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Cuviello v. City of Vallejo

United States District Court, E.D. California

April 28, 2017

JOSEPH P. CUVIELLO Plaintiff,
v.
CITY OF VALLEJO, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         On April 27, 2017, this action was before the undersigned to address plaintiff Joseph Cuviello's (“plaintiff”) motion for preliminary injunction. (ECF No. 18.) Defendants City of Vallejo, Claudia Quintana, and M. Cutnick (collectively “defendants”) filed a written opposition to plaintiff's motion and plaintiff filed a reply. (ECF Nos. 19, 20.) Plaintiff appeared on his own behalf. Attorney Frank Splendorio appeared on behalf of defendants. The undersigned has fully considered the parties' briefs, appropriate portions of the record, and oral arguments. For the reasons that follow, the court recommends that plaintiff's motion for preliminary injunction be denied.

         I. Factual Allegations and Procedural Background

         Plaintiff alleges that he engaged in a series of peaceful demonstrations concerning animal rights at the Six Flags Discovery Kingdom in Vallejo, California. (ECF No. 1 [“Compl.”].) During some of these protests, plaintiff utilized an electric bullhorn to amplify his voice, and a television displaying video footage of animals being abused by humans with sound projecting through its speakers. (Id.) During a protest on June 20, 2015, plaintiff used an electric bullhorn during a demonstration and was told by a fellow demonstrator that a City of Vallejo police officer had informed him that individuals could not use a bullhorn without first obtaining a permit. (Id. ¶ 27; Declaration of Joseph Cuviello in Support of Motion for Preliminary Injunction [“Cuviello Decl.”] ¶ 14.) Plaintiff subsequently approached the officer about the need for a permit, and the officer informed him that Vallejo Municipal Code Chapter 8.56 makes it unlawful to use any sound amplifying or loudspeaking device without first obtaining a permit. (Compl. ¶ 28; Cuviello Decl. ¶ 15.) Plaintiff alleges that he decided to not use his bullhorn at the June 20, 2015 demonstration after speaking with the officer because he did not want to be arrested. (Compl. ¶ 30.)

         On July 14, 2015, plaintiff faxed an application to obtain a permit to use a sound amplifying or loudspeaking device to the Vallejo Police Department, four days prior to a demonstration he planned to attend, but plaintiff never received a reply before that demonstration. (Cuviello Decl. ¶ 18.) Plaintiff did not use a bullhorn at that demonstration, which occurred on July 18, 2015, out of fear of being arrested. (Id.)

         Between July 4, 2015, and September 11, 2015, plaintiff researched Chapter 8.56 and case law regarding the legality of using a bullhorn for free speech purposes and formed a belief that Chapter 8.56 was unconstitutional. (Cuviello Decl. ¶ 19.) On September 11, 2015, plaintiff sent an email to the Vallejo City Attorney's Office contesting the constitutionality of Chapter 8.56 on First Amendment grounds, and defendant Claudia Quintana, an attorney at the Vallejo City Attorney's Office, replied that that section constituted a permissible time, place, and manner restriction. (Compl. ¶¶ 38-40; Cuviello Decl. ¶¶ 22-24.)

         On September 15, 2015, plaintiff attended a demonstration at Six Flags Discovery Kingdom and utilized a bullhorn. (Cuviello Decl. ¶ 25.) Plaintiff was approached by a City of Vallejo police officer during this demonstration, but the officer never commented on plaintiff's use of the bullhorn, let alone ask whether plaintiff had a permit to use that device. (Id.)

         Plaintiff attended another demonstration at Six Flags Discovery Kingdom on October 31, 2015. (Compl. ¶ 42; Cuviello Decl. 26.) During this demonstration, plaintiff used an electronic bullhorn to project his voice and a television projecting video and audio of people hitting elephants. (Id.) Also during this demonstration, defendant Cutnick approached plaintiff and asked plaintiff whether he had a permit to use the bullhorn. (Id.) Plaintiff replied that he did not and asked Cutnick whether he would be arrested if he continued to use the device. (Id.) Cutnick responded by stating that plaintiff would not be arrested, but that the bullhorn would be confiscated as evidence of a crime. (Id.) Plaintiff also asked whether the television would be confiscated, and Cutnick responded that it would not, because it did not constitute sound amplifying or loudspeaking device within the meaning of Chapter 8.56. (Compl. ¶ 43; Cuviello Decl. ¶ 27.)

