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Cuviello v. City of Vallejo

United States Court of Appeals, Ninth Circuit

December 10, 2019

Joseph Patrick Cuviello, Plaintiff-Appellant,
v.
City of Vallejo; M. Cutnick, City of Vallejo Police Officer; Claudia Quintana, City of Vallejo City Attorney, Defendants-Appellees.

          Argued and Submitted February 8, 2019 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding D.C. No. 2:16-cv-02584-KJM-KJN

          Julie A. Murray (argued) and Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C., for Plaintiff-Appellant.

          Katelyn M. Knight (argued), Deputy City Attorney; Claudia Quintana, City Attorney; Office of the City Attorney, Vallejo, California; Adam W. Hofmann and Josephine K. Mason, Hanson Bridgett LLP, San Francisco, California; for Defendants-Appellees.

          Before: Richard A. Paez and Marsha S. Berzon, Circuit Judges, and Gary Feinerman, [*] District Judge.

         SUMMARY [**]

         Civil Rights

         The panel reversed the district court's denial of plaintiff's motion for a preliminary injunction seeking to enjoin the enforcement of the City of Vallejo's requirement that individuals obtain permits before they use sound-amplifying devices within the City.

         Plaintiff sought to use a bullhorn so that he could amplify his voice during weekend protests of alleged animal mistreatment at Six Flags Discovery Park in Vallejo, where the noise of the park hampers his ability to spread his message. Concerned that the City would enforce the permit requirement against him, plaintiff filed this action, contending that the permit requirement set forth in Chapter 8.56 of the Vallejo Municipal Code violates the First Amendment of the United States Constitution and the Liberty of Speech Clause of the California Constitution.

         The panel first held that the case was not moot even though the City of Vallejo had recently amended Chapter 8.56. The panel held that the gravamen of plaintiff's complaint and the irreparable harm that plaintiff alleged remained unaffected by the amendments.

         The panel held that district court abused its discretion by concluding that plaintiff was unlikely to succeed on the merits of his claim that the permit requirement imposed an unconstitutional prior restraint on public speech. The panel held that under California law, because Section 8.56.030 establishes a permit requirement in advance of public speech and bans an instrumentality of speech absent a permit, it imposes a prior restraint. The panel concluded that although the permit requirement furthered the City's significant interests, it was not narrowly tailored because it covered substantially more speech than necessary to achieve those interests.

         The panel held that the district court abused its discretion by failing to recognize that a police officer's threat of criminal sanctions against plaintiff constituted irreparable harm. The panel held that as long as Section 8.56.030 remains in effect, the threat of enforcement against plaintiff will persist, chilling his exercise of free speech rights. Under the circumstances, the panel held that plaintiff's delay in bringing his action did not significantly undercut his showing of irreparable harm.

         The panel held that the district court abused its discretion in finding that the balance of equities tipped in the City's favor and that halting the enforcement of Chapter 8.56 would not be in the public interest.

         Dissenting, Judge Feinerman stated that plaintiff filed his suit one year after he had last been threatened with enforcement of the challenged ordinance, and he then waited five months after filing suit to move for a preliminary injunction. In Judge Feinerman's view, this lengthy and unjustified delay showed that plaintiff did not suffer irreparable harm and therefore disentitled him to preliminary injunctive relief.

          OPINION

          PAEZ, Circuit Judge.

         The City of Vallejo requires individuals to obtain permits before they use sound-amplifying devices within the City. Joseph Cuviello seeks to use a bullhorn so that he can amplify his voice during weekend protests of alleged animal mistreatment at Six Flags Discovery Park ("Six Flags") in Vallejo, where the noise of the park hampers his ability to spread his message. Concerned that the City would enforce the permit requirement against him, Cuviello filed this action, contending that the requirement violates the First Amendment of the United States Constitution and the Liberty of Speech Clause of the California Constitution. Cuviello moved for a preliminary injunction to enjoin the enforcement of the City's permit system, which the district court denied. We reverse and remand.[1]

          I.

         A.

         Cuviello protests abuse and mistreatment of animals by circuses and other entertainment entities. For over a decade, Cuviello has called attention to the treatment of animals kept in captivity and used in attractions at Six Flags. Between 2006 and 2014, Cuviello regularly demonstrated at Six Flags, displaying signs and video footage of animal mistreatment as well as distributing information to patrons as they entered the park. In May 2014, however, Park Management Corporation-which owns Six Flags-filed a lawsuit to enjoin demonstrators from protesting on its property and eventually secured a permanent injunction to that effect.[2] Since May 2014, Cuviello and his fellow protestors have moved their demonstrations to the public sidewalk along Fairground Drive, which borders Six Flags.

         Because both the park entrance and the parking lot are on private property and set back from the nearest public sidewalk, Cuviello and his fellow advocates could no longer physically approach patrons to distribute information and discuss the treatment of animals at Six Flags. To overcome the deafening sound of rollercoasters and other park attractions from the sidewalk, Cuviello began using a bullhorn to amplify his voice and increase the chances that patrons could hear his message from inside their cars.

         Chapter 8.56 of the Vallejo Municipal Code governs the use of sound-amplifying or loudspeaking devices, including bullhorns. Vallejo, Cal., Municipal Code, tit. 8, ch. 8.56. When Cuviello first began using a bullhorn at protests in 2015, Section 8.56.101 of Chapter 8.56 provided:

It is unlawful for any person . . . to operate or cause to be operated any sound amplifying or loudspeaking device . . . upon any public street, parkway, thoroughfare, or on privately or publicly owned property, without first obtaining a permit from the chief of police to do so.

