (alteration in original) (internal quotation marks omitted). Therefore, we do not address the parties' remaining standing arguments, including Redondo Beach's evidentiary arguments. For ease of reference, we will refer to the appellees in this case collectively as NDLON.

III.

[4] The First Amendment guarantees that "Congress shall make no law . . . abridging the freedom of speech."*fn3 The Supreme Court has made clear, however, that:

even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information."

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).*fn4

Redondo Beach's ordinance regulates solicitation, which we have long recognized is a form of expression that consists of both expressive content and associated conduct or acts. The "words" component of solicitation includes both written and spoken communications. See ACLU II, 466 F.3d at 793-94. The "acts" component of solicitation includes the conduct of the person soliciting (e.g., in-person demands requiring an immediate response, such as approaching a person or vehicle "and demanding a personal response," ACORN, 798 F.2d at 1269 n.8). It also includes the effects of such conduct, such as impeding the flow of traffic, causing the target of solicitation to dodge an "implied threat of physical touching," Hill v. Colorado, 530 U.S. 703, 724 (2000), and other "disruption and delay caused by solicitation," United States v. Kokinda, 497 U.S. 720, 734 (1990). See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 683-84, 705 (1992) ("Passengers who wish to avoid the solicitor may have to alter their paths, slowing both themselves and those around them."). The dual nature of solicitation does not change the fact that solicitation is a form of expression and "[e]xpression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions." Clark, 468 U.S. at 293.*fn5

The issue here is whether Redondo Beach's ordinance was a valid limitation on speech. As in ACORN, we will assume that the streets of Redondo Beach constitute a perpetual public forum, even when they are in use by vehicular traffic. 798 F.2d at 1267; see Frisby v. Schultz, 487 U.S. 474, 481 (1988) ("[A]ll public streets are held in the public trust and are properly considered traditional public fora."). Accordingly, we must consider whether the Redondo Beach ordinance is content neutral, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication of information. Clark, 468 U.S. at 293. NDLON, in its cross-appeal, argues that the district court erred in concluding that the ordinance was content neutral, while Redondo Beach argues that the district court erred in holding that the ordinance was not narrowly tailored and that ample alternative channels of communication were lacking. We consider these arguments in turn, mindful of the Supreme Court's direction that we may, and generally should, construe an enactment in a manner that will allow us to uphold its constitutionality. See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 770 n.11 (1988) ("[T]his court will presume any narrowing construction or practice to which the law is fairly susceptible." (internal quotation marks omitted)).

A.

We have held that restrictions on acts of solicitation that were passed to support legitimate government concerns unrelated to suppressing any particular message are content neutral. See ACLU II, 466 F.3d at 794 & n.10 (noting that "courts have held that bans on the act of solicitation are content-neutral," while courts have determined that bans separating out "words of solicitation for differential treatment" are content based (citing cases)); see also Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009) (en banc) (stating that "regulations that ban certain conduct associated with solicitation do not violate the prohibition on content-based regulation of speech"). Indeed, this principle is well grounded in Supreme Court precedent, which establishes that a regulation affecting speech-related activities is content neutral if it "serves purposes unrelated to the content of expression . . . even if it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791.

Justice Kennedy made this point in his concurring opinion in Lee, 505 U.S. at 705, which we have relied on in ACLU II, 466 F.3d at 795, and Berger, 569 F.3d at 1050. In Lee, Justice Kennedy interpreted the Port Authority's ban on solicitation in an airport as being aimed at abusive acts associated with the physical exchange of money, described as "an element of conduct interwoven with otherwise expressive solicitation." 505 U.S. at 705 (Kennedy, J., concurring). Because the Port Authority's regulation prohibiting solicitation was "directed at these abusive practices and not at any particular message, idea, or form of speech, the regulation [was] a content-neutral rule serving a significant government interest." Id. at 706. In sum, where a regulation is aimed at actions entwined with expressive content, the principal inquiry is whether "restrictions of this kind . . . are justified without reference to the content of the regulated speech." Clark, 468 U.S. at 293-94 (citing cases).

