In Long Beach Area Peace Network v. City of Long Beach, (— F.3d —, 2008 WL 1722825, C.A.9 (Cal.), April 15, 2008), the United States Court of Appeals considered a challenge by a loosely organized group of peace activists to a city’s permitting ordinance after the city sought payment of administrative fees imposed after a march and rally organized by the group. The Court of Appeals found that the district court erred in finding that the entire ordinance is unconstitutional, but agreed that portions of the ordinance are unconstitutional.
Facts
The Long Beach Area Peace Network (“Peace Network”) is a group of peace activists that is loosely organized and does not have an office, organizational phone or e-mail, or insurance. On February 15, 2003, the Peace Network sponsored a rally and protest march. Before the event, a member of the Peace Network, Dr. Eugene Ruyle, submitted an application for a special event permit as required by Long Beach Municipal Code § 5.60. The City of Long Beach (“City”) approved the permit. The march took place on public streets along a route suggested by City. Between 1,000 and 1,500 people attended the event, including several elected officials. The permit application had a hold harmless clause and a provision that the applicant would be responsible for costs incurred by City for use of City personnel or equipment. However, Ruyle asked for and received a waiver of the permit application fee and the departmental services charges.
On March 20, 2003, the United States launched an assault on Baghdad. The Peace Network, in anticipation of that assault, had already organized another march and rally to take place on March 22. Ruyle had submitted a letter to City on March 18 describing an anticipated “spontaneous event” that would occur on March 22. Under the municipal code, a “spontaneous event” does not require a permit, but 24-hour advance notice of the event is required. Ruyle had indicated in his earlier correspondence with City that the March rally would be at least twice as big as the February rally. City granted permission to conduct the march and rally, but imposed conditions on the route of the march and location of the rally. City also informed Ruyle that the estimated departmental charges for services such as police, public works, and parks and recreation would be $7,041. The letter from City included a schedule to pay the departmental charges in four equal installments over the next year. Ruyle and other members of the Peace Network signed the letter to indicate acceptance of the conditions, but a handwritten notation on the last page stated that the signers reserved the right to challenge the total amount of charges. Ruyle paid the first installment on March 22.
The March 22 march lasted approximately one hour and concluded with a rally at Bixby Park. Approximately 1,000 people participated in the event, but no elected officials joined the rally. After the March rally, Ruyle asked City to waive the event-related charges, but City denied his request. After Peace Network members failed to make payments, City filed a lawsuit in state court against the members who had signed the agreement. The state court granted City a judgment in the amount of $5,901.
The Peace Network filed a lawsuit in federal district court challenging the constitutionality of § 5.60. The district court found that § 5.60 constitutes an unconstitutional restraint on speech and assembly. City appealed.
Decision
The Court of Appeals found that the district court erred in finding that § 5.60 is unconstitutional in its entirety. Although the Court of Appeals found that four provisions of § 5.60 challenged by the Peace Network are unconstitutional, it found five other challenged provisions are not unconstitutional.
The Long Beach permitting ordinance is found in the Long Beach Municipal Code at § 5.60. Section 5.60 requires that groups must obtain permits from City to hold “special events.” Permits for special events that will not involve expressive activity require at least 60 days advance notice. For special events that will involve expressive activity, between three and ten days notice is required, depending on where the event will be held. Some events are exempt from the special event permit requirement, including spontaneous assemblies, parades, and demonstrations, which involve expressive activity and are occasioned by events that came into public knowledge within five days of the event.
The City Manager must issue a permit for a special event if certain criteria are satisfied, but may deny or revoke a permit if certain other criteria are met. Under § 5.60, a person or group obtaining a permit must (1) agree to hold harmless and indemnify City and its employees and officers, (2) in some circumstances, must obtain insurance, and (3) pay a permit fee and departmental services charges to City, unless the fees and charges are either funded or waived by the City Council. Departmental service charges are billed as the actual costs incurred by City to provide services in connection with the event, but do not include any costs incurred to provide police protection to protect groups engaged in expressive activity.
In the case of spontaneous events, organizers must provide at least 24 hours notice. The City Manager may deny permission to hold an event based on the same criteria as a special event. An organization who wants to hold a spontaneous event does not have to pay a permit application fee, but may be required to pay departmental services charges, unless the City Council waives or funds the charges.
