United States Court of Appeals:[br]City Did Not Violate Civil Rights of Christian Evangelists in Enforcement of Noise Control Measures and Permitting Scheme on Public Streets and Parks

In Rosenbaum v. City and County of San Francisco, (— F.3d —, 2007 WL 1239246, 07 Cal. Daily Op. Serv. 4685, C.A.9 (Cal.), Apr. 30, 2007)), the United States Court of Appeals recently considered a claim by two Christian evangelists that their civil rights were violated by the City and County of San Francisco’s (“City’s”) enforcement of a noise ordinance and permitting scheme designed to protect citizens from unreasonably loud speech and music. The court denied the plaintiffs’ claim and affirmed judgment in favor of City.

Facts

Since 1978, Plaintiffs Lawrence Rosenbaum and Eric Livingston, staff members of a non-profit charity organization, have preached a Christian evangelical message in City’s streets and parks using amplified sound, including use of a “maxi-mouse” amplifier and loudspeaker. City’s Police Code contains a time, place, and manner restriction prohibiting “amplified speech and music” that is “unreasonably loud, raucous, jarring or disturbing to persons of ordinary sensibilities,” but also contains a permitting scheme by which individuals or groups whose amplified sound might exceed prohibited levels may apply for permits. The City police commissioner has discretion to issue permits for a variety of purposes including public affairs interests.

In September 1996, Plaintiffs filed a lawsuit in district court, claiming violation of their civil rights under 42 U.S.C. § 1983, and seeking an injunction prohibiting City from enforcing its allegedly “unlawful” permit procedures and noise ordinances. Among other things, Plaintiffs claimed City had engaged in viewpoint discrimination and prior restraint in violation of Plaintiffs’ First Amendment rights; selective permit issuance and ordinance enforcement in violation of Plaintiffs’ equal protection rights; and violation of Plaintiffs’ rights of free speech and religion under the California Constitution. After lengthy pre-trial wrangling — including a previous appeal and reversal of a judgment entering summary judgment in favor of City — the district court conducted a bench trial in 2004. In January 2005, it entered an order denying Plaintiffs’ claims, and Plaintiffs appealed.

Decision

The appeals court first addressed Plaintiffs’ attempt to include within the scope of their claim alleged discrimination that occurred during the years after the lawsuit was filed. Although the court agreed that it should consider such later conduct “to the extent it bore on any alleged pattern or police misconduct,” it limited the scope of Plaintiffs’ action to only those events occurring within the one-year, “statute of limitations” period before the date Plaintiffs filed their complaint. The court found that Plaintiffs had not tried until late in the litigation to formally supplement their complaint to include the later events, and that City had not otherwise consented to try the case on that basis.

The court next rejected Plaintiffs’ argument that City had unevenly enforced the noise ordinance, in violation of Plaintiffs’ equal protection rights, by selectively issuing permits or by stopping Plaintiffs from using amplified sound while leaving other users undisturbed. Plaintiffs failed to present any evidence that City in fact had issued permits to groups of a similar size at similar times and locations while Plaintiffs were denied permits, and thus could not show discriminatory effect in the manner permits were issued, the court said. Plaintiffs also failed to show discriminatory failure to enforce the noise ordinance against similarly situated individuals or groups: City’s evidence showed that its enforcement efforts were based on responding to citizen complaints about loud and non-permitted activities, and Plaintiffs produced no evidence they were in fact “shut down” by City officers for any activity for which they had obtained a permit. The court found the evidence showed City’s enforcement for non-permitted activity was irregular at best against Plaintiffs and other, similarly situated performers; and even the post-complaint evidence that Plaintiffs submitted did not show a “pattern” or “policy” of discrimination, the court said. As such, Plaintiffs’ equal protection argument failed.

Plaintiffs also failed to establish that City had engaged in “viewpoint discrimination,” i.e., the exclusion of a particular viewpoint on an issue from a public forum, a practice that is impermissible under the First Amendment. The court held that on its face the City ordinance imposed only content-neutral, and therefore constitutionally valid, restrictions. It also found unsupported by evidence the Plaintiffs’ arguments that City nonetheless violated the First Amendment when it allegedly (1) gave effect to an improper “heckler’s veto” by responding only to noise complaints initiated by citizens who disagreed with the content of Plaintiffs’ Christian message, and then stopping Plaintiffs from preaching; (2) exercised “unbridled discretion” in issuing or refusing to issue permits, and used “excessive volume” as a pretext when the real reason for permit denial was the content of Plaintiffs’ message; and (3) lacked probable cause to arrest Plaintiffs for disturbing the peace when police officers’ motivation was disagreement with the content of Plaintiffs’ speech.

The “heckler’s veto” argument failed due to a lack of evidence that any of the police officers who responded to complaints about Plaintiffs knew about or agreed with the views of any of the complainants. In addition, the record showed that officers regularly informed Plaintiffs that they could continue to preach as long as they lowered the volume of their amplifier, thus demonstrating City was more concerned with controlling unacceptable noise levels than with the content of Plaintiffs’ message.

As to the claim of “unbridled discretion,” the court found that City’s Police Code specifically provides guidelines for the police commissioner to follow in issuing permits, resulting in “guided discretion”; further, Plaintiffs presented no evidence that City officials were motivated by anything other than the desire to maintain reasonable noise levels in deciding whether to grant or deny a permit. The charge of “unbridled discretion” also was weakened by the fact that Plaintiffs’ on many occasions applied for and received permits at various sites. Finally, the court rejected Plaintiffs claim that officers lacked probable cause to issue citations for disorderly conduct in light of evidence showing that the two incidents in question involved Plaintiffs engaging in non-permitted activity, and two complainants who signed citizens’ arrest cards after Plaintiffs refused requests to lower their volume. The evidence was such that a “prudent person in the position of the officers” would have believed Plaintiffs were disturbing the peace with the “specific intent to annoy,” and thus supported a finding of probable cause, the court stated.

The court also found City had not engaged in prior restraint simply because it considered, as a factor in the denial of some permit applications, the fact that Plaintiffs had not complied with conditions attached to a number of previous permits. Plaintiffs’ past misconduct was considered only in conjunction with determining the compatibility of Plaintiffs’ amplified speech with other interests in the proposed permit area, the court said, and was not the sole reason for permit denial.

Addressing Plaintiffs’ claim that City’s conduct violated the California Constitution, the court agreed that the California Constitution is more expansive in its protection of free speech rights than is the U.S. Constitution. However, the court said, even the state Constitution allows content-neutral, time, place, and manner restrictions on speech. The City ordinance in question is both content-neutral, and incorporates reasonable enforcement mechanisms, the court said. The court therefore concluded City had not discriminated against Plaintiffs in either the manner it issued permits or in the way it enforced the noise ordinance, and affirmed the trial court’s denial of relief.

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