A restriction aimed at conduct does not satisfy this content neutrality test, however, when the restriction "by its very terms, singles out particular content for differential treatment." Berger, 569 F.3d at 1051; see ACLU II, 466 F.3d at 794. For example, in ACLU II we concluded that a municipal ordinance prohibiting solicitation throughout a five-block tract of downtown Las Vegas was content based.*fn6 Although we determined that the "uncontroverted evidence supports that the ordinance was enacted with the purpose of controlling the secondary effects of solicitation, rather than the content of the soliciting requests themselves," id. at 793, we held the ordinance nevertheless "discriminates based on content on its face" because it prohibited the distribution of handbills "re-questing financial or other assistance" while permitting the distribution of handbills that did not make such a request, id. at 794.

We came to a similar conclusion in Berger. There, we analyzed a rule that prohibited street performers from "actively solicit[ing] donations" at the Seattle Center.*fn7 Berger, 569 F.3d at 1035. We acknowledged that Seattle passed the rule for the content-neutral purpose of "protect[ing] Center patrons from harassment" caused by active solicitation conduct, id. at 1051, but held that the ordinance was content based because on its face it differentiated between messages. Specifically, the ordinance "restrict[ed] street performers from communicating a particular set of messages-requests for donations, such as 'I'd like you to give me some money if you enjoyed my performance,' " but did not prohibit street performers from actively communicating other messages. Id. We stated that while "this distinction [may be] innocuous or eminently reasonable, it is still a content-based distinction because it 'singles out certain speech for differential treatment based on the idea expressed.' " Id. (quoting ACLU II, 466 F.3d at 794).

[5] Distilling these cases, we derive the general rule that an ordinance regulating solicitation is content neutral if it is aimed at acts of solicitation and "not at any particular message, idea, or form of speech," Lee, 505 U.S. at 706 (Kennedy, J., concurring). An ordinance that "by its very terms, singles out particular content for differential treatment" does not satisfy this test. See Berger, 569 F.3d at 1051. With these principles in mind, we analyze Redondo Beach's ordinance.

[6] There is no meaningful distinction between the Phoenix and Redondo Beach ordinances, and therefore we are bound by our determination in ACORN that the Phoenix ordinance was content neutral because it was aimed narrowly at barring acts of solicitation directed toward the occupants of vehicles, 798 F.2d at 1273, and was not related to any particular message or content of speech, id. at 1267. Indeed, the language of the two ordinances is identical in all material respects. Although Redondo Beach's ordinance mentions "sidewalks," and the Phoenix ordinance does not, this difference is immaterial because ACORN interpreted the Phoenix ordinance as applying to persons soliciting vehicles from the sidewalk, as well as those soliciting from the street. Id. at 1269 n.9; see infra at 8375. Similarly, while the Redondo Beach ordinance applies to the conduct of potential employers while the Phoenix ordinance does not, this distinction does not affect the scope of prohibited conduct, i.e., in-person demands directed at drivers that require an immediate response.

Nor does the record include evidence of any "binding judicial or administrative construction, or well-established practice" suggesting that Redondo Beach has adopted an interpretation different from that described in ACORN. Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1035 (9th Cir. 2006) (internal quotation marks omitted). Redondo Beach's enforcement efforts have focused exclusively on conduct without reference to content. The record establishes that officers charged only individuals who "solicit[ed] vehicles so as to cause a driver to stop in traffic," or who "approached a stopped vehicle" when the vehicle was "stopped in a traffic lane." Those who "solicit[ed] from behind the sidewalk line in adjacent shopping centers' parking lots [were] not regulated by the Ordinance." Redondo Beach also has not prevented people from "leafleting empty parked cars, approaching cars already legally parked in the street, or holding up signs to be seen by passing cars." No one has been arrested for communicating a message by means that did not adversely affect traffic. Although the dissent notes that persons soliciting contributions challenged the Phoenix ordinance, while persons soliciting employment brought the challenge here, see Dissent at 8396, the dissent fails to explain why this makes a difference for purposes of a First Amendment analysis. So long as the ordinance targets conduct unrelated to the content of the message, it does not matter whether the ordinance impacts solicitation undertaken to secure employment, as in Redondo Beach, or to secure contributions, as in Phoenix. Because there is no meaningful distinction between the Phoenix ordinance and the Redondo Beach ordinance as drafted, interpreted, and enforced, we conclude that the Redondo Beach ordinance is likewise aimed at acts, does not single out particular ideas for differential treatment, and is content neutral. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992) ("In evaluating respondent's facial challenge, we must consider the county's authoritative constructions of the ordinance, including its own implementation and interpretation of it."); see also Ward, 491 U.S. at 795-96 ("Administrative interpretation and implementation of a regulation are, of course, highly relevant to our analysis, for in evaluating a facial challenge to a state law, a federal court must consider any limiting construction that a state court or enforcement agency has proffered." (alterations and internal quotation marks omitted)).

