Hightower v. City of S.F.

MITCH HIGHTOWER, et al., Plaintiffs,

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

No. C-12-5841 EMC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Dated: January 29, 2013

ORDER GRANTING DEFENDANTS'

MOTION TO DISMISS, AND DENYING

PLAINTIFFS' MOTION FOR A

PRELIMINARY INJUNCTION

(Docket Nos. 5, 15)

Plaintiffs Mitch Hightower, Oxane "Gypsy" Taub, George Davis, and Russell Mills 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 recent passage of a San Francisco ordinance that bans nudity on, e.g., public streets and sidewalks violates their constitutional rights, in particular, those protected by the First Amendment and equal protection clause. Currently pending before the Court are two motions: (1) Defendants' motion to dismiss and (2) Plaintiffs' motion for a preliminary injunction.

Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS Defendants' motion to dismiss and DENIES Plaintiffs' motion for a preliminary injunction. As discussed below, the Court concludes that the Ordinance does not conflict with state law, that Plaintiffs' facial challenge to the Ordinance based on the First Amendment lacks merit because nudity is not inherently expressive and because theOrdinance is not substantially overbroad, and that Plaintiffs' equal protection claim as pled fails to state a Fourteenth Amendment claim under the rational basis test.

I. FACTUAL & PROCEDURAL BACKGROUND

At issue in this case is the validity of San Francisco Police Code § 154 which bans nudity on, e.g., public streets and sidewalks. Plaintiffs initiated this lawsuit before the Ordinance was formally adopted. However, since the filing of the lawsuit, the Board of Supervisors adopted the Ordinance, which 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 crowds 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 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 § 154 violates their constitutional rights as protected by the First Amendment and the equal protection clause. In their complaint, Plaintiffs intimate that the Ordinance should, at the very least, include an exemption for individuals who are nude and whose nudity is combined with and related to political speech. See Compl. ¶ 40 (noting that the "[o]rdinance contains no exclusion for political speech"). Plaintiffs also claim that they are individuals who engage in expressive activity while they are nude. See Compl. ¶¶ 7-10. For example, during a City meeting held in November 2012, members of the public were given an opportunity to express their opinions on the proposed Ordinance, and Ms. Taub made comments in opposition and also disrobed at the same time. See Compl. ¶ 8.

In their complaint, Plaintiffs assert the following claims:

(1) That the Ordinance at issue is invalid because it conflicts with state law. See Compl. ¶ 32.

(2) That the Ordinance at issue violates their First Amendment rights because (a) it is overbroad and (b) "impermissibly burdens speech without being tailored to the City's stated objectives." Compl. ¶ 36.

(3) That the Ordinance violates their right to equal protection because (a) it improperly discriminates between two categories of children - those between 0-4 years and those between 5-14 years, see Compl. ¶ 48, and (b) it improperly discriminates between persons who are nude at a permitted event and those who are nude in a public place other than at a permitted event. See Compl. ¶ 44.

II. DISCUSSION

As noted above, there are two motions currently pending before the Court: (1) Defendants' motion to dismiss and (2) Plaintiffs' motion for a preliminary injunction. The issues raised in the motions have significant overlap. This is because, in order for Plaintiffs to prevail on their motion, they have to establish a likelihood of success on the merits (or at least serious questions going to the merits), and Defendants' motion to dismiss goes directly to the merits of Plaintiffs' case.² If Defendants are successful on their motion to dismiss, then Plaintiffs' motion for preliminary injunction must be denied as moot. Accordingly, the Court first addresses Defendants' motion.

A. Defendants' Motion to Dismiss

1. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although "conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). While "a complaint need not contain detailed factual allegations . . . it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); seealso Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than sheer possibility that a defendant acted unlawfully." Iqbal, 129 S. Ct. at 1949.

In their opposition, Plaintiffs suggest that Defendants' motion is not really a 12(b)(6) motion because Defendants are asking the Court to take judicial notice of facts that may not be judicially noticed - more specifically, a transcript of the November 5, 2012, special meeting of the City Operations & Neighborhood Services Committee. See Defs.' RJN, Ex. D (transcript). Contrary to Plaintiffs' argument, Federal Rule of Evidence 201 does not bar the Court from considering the transcript. As Plaintiffs note, Federal Rule of Evidence 201 does provide that the "rule governs judicial notice of an adjudicative fact only, not a legislative fact."³ Fed. R. Evid. 201(a). But, Rule 201 does not bar a court from taking notice of a legislative fact. "It simply means that notice of 'legislative facts' is left unregulated by Rule 201." Wright, et al., Fed. Prac. & Proc. § 5103.2. The Wright treatise goes on to explain that "[f]ederal courts have [in fact] judicially noticed various 'legislative facts.' Such facts are noticed when construing or applying the Constitution. Federal courts also notice 'legislative facts' when construing statutes, including...