         Between November 21, 2015, and June 18, 2016, plaintiff attended three additional demonstrations at Six Flags Discovery Kingdom. (Compl. ¶ 44; Cuviello Decl. ¶¶ 28-30.) Plaintiff alleges that he did not use a bullhorn during these demonstrations based on what defendant Cutnick had told him on October 31, 2015. (Id.) However, other demonstrators used electronic bullhorns during each demonstration without a permit to engage in that activity, but the City of Vallejo police officers present during those events did not attempt to stop those demonstrators. (Id.)

         Based on these allegations, plaintiff asserts the following five causes of action: (1) violations of the First Amendment's Free Speech Clause and Fourteenth Amendment Equal Protection Clause pursuant to 42 U.S.C. § 1983; (2) conspiracy to violate the First and Fourteenth Amendments of the United States Constitution and Article 1 Section 2(a) of the California Constitution; (3) violation of Article 1 Section 2(a) of the California Constitution; (4) facial and as-applied challenges to Vallejo Municipal Code Chapter 8.56; and (5) violation of California Civil Code Section 52.1.[1] (Compl. ¶¶ 61-96.)

         On March 27, 2017, plaintiff filed his present motion for preliminary injunction. (ECF No. 18.) Through this motion, plaintiff requests the court to issue a preliminary injunction “enjoining the enforcement of Chapter 8.56, Section 8.56.010 [of the City of Vallejo Municipal Code] on the grounds that it impermissibly violates the First Amendment to the United States Constitution and the California Constitution's Liberty of Speech Clause.” (Id. at 10.)

         II. Legal Standard

         A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must demonstrate that: (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Boardman v. Pacific Seafood Grp., 822 F.3d 1011, 1020 (9th Cir. 2016) (quoting Winter, 555 U.S. at 20). “‘[A]t an irreducible minimum, the moving party must demonstrate a fair chance of success on the merits, or questions serious enough to require litigation.'” Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2008) (quoting Dep't of Parks & Recreation v. Bazaar Del Mundo, Inc., 448 F.3d 1118, 1124 (9th Cir. 2006)). Where a party has not shown likelihood of success on the merits, or at least the existence of serious questions going to the merits, the court need not address the remaining Winter elements. See Pimentel v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012).

         III. Discussion[2]

         A. Likelihood of Success on the Merits

         In his complaint, plaintiff asserts five separate causes of action. However, the potential success of each of those five causes of action hinges on the success of plaintiff's facial and as-applied challenges to Vallejo Municipal Code Chapter 8.56 on First Amendment free speech grounds that form the basis of plaintiff's fourth cause of action.[3] For instance, plaintiff's third cause of action is based on allegations that defendants' enforcement of Chapter 8.56 violates Article 1, Section 2(a) of the California Constitution, which is co-extensive with the First Amendment to the United Constitution for purposes of analyzing plaintiff's challenges to Chapter 8.56. See Kuba v. 1-A Agr. Ass'n, 387 F.3d 850, 857-58 (9th Cir. 2004) (“California's ‘formulation of the time, place, and manner test was fashioned from a long line of United States Supreme Court cases.' . . . We therefore apply federal time, place and manner standards.” (citation omitted).) Similarly, plaintiff's first and second causes of action are based on the alleged unconstitutionality of Chapter 8.56. Finally, plaintiff's fifth cause of action under California Civil Code § 52.1 is based on allegations that defendants interfered with plaintiff's free speech rights under the United States Constitution and California Constitution by attempting to enforce Chapter 8.56. Accordingly, as an initial matter, the court addresses the likelihood of success on the merits of plaintiff's facial and as-applied challenges to Chapter 8.56 on First Amendment grounds in order to assess globally whether there exists a likelihood of success on the merits for any of plaintiff's causes of action.[4]

         A facial challenge to an ordinance or other legislative act is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [ordinance] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). The fact that an ordinance “might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, ” except in the limited context of an overbreadth challenge under the First Amendment, which plaintiff does not appear to assert as part of his First Amendment challenge to Vallejo Municipal Code Chapter 8.56.[5] Id.

         “An ‘as-applied' challenge alleges that the restriction on speech is ‘unconstitutional as applied to the litigant's particular speech activity, even though the law may be capable of valid application to others.' ” Kuba v. 1-A Agr. Ass'n, 387 F.3d 850, 856 ...


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