Leatherman v. Watson

OSCAR LEATHERMAN, et al., Plaintiffs, v. STEVE WATSON, et al., Defendants.

Case No. 17-cv-05610-HSG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 21, 2019

ORDER DENYING MOTION TO DISMISS FIRST AMENDED COMPLAINT

Re: Dkt. No. 11

Defendants City of Eureka, Eureka Police Department, and Interim Police Chief Watson move to dismiss the First Amended Complaint filed by Plaintiffs Oscar Leatherman and Kelly Pifferini. Dkt. Nos. 11, 11-1 ("Mot."). For the reasons articulated below, the motion is DENIED.

I. BACKGROUND

Subsection (D) of Eureka Municipal Code Section 130.06 (the "Ordinance") prohibits solicitation with the purpose of obtaining an immediate donation or a sale of goods or services in specified areas. Dkt. No. 1-1 ("EMC"). These areas include median strips, within 200 feet of an intersection, within 15 feet of banks and ATMs, within 35 feet of driveways to shopping centers and business establishments, and at gasoline stations. Id.

Mr. Leatherman is an unemployed homeless individual who depends on the financial contributions he receives while busking. Dkt. No. 1 ("FAC") ¶¶ 5, 46. He plays guitar and sings on sidewalks with a sign that reads "Good Karma $1." Id. ¶¶ 48-50. He has twice been cited for busking by the BevMo sign on the intersection of Broadway and West Fifteenth Street. Id. ¶¶ 54, 56.

Mr. Pifferini is also an unemployed homeless individual who relies on panhandling in Eureka for his survival. Id. ¶¶ 6, 60. He holds various signs, including signs that read "it'$ a bit cold," and "donations." Id. at ¶¶ 61. He has been cited at least five times, and he claims that on three of those occasions he was holding political signs protesting the Ordinance. Id. ¶ 67-69. Mr. Pifferini also says he has been warned by EPD officers while panhandling in locations not encompassed by the Ordinance. Id. at ¶ 71.

On September 28, 2017, Plaintiffs filed suit against Defendants under 42 U.S.C. section 1983 for violations of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Id. Plaintiffs Leatherman and Pifferini challenge the Ordinance as an unconstitutional content-based restriction on speech. Id.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).

"Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a 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, 556 U.S. 662, 678 (2009).

In reviewing the plausibility of a complaint, courts "accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, Courts do not "accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

If dismissal is appropriate under Rule 12(b)(6), a court "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (quotation marks and citation omitted).

III. DISCUSSION

Defendants move to dismiss the FAC for failure to state a claim, challenge Mr. Leatherman's Article III standing, and seek dismissal of Defendant Watson under the doctrine of qualified immunity.¹ Mot. at 2. The Court addresses each argument in turn.

A. First Amendment Claims

Defendants claim that Plaintiffs fail to allege facts sufficient to support facial or as-applied challenges to the Ordinance. Mot. at 5-10.

1. Facial Challenge

Defendants contend that Plaintiffs have failed to allege that the text of the Ordinance is facially invalid. Mot. at 5-6. Defendants claim that the Ordinance is valid on its face because: (1) the Ordinance applies only to non-public fora, where First Amendment free speech protections do not extend; (2) Plaintiffs have not alleged that the Ordinance is a content-based law; and (3) even if the Ordinance were content-based, Plaintiffs have not alleged that the Ordinance would not survive strict scrutiny. Mot. at 7-10. The Court finds none of these arguments persuasive.

a. Public Fora

Defendants contend that the areas covered by the Ordinance are non-public fora, and as such require Plaintiffs to allege that "the Ordinance is unconstitutional because it is either unreasonable or it is not viewpoint neutral." Mot. at 8.

"[T]he government need not permit all forms of speech on property that it owns and controls." Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). When a government entity restricts speech on its property, those restrictions are evaluated through a "forum based" approach. Id. "[R]egulation of speech on government property that hastraditionally been available for public expression is subject to the highest scrutiny. Such regulations survive only if they are narrowly drawn to achieve a compelling state interest." Id. Regulation of speech in nonpublic fora "need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view." Id. at 679. Government property is considered a nonpublic forum if the property does not "by tradition or designation serve as a forum for public communication." Wright v. Incline Vill. Gen. Improvement Dist., 665 F.3d 1128, 1134 (9th Cir. 2011) (internal quotation marks omitted).

Here, the fora in question include median strips, driveways to business establishments, public transportation stops, intersections, and banks and their immediate surrounding areas. FAC ¶ 36; EMC § 130.06(D)(1)-(6). Streets, sidewalks, and traffic medians are traditional public fora. See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 945 (9th Cir. 2011) (noting that for purposes of a free speech challenge, public streets and sidewalks are "the archetype of a traditional public forum"); Cutting v. City of Portland, Maine, 802 F.3d 79, 83 (1st Cir. 2015) (identifying median strips as traditional public fora). Plaintiffs allege that Mr. Pifferini has been cited by EPD officers for violating the Ordinance on public sidewalks and medians near the entrance of the local mall. FAC ¶¶ 64-69. Plaintiffs further allege that Mr. Leatherman has been cited on the sidewalk by an intersection. FAC ¶¶ 54, 56. As to the other areas mentioned in the Ordinance, Defendants' contend that they are nonpublic "because common sense dictates that these locations are not areas by tradition or designation that serve as a forum for public communication." Mot. at 8. This unsupported contention does not render Plaintiffs' allegations insufficient to state a claim. Plaintiffs have sufficiently alleged that the Ordinance targets speech in public fora.²

b. Content-Based vs. Content-Neutral

Defendants contend that "the FAC contains no allegations that the Ordinance is notviewpoint neutral." Mot. at 9.

"Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2226 (2015). Conversely, if a regulation is content-neutral, the government may limit "the time, place, and manner of expression," so long as the regulation is "narrowly tailored to serve a significant government interest, and leave[s] open ample alternative channels of communication." Comite de Jornaleros, 657 F.3d at 940 (internal quotation marks omitted).

Under the Ordinance, "solicitation" means "to ask, beg, request, and/or panhandle using the spoken, written, or printed word, or bodily gestures, signs or other means with the purpose of obtaining an immediate donation of money or other thing of value or soliciting the sale of goods or services." EMC § 130.06(B); FAC ¶ 33. "[G]overnment regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed," and a speech regulation may be content-based "even if it does not discriminate among viewpoints within that subject matter." Reed, 135 S.Ct. at 2227, 2230.

Plaintiffs plausibly allege that the Ordinance distinguishes types of speech based on the message expressed. See FAC ¶ 33; Reed, 135 S.Ct. at 2230. Several courts have interpreted Reed to apply to anti-solicitation ordinances and found that such ordinances are content-based. See, e.g., Norton v. City of Springfield III, 806 F.3d 411, 412-13 (7th Cir. 2015) (holding that a city's anti-panhandling ordinance was not content-neutral); McLaughlin v. City of Lowell, 140 F.Supp.3d 177, 185-86 (D. Mass. 2015) (finding a city ordinance banning aggressive panhandling was a content-based restriction on speech); Thayer v. City of Worcester, 144 F.Supp.3d 218, 233-34 (D. Mass. 2015) (finding that an anti-solicitation ordinance was content-based and subject to strict scrutiny); Browne v. City of Grand Junction, 136 F.Supp.3d 1276, 1290-91 (D. Colo. 2015) (finding a city's provision that prevented solicitation at specified...