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Hightower v. City & County of San Francisco

United States District Court, N.D. California

December 24, 2014

MITCH HIGHTOWER, et al., Plaintiffs,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants

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For Oxane " Gypsy" Taub, Plaintiff: D. Gill Sperlein, LEAD ATTORNEY, The Law Office of D. Gill Sperlein, San Francisco, CA; Lawrence G. Walters, PRO HAC VICE, Walters Law Group, Longwood, FL.

For George Davis, Plaintiff: D. Gill Sperlein, LEAD ATTORNEY, The Law Office of D. Gill Sperlein, San Francisco, CA.

For City and County of San Francisco, San Francisco Police Department, Defendants: Tara M. Steeley, LEAD ATTORNEY, San Francisco City Attorney's Office, San Francisco, CA.

OPINION

EDWARD M. CHEN, United States District Judge.

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I. INTRODUCTION

Plaintiffs Oxane " Gypsy" Taub and George Davis have filed a class action against Defendants the City and County of San Francisco, two members of the Board of Supervisors (in their official capacities only), and the clerk of the Board of Supervisors (in her official capacity only), alleging that the enforcement of a San Francisco ordinance that bars nudity on, e.g., public streets and sidewalks violates their First Amendment rights. Currently pending before the Court is Defendants' motion to dismiss.

II. FACTUAL & PROCEDURAL BACKGROUND

At issue in this case is the validity of a San Francisco ordinance which bars nudity on, e.g., public streets and sidewalks. Plaintiffs initiated this lawsuit as a facial challenge before the ordinance was even adopted. The Court granted Defendants' motion to dismiss Plaintiffs' initial complaint, with leave to amend. See Docket No. 26. Subsequently, the Court granted Plaintiffs' request for leave to amend its complaint again. See Docket No. 83. Plaintiffs filed a second amended complaint, challenging the constitutionality of the ordinance as-applied. Docket No. 84. Defendants now move to dismiss the second amended complaint. See Docket No. 86.

The ordinance at issue, Section 154 of the San Francisco Police Code (the Ordinance) provides as follows:

(a) The Board of Supervisors finds that a person's public exposure of his or her private parts invades the privacy of members of the public who are unwillingly or unexpected exposed to such conduct and unreasonably interferes with the rights of all persons to use and enjoy the public streets, sidewalks, street medians, parklets, plazas, public rights-of-way, transit vehicles, stations, platforms, and transit system stops, (2) creates a public safety hazard by creating distractions, obstructions, and crows that interfere with the safety and free flow of pedestrian and vehicular traffic, and (3) discourages members of the public from visiting or living in areas where such conduct occurs. The Board of Supervisors has enacted the provisions of this Section 154 for the purpose of securing and promoting the public health, safety, and general welfare of all persons in the City and County of San Francisco.
(b) A person may not expose his or her genitals, perineum, or anal region on any public street, sidewalk, street median, parklet, plaza, or public right-of-way as defined in Section 2.4.4(t) of the Public Works Code, or in any transit vehicle, station, platform, or stop of any government operated transit system in the City and County of San Francisco.
(c) The provisions of this chapter shall not apply to (1) any person under the age of five years or (2) any

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permitted parade, fair, or festival held under a City or other government issued permit. Notwithstanding this exemption, all persons participating in or attending permitted parades, fairs or festivals shall comply with Section 1071.1(b)(2) of the San Francisco Police Code.[1]
(d) Any person who violates this Section 154 shall be guilty of an infraction and upon conviction thereof such person shall be punished by a fine not to exceed one hundred dollars ($100) for a first violation, and not to exceed two hundred dollars ($200) for a second violation within twelve months of the first violation.
(e) Upon the third or subsequent conviction under this Section 154 within twelve months of the first violation, such person shall be guilty of an infraction or a misdemeanor. The complaint charging such violation shall specify whether, in the discretion of the District Attorney, the violation is an infraction or a misdemeanor. If charged as an infraction, upon conviction, the violator shall be punished by a fine not to exceed $500. If charged as a misdemeanor, upon conviction, the violator shall be punished by a fine not to exceed $500 or by imprisonment in the County Jail for a period of time not to exceed one year or by both such fine and imprisonment.
(f) This Section shall not supersede or otherwise affect existing laws regulating nudity under the San Francisco Municipal Code, including but not limited to the Park Code, Police Code, and Port Code. But in the event of a conflict between this Section 154 and Police Code 1071.1(b)(2), this Section 154 shall prevail.
(g) A violation of this Section does not require lewd or sexually motivated conduct as required under the indecent exposure provisions of California Penal Code Section 314 or for purposes of California Penal Code 290(c).

S.F. Police Code § 154.

Plaintiffs contend that the above ordinance, as applied by Defendants, violates their rights as protected by the First Amendment. Plaintiffs claim that they are individuals who engage in expressive political activity while they are nude. See Docket No. 84, Second Amended Complaint, (" SAC" ) ¶ ¶ 10-16. For example, Ms. Taub and Mr. Davis claim to have engaged in two nude protests at City Hall, expressing a pro-body and anti-§ 154 message. See SAC ¶ ¶ 10-12. At both of these events, Plaintiffs claim that the San Francisco police enforced § 154 by issuing citations and taking protesters into custody. See SAC ¶ ¶ 10-14. Plaintiffs claim that on three occasions Defendants have not enforced the ordinance against others despite obvious violations. See SAC ¶ ¶ 22-23. Plaintiffs also allege that the San Francisco Police Department (SFPD) have improperly deviated from the parade permitting procedures provided by Article 4 of the Police Code. ¶ ¶ 10-18. For example, Plaintiffs alleges that on December 5, 2013 the SFPD denied Ms. Taub's application for an event permit on the grounds that " public nudity violates SF Police Code 154." SAC ¶ 16. San Francisco Police Code, Article 4, section 369, entitled " Grounds for denial of application for parade permit," provides:

The Chief of Police shall approve an application for a parade permit unless

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he or she determines, from a consideration of the application, or such information as the Chief of Police may otherwise obtain, or both, that:
(a) The Chief of Police has reasonable cause to conclude that the applicant or any person or persons participating in the parade will, in connection with that activity, cause physical injury to persons or substantial damage to property; or
(b) The conduct of the event will substantially interrupt the safe and orderly movement of other traffic contiguous to its route; or
(c) The conduct of the event will require the diversion of so great a number of police officers to properly police the line of movement and the areas contiguous thereto as to prevent normal police protection to the rest of the City and County of San Francisco; or
(d) The concentration of persons, animals and vehicles at the assembly areas of the event will unduly interfere with proper fire and police protection of, or ambulance service to, areas contiguous to such assembly areas; or
(e) The conduct of the event will interfere with the movement of fire-fighting equipment en route to a fire; or
(f) The conduct of the event will substantially obstruct or interfere with any construction or maintenance work scheduled to take place upon or along the public streets; or
(g) Another permit application has been received, and has been or may be approved, to sponsor a parade at the same time and place requested by the applicant, or so close in time and place that undue confusion or congestion would result, or the Police Department would bear an unreasonable burden in meeting the request for services by more than one applicant; or
(h) The parade will not move from its point of origin to its point of termination in four hours or less, or such other reasonable time limit as set by the Chief of Police in light of all relevant circumstances; or
(i) The applicant fails to provide the information requested on the application form or to provide Police Department staff, when requested to do so, with further information in order to enable the Chief of Police to verify the information required on the application form; or
(j) The applicant fails to provide proof of approval from other governmental departments or agencies when such approval is legally required; or
(k) The applicant fails or refuses to comply with any condition reasonably imposed on the granting of the permit in order to insure the safety of event participants, members of the Police Department or the public, or to insure the orderly flow of traffic, or to avoid the likelihood of harm to public or private property, which conditions may include a change in the route of the event; provided, however, that nothing in this Section shall be deemed to authorize the Chief of Police to impose conditions which unreasonably interfere with the right of free speech; or
(l) Other circumstances exist which make it likely that the event would significantly interfere with ordinary activities in the City and County of San Francisco.

SFPC, Art. 4 § 369(a)-(l).

On November 14, 2012, Defendants filed its initial complaint, asserting that the Ordinance

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was facially unconstitutional and seeking a preliminary injunction. Docket No. 1. Among other claims, Plaintiffs alleged that the Ordinance impermissibly restrained their First Amendment right to engage in expressive nude conduct. Id. On January 29, 2013, the Court dismissed Plaintiffs' pre-enforcement challenge with prejudice. Docket No. 26. In doing so, the Court determined that " absent any other context to suggest that nudity is intended to convey a particular message" the act of being nude in public is not protected by the First Amendment. Hightower v. City & Cnty. of San Francisco, 2013 WL 361115, at *7 (N.D. Cal. Jan. 29, 2013). However, the Court also provided Plaintiffs with leave to amend " to plead an as-applied challenge." Id. at *12. Subsequently, Plaintiffs filed this as applied challenge. See SAC.

In their second amended complaint, Plaintiffs assert the following claims:

(1) That the Ordinance, as applied, violates their First Amendment rights because it (a) restricts core political speech; (b) compels speech; (c) infringes upon their right to petition[2] and (d) acts as an impermissible prior restraint. See SAC ¶ ¶ 24-27.
(2) That the Ordinance at issue violates their First Amendment rights because the SFPD enforces the Ordinance in a viewpoint discriminatory manner. SAC ¶ 26.
(3) That the Ordinance, as applied, is unconstitutionally ...

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