         Vallejo, Cal., Municipal Code, § 8.56.101 (1997). To obtain a permit to use a sound amplifying device, individuals were required to complete and file an application with the chief of police and pay a fee. The application required the applicant's name, contact information, and basic information about the event for which the permit would be used. Id. § 8.56.020. The chief of police was required to act on a sound amplification permit within ten days of receiving the application. Id. § 8.56.030.

         After obtaining a sound amplification permit, the applicant was required to comply with certain regulatory conditions. The sound amplifying device could be used only between 10 a.m. and sunset; the device could not be used within 100 yards of a hospital, clinic, animal care facility, school, church, courthouse, or public library; there could be no amplification of profane, lewd, indecent, or slanderous speech; and the device could not be operated beyond a fifteen-watt level. Id. In addition to these restrictions on permit-holders, Chapter 7.84 of the Vallejo Municipal Code prohibits as a public nuisance "any loud, unnecessary, and unusual noise which disturbs the peace or quiet of any neighborhood or which causes discomfort or annoyance to any reasonable person of normal sensitiveness residing in the area." Vallejo, Cal., Municipal Code, § 7.84.010 (1997).

         Cuviello first became aware of the permit requirement and related restrictions in June 2015, when a fellow demonstrator relayed that a police officer had told him bullhorns could not be used without a permit. Cuviello approached the officer to discuss his use of a bullhorn, and the officer showed him the text of Chapter 8.56. Cuviello did not use his bullhorn for the rest of that day.

         In future demonstrations, Cuviello tried to comply with Chapter 8.56's permit and other requirements. He did not apply for a permit for a July 4th protest, to avoid putting Six Flags and the City of Vallejo on notice of the demonstration. He did apply for a permit for a demonstration that occurred a few days later but never received a reply from the Vallejo Police Department. Because he feared being arrested, Cuviello did not use a bullhorn at either demonstration.

         Cuviello conducted his own legal research over the subsequent months and concluded that Chapter 8.56-and in particular, Chapter 8.56's permit requirement-was an unconstitutional prior restraint on speech. In September 2015, he e-mailed his findings to Claudia Quintana, the City Attorney of Vallejo, and informed her that he would no longer comply with Chapter 8.56's permit requirements. In response, City Attorney Quintana justified Chapter 8.56's requirements as permissible time, place, and manner restrictions. Unpersuaded, Cuviello again began using his bullhorn at demonstrations outside Six Flags without a permit.

         Initially, Cuviello's bullhorn use went unchallenged. But at a demonstration in October 2015, a City of Vallejo police officer approached Cuviello and informed him that he could not use his bullhorn without a permit. Cuviello asked if he would be arrested for continuing to use the bullhorn, and the officer told him that he would only confiscate the bullhorn "as evidence of a crime." Following this warning, Cuviello did not use his bullhorn at any further demonstrations at Six Flags.

         B.

         In October 2016, Cuviello filed this action under 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments to the U.S. Constitution and various California constitutional and statutory free speech protections. See U.S. Const. amend. I, XIV; Cal. Const. art 1, § 2a; Cal. Civ. Code § 52.1. Cuviello alleged that Chapter 8.56's permit system was unconstitutional, both on its face and as applied to his actions.

         Cuviello challenged the facial validity of Chapter 8.56 on three grounds: first, the permit requirement constituted an impermissible prior restraint on speech in a public forum; second, Chapter 8.56 was unconstitutionally vague because it did not set a deadline to apply for a permit or define "amplifying devices and loudspeakers"; and third, the condition that permit-holders refrain from amplifying profane, lewd, indecent, or slanderous speech vested improper discretion in police officers to regulate speech based on its content. Cuviello also contended that the City of Vallejo's threatened enforcement of the permit requirement against him constituted a prior restraint.

         In March 2017, Cuviello moved for a preliminary injunction to enjoin enforcement of Chapter 8.56's permit system. The district court denied the preliminary injunction, concluding that Cuviello had not established a likelihood of success on the merits of any of his claims. The district court rejected Cuviello's arguments that Chapter 8.56 was an improper prior restraint, void for vagueness, or impermissibly content-based, and instead held that Chapter 8.56's requirements could be justified as permissible time, place, and manner restrictions on speech in a public forum. The district court further noted that even if Cuviello was likely to succeed on the merits, he had not shown a risk of irreparable harm, that the balance of hardships tipped in his favor, or that the public interest favored a preliminary injunction. Cuviello timely appealed.

         After both parties filed their appellate briefs, the City of Vallejo amended Chapter 8.56. The City Council added legislative findings justifying the regulation of sound amplification devices, see Vallejo, Cal., Municipal Code § 8.56.010 (2016), and moved the permit requirement to Section 8.56.030. Section 8.56.030 now states that any person who wishes to use a sound amplifying device "upon any public street, parkway, thoroughfare, or on privately or publicly owned property" must obtain a permit from the City of Vallejo Chief of Police. See id. ยงยง 8.56.030, 8.56.090. The new section also eliminates the permit-fee requirement, defines "sound amplifying devices," shortens the processing time for permit approval to three days, includes ...


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