NDLON raises two challenges to this conclusion. First, NDLON argues that the ordinance differentiates between messages because it prohibits individuals from conveying the message "I need a job" while allowing the message "I need a vote." Second, NDLON asserts that the ordinance singles out three categories of speech (employment, business, or contributions) for regulation while leaving other categories free from censor.

Both of these arguments are foreclosed by ACORN and Berger. As we explained in Berger, the type of ordinance at issue in ACORN and in this case does not restrict words of solicitation or forbid "passing out handbills asking car drivers or passengers to contribute by mail to a charity or cause." Berger, 569 F.3d at 1052 n.23. Rather, it is aimed at acts of on-the-spot solicitation. Id. An ordinance aimed at acts of solicitation rather than words "is not a content-based regulation of speech, and so does not run afoul of the content neutrality requirement." Id.; see ACLU II, 466 F.3d at 795.

NDLON's second argument, that the Redondo Beach ordinance is not content neutral because it singles out three categories of speech (employment, business or contributions) for regulation, similarly fails in light of ACORN and Berger. Moreover, an ordinance does not single out specific messages for different treatment merely because it regulates broad categories of communication. In Hill, the Supreme Court held that Colorado's ban on "oral protest, education, or counseling" near health care facilities without the consent of the listener is not content based. 530 U.S. at 724. According to the Court, such an ordinance "places no restrictions on-and clearly does not prohibit-either a particular viewpoint or any subject matter that may be discussed by a speaker." Id. at 723. Rather, it simply "establishes a minor place restriction on an extremely broad category of communications." Id. When an ordinance is framed as applying to such broad categories of communication, it does not "draw[ ] distinctions based on the subject that the approaching speaker may wish to address." Id. Like the enactment at issue in Hill, Redondo Beach's ordinance establishes a place restriction on particular manners of expression that fall within certain broad categories, but does not impose limitations based on disagreement with the message's content.

NDLON argues that because a police officer enforcing the Redondo Beach ordinance must listen to the content of the speech to determine whether it falls within an impermissible or a permissible category, it fails the "officer must read it" test. NDLON refers to Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998), which held that a restriction is content based if "a law enforcement officer must examine the content" of the speaker's message to determine whether it falls within the restriction. Id. at 636 (internal quotation marks omitted); see ACLU II, 466 F.3d at 794-96.

[7] NDLON's reliance on the "officer must read it" test is misplaced. Two years after we decided Foti, the Supreme Court clarified in Hill that it has "never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule applies to a course of conduct." Hill, 530 U.S. at 721 (emphasis added). Instead, "the kind of cursory examination" of the content of a conversation to determine whether it includes "oral protest, education, or counseling" does not make a regulation content based. Id. at 721-22; see ACLU II, 466 F.3d at 796 n.12. Similarly, Berger noted that the "officer must read it" test is only "evidence that the regulation is content-based . . . not dispositive" of it. Berger, 569 F.3d at 1052 n.22. Given the clear instructions in Hill and Berger, the "officer must read it" test is limited to those situations where an officer must conduct something more than a cursory examination of the content of a communication, such as where the officer must thoroughly review the communication to evaluate its "substantive message" or "idea expressed." ACLU II, 466 F.3d at 794, 796 n.12 (internal quotation marks omitted). Like the ordinance upheld in Hill, the Redondo Beach ordinance regulates broad categories of ...


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