The Peace Network challenged nine features of § 5.60. The Court of Appeals held that some of the challenged features were constitutional. For example, the Peace Network claimed that certain provisions of § 5.60 that distinguish expressive activity from other activity, are unconstitutional because they are content-based. Section 5.60 provides that expressive activity is “conduct, the sole or principal object of which is the expression, dissemination or communication by verbal, visual, literary or auditory means of opinion, views or ideas. . . . includ[ing], but . . .not limited to, public oratory and the distribution of literature.” However, the provisions of § 5.60 that treat expressive activity differently actually treat expressive activity more favorably than non-expressive conduct. The Court concluded that the sections of § 5.60 that treat expressive activity more favorably are not impermissibly content-based.
The Court also found that the provision of § 5.60 that allows the City Manager to impose certain conditions on permits are constitutional. The conditions which may be imposed include conditions that are necessary to coordinate multiple uses of public property, to assure preservation of public property, to protect safety of persons and property, and to control traffic. This provision does not give the City Manager “unbridled discretion” to impose conditions in violation of the First Amendment. However, the Court concluded that there may be a situation where this provision could be found to be unconstitutional as applied by the City Manager to a particular person or group seeking a permit.
Section 5.60’s provision that allows the City Manager to obtain proof of the indigent status of a permit applicant seeking to waive fees and charges is constitutional. The definition of indigency contained in § 5.60 is based on California’s welfare code and is objective and content-neutral. The City Manager does not have unbridled discretion to make a decision on who qualifies for an indigency exception and also, the applicant has the right to appeal the Manager’s decision.
Section 5.60 also authorizes the City Manager to waive the insurance requirement if he or she determines that the event does not pose a “substantial or significant public liability or property exposure for the City.” There is an exception to the insurance requirement for events involving expressive activity where the organizers agree to either (1) indemnify and hold harmless City and its employees and officers, or (2) agree to redesign or reschedule the event in response to specific risks identified by City. The Court concluded that § 5.60 does not afford the City Manager unbridled discretion to exempt a permit applicant from the insurance requirement and is not unconstitutional.
Finally, the court determined that the provision of § 5.60, which allows for a misdemeanor penalty when a person intentional violates § 5.60 is not unconstitutional. The court, however, found four provisions of § 5.60 are unconstitutional.
First, the court found that a portion of § 5.60, which contains the definition of a special event is unconstitutional. The definition of a special event includes, among other things, an organized activity that involves 75 “or more persons conducted by a person for a common or collective use, purpose, or benefit which involves the use of, or has an impact on, public property or facilities and which may require the provision of city public services in response thereto.” The court concluded that this provision is unconstitutional because it is not narrowly tailored to serve a substantial governmental interest. The definition is not confined to events in public places and may include events where the only impact on City service would be litter control. City’s interest in litter abatement is not sufficient to justify a prior restraint on expressive activity by requiring a permit.
The court also found that the provisions of § 5.60 which deal with spontaneous events are unconstitutional because they are not sufficiently tailored and do not provide sufficient alternative means of communication. Organizers of spontaneous events do not have to obtain a permit, but they do have to provide at least 24-hours advance notice. However, the City Manager is allowed to place “reasonable time, place and manner restrictions” on a spontaneous event and may also deny permission to hold such an event based on the same criteria used for a special event. The court found the regulation of spontaneous event is unconstitutional here because (1) it requires 24-hours notice “irrespective of whether there is any possibility that the event will interfere with traffic flow;” and (2) it “fails to provide ample alternative means of communication for people wishing to participate in spontaneous expressive events.”
The hold-harmless and indemnification clauses are also unconstitutional. Section 5.60 requires a person or organization holding an event “to hold harmless and indemnify the City for harm arising out of the permitted activity.” These provisions apply to all permits, unlike the previously discussed insurance provision. The court found the hold-harmless and indemnification clauses are not narrowly tailored to serve a substantial governmental interest because they (1) do not contain an exclusion for losses suffered by City “that are occasioned by the reaction to the permittees’ expressive conduct,” (2) require the permittees’ to hold City harmless for liability of City to the permittees; and (3) require permittees to hold City harmless for liability caused by the conduct of the event to third parties, including harm to third parties by counterprotesters or hecklers.
Finally, the court found that the provision allowing City, at its own discretion, to either fund or waive the departmental services charges and the permit fee is unconstitutional because it allows the exercise of unbridled discretion. The ordinance does not specify any criteria to be used by the City Council to determine whether to fund or waive the charges and fees.
The Court of Appeals remanded the matter back to the district court to determine whether the unconstitutional provisions of § 5.60 are severable from the remainder of the ordinance.