Yeakle v. City of Portland

322 F.Supp.2d 1119

Angelique YEAKLE and Teresa Sheffer, Plaintiffs, v. CITY OF PORTLAND and Pioneer Courthouse Square of Portland, Inc. Defendants.

No. Civ. 02-1447-HA.

United States District Court, D. Oregon.

February 26, 2004.

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Edward Johnson, Marc E. Jolin, Portland, Oregon, for Plaintiffs.

William W. Manlove, Harry Auerbach, City Attorney's Office, Portland, Oregon, for Defendants.

OPINION AND ORDER

HAGGERTY, Chief Judge.

On October 25, 2002, plaintiffs filed this complaint under 42 U.S.C. § 1983 alleging violations of their civil rights. Plaintiffs' Amended Complaint asserts that, on its face and as applied to them, Portland City Code (PCC) 20.12.265 is unconstitutional because it deprives plaintiffs of rights to freedom of speech and expression guaranteed by the First Amendment, and of rights to procedural and substantive due process guaranteed by the Fourteenth Amendment. Plaintiffs seek declaratory relief and money damages. On July 14, 2003, the parties filed Cross-Motions for Summary Judgment (Docs.# 30, 33). These motions are currently before the court.

FACTUAL BACKGROUND

On April 22, 2002, plaintiffs were collecting signatures in Pioneer Courthouse Square (Square) regarding the use of medical marijuana. Plaintiff Yeakle was carrying a sign in support of her cause. She decided to go to the nearby Starbucks to get a cup of coffee and placed the sign on the "Rain Man" statute in the Square. Yeakle contends that she did not hand the sign to plaintiff Sheffer because Sheffer, who was in a wheelchair, had her assistance animal's leash in one hand and a clipboard for signatures in the other.

When Yeakle returned, Portland Police Officer Mace Winter and Portland Patrol Inc. (PPI) Officer Elmer Button approached plaintiffs. Officer Winter issued Yeakle a citation for $300 for violating PPC 20.12.030 ("Advertising and Decorative Devices").¹ Officer Button then issued both plaintiffs Notices of Exclusion from Pioneer Courthouse Square, O'Bryant Park, and the South Park Blocks for thirty days. The exclusion ordinance states in pertinent part:

"[A]ny peace officer ... may exclude any person who violates any provision of this Code, any City ordinance, any of the laws of the State of Oregon, any ordinance adopted by the Tri-County Metropolitan Transportation District of Oregon (Tri-Met) governing any Tri-Met facility in any park, or any rule or regulation duly made and issued by the Commissioner In Charge of the Bureau of Parks or by the City Council from any City park for a period of not more than 30 days.... A person receiving such notice may appeal to the Code Hearings Officer ... within 5 days of receipt of the exclusion notice, unless extended by the Code Hearings Officer for good cause shown ... At any time within the 30 days, a person receiving such notice may apply in writing to the Commissioner In Charge of the Bureau of Parks for a temporary waiver from the effects of the notice for good reason."

PCC 20.12.265.

Plaintiffs were excluded from the Square, Ankeny Plaza, and the South Park Blocks for 30 days. Plaintiffs allege that these exclusions prevented them from collecting signatures and having their message heard in these public places in violation of their rights under the First and Fourteenth Amendments. Plaintiffs attempted to appeal their exclusions but were told that their appeal was not timely. Plaintiffs did not seek a temporary waiver of their exclusions. Yeakle went to traffic court to contest the $300 fine. Judge Harold Blank found her guilty of violating PCC 20.12.030 but reduced her fine to zero.

STANDARDS

1. Summary Judgment

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if factual material exists for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. Assuming there has been sufficient time for discovery, summary judgment should be entered against a "party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548.

Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party; and (3) the court must assume the truth of direct evidence set forth by the nonmoving party if it conflicts with direct evidence produced by the moving party. T.W. Elec. Serv. v. Pac. Elec. Contractors, 809 F.2d 626, 630 (9th Cir.1987). When different ultimate inferences can be reached, summary judgment is not appropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir.1981).

The issue of material fact required by Rule 56 to entitle a party to proceed to trial does not need conclusive resolution in favor of the party asserting its existence. Rather, all that is required is sufficient evidence supporting the claimed factual dispute to require a trier of fact to resolve the parties' differing versions of the truth at trial. Id. At the summary judgment stage, the judge does not weigh conflicting evidence or decide credibility. Those determinations are the province of the factfinder at trial. Id., see also Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 410 (9th Cir.1996) (on a motion for summary judgment, the court does not weigh the evidence or determine the truth of the matter asserted, but decides only whether there is a genuine issue for trial).

2. 42 U.S.C. § 1983

42 U.S.C. § 1983 creates a cause of action against a person who, while acting under the color of state law, deprives another of guaranteed constitutional rights. It is a vehicle whereby plaintiffs can challenge the actions of government officials. There is no respondeat superior liability under § 1983; there must be a showing of personal participation in the alleged deprivation. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 691-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

To establish § 1983 liability against a municipality, plaintiffs must show: deprivation of constitutional rights by the government that had a custom or policy amounting to at least a deliberate indifference to plaintiffs' constitutional rights, and that the custom or policy was the moving force behind the constitutional violation. Blair v. City of Pomona, 223 F.3d 1074, 1079 (9th Cir.2000).

ANALYSIS

a. First Amendment: Applied Challenge

The First Amendment prohibits Congress from making any law that abridges the freedom of speech. U.S. Const. Amend. I. The Fourteenth Amendment makes this protection applicable to all the states. U.S. Const. Amend. XIV; Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). In order to demonstrate a violation of the First Amendment under § 1983, plaintiffs must prove that defendants' actions chilled or deterred plaintiffs' freedom of speech and such deterrence was a substantial or motivating factor in defendants' conduct. Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300-01 (9th Cir.1999).

The first step in the analysis is to determine whether plaintiffs' speech was protected as contemplated by the First Amendment. If plaintiffs were engaged in protected speech, the second step is to identify the nature of the forum. The third and final step is to determine whether defendants' justification for excluding plaintiffs from the forum was constitutional. See Cornelius v. N.A.A.C.P. Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Because this is a First Amendment challenge, defendants bear the burden of showing that the ordