Ruffino v. City of Puyallup

377 F.Supp.3d 1205

Roy RUFFINO, Plaintiff,

v.CITY OF PUYALLUP, Defendant.

CASE NO. C18-5381 BHS

United States District Court, W.D. Washington, at Tacoma.

Signed March 29, 2019

Fred Diamondstone, Seattle, WA, for Plaintiff.

Adam Rosenberg, Kathleen X. Goodman, Williams Kastner & Gibbs, Seattle, WA, Joseph N. Beck, Shawn E. Arthur, City of Puyallup Puyallup City Attorney's Office, Puyallup, WA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE, United States District Judge

This matter comes before the Court on Plaintiff Roy Ruffino's ("Ruffino") motion for partial summary judgment, Dkt. 56, and Defendant the City of Puyallup's ("City") renewed motion for summary judgment, Dkt. 59. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants Ruffino's motion in part and denies it in part and grants the City's motion in part and denies it in part for the reasons stated herein.

I. PROCEDURAL AND FACTUAL BACKGROUND

Ruffino claims that the City's implementation of "pedestrian safety zones" outside two entrances of the Washington State Spring and Fall Fairs violates his free speech rights under the federal and state constitutions. Dkt. 2. The pedestrian safety zones are delineated by yellow lines painted on the public sidewalk. The safety zone in front of the "Blue gate" entrance and exit to the fairgrounds includes a 121-foot strip in front of the Fair's entrance and exit that covers a width of the sidewalk directly adjacent to the highway, as well as a similar 97-foot strip of sidewalk along the opposite side of the street. This area is illustrated in the aerial photograph below:

Dkt. 10 at 7.

The safety zone in front of the "Gold gate" includes a 72.5-foot strip on the street corner in front of the entrance and on all of sidewalk corners surrounding the intersection. See Dkt. 10 at 7. This safety zone is demonstrated in the following aerial photograph:

Dkt. 10 at 7.

In both locations, the safety zones cover the width of the city sidewalks. The width of these safety zones is illustrated in the image below:

Dkt. 18 at 4. Although there is paved open space immediately adjacent to the safety zones at both the Gold or Blue gates (as depicted in the photograph of the Blue gate above), that area is owned by the Fair, a private non-profit corporation, that prohibits petitioning activity on its premises except for at specifically located ten-by-ten-foot booths that must be reserved for a designated four-day period. Dkt. 11 at 4; Dkt. 11-1 at 12. See also , Initiative 172 (Fair Play for Washington) v. W. Washington Fair , 88 Wash. App. 579, 945 P.2d 761 (1997).

The contested Executive Order provides in relevant part:

During the four days of the Washington State Spring fair in April, nothing shall obstruct, impede, block, hinder, hamper, prohibit, slow, delay or otherwise interfere with pedestrian traffic in the pedestrian safety zones. In addition, no object, article, item, property or any other thing shall be placed, situated, positioned, located, erected, maintained or kept within the pedestrian safety zones. Furthermore, no event, performance, function, show or act shall take place or occur within the pedestrian safety zones. Moreover, no activity that does, or is likely to, obstruct, impede, block, hinder, hamper, prohibit, slow, delay or otherwise interfere with pedestrian traffic in the pedestrian safety zones, shall take place or occur within the pedestrian safety zones.

Dkt. 20-2 at 2–3 (emphasis added).¹ It also includes factual findings on crowding and describes the parameters of the pedestrian safety zones. The parties have not indicated that the language changed in any material way for the Fall fair.

On April 19, 2018, during the Spring Fair, Ruffino was conducting his petitioning activity in the pedestrian safety zone outside of the Blue gate when he was approached by City police officers who asked him to move out of the safety zones. No force was used to remove Ruffino. The encounter is documented by several videos. Ruffino claims that the City officers violated his rights by instructing him to leave the pedestrian safety zone. He also claims that the zones are too large and are enforced for an unnecessary amount of time.

On May 14, 2018, Ruffino filed his complaint and commenced this lawsuit. Dkt. 1. On May 16, 2018, Ruffino amended his complaint as a matter of course. Dkt. 2.

On August 7, 2018, the Court issued an order denying Ruffino's motion for a preliminary injunction, Dkt. 10, and granting Ruffino's motion to continue, Dkt. 28, as to his claims against the City and denying it as to his claims against individually named defendants. Dkt. 51. In the same order, the Court also granted the City's motion for summary judgment, Dkt. 16, as to § 1983 liability for individually named defendants and denied it as to claims against the City. Dkt. 51. On January 10, 2019, Ruffino moved for partial summary judgment. Dkt. 56. Also on January 10, 2019, the City renewed its motion for partial summary judgment. Dkt. 59.² On January 28, 2019, the parties responded. Dkts. 63, 67. On February 1, 2019, the parties replied. Dkts. 72, 76.

II. DISCUSSION

Ruffino seeks partial summary judgment in this case on four issues. Dkt. 56 at 1–2. First, that the City has failed to show empirical evidence supports the restrictions at all, second, that the restrictions are unsupported on weekdays as opposed to weekends, third, that the restrictions at the Gold gate should not include the area west of the west crosswalk at 9th and Meridian, and fourth, that the restrictions at the Blue gate should include only the area that is six feet north of the light pole on the west side of the street. Id. The City seeks a complete grant of summary judgment on all of Ruffino's claims. Dkt. 59 at 4.

A. Summary Judgment Standard

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson , 477 U.S. at 254, 106 S.Ct. 2505 ; T.W. Elec. Serv., Inc. , 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc. , 809 F.2d at 630 (relying on Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 888–89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

B. Regulating Speech in a Public Forum

The dispute in this case deals with restricted access to portions of public sidewalk designated as pedestrian safety zones during the Spring and Fall fairs. Ruffino challenges the pedestrian safety zones under both the First Amendment and Article 1, Section 5 of the Washington State Constitution. Neither the First Amendment nor Article 1, Section 5"guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron v. Int'l Soc'y for Krishna Consciousness, Inc. , 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) ; Bering v. SHARE , 106 Wash.2d 212, 222, 721 P.2d 918 (1986) (en banc). Even in traditional public forums, like public sidewalks, the government may place "reasonable time, place, or manner restrictions" upon all expression, whether written, oral, or manifested by conduct. Clark v. Cmty. for Creative Non-Violence , 468 U.S. 288, 298, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) ; United States v. Grace , 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).

Gathering signatures to qualify an initiative for the ballot is core political speech. Meyer v. Grant , 486 U.S. 414, 421–22, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). The government may regulate political speech in public fora as to the content's time, place, and manner as "may be necessary to further significant governmental interests." City of Chicago v. Mosley , 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). An ordinance regulating the time, place, and manner of signature-gathering is constitutional if (1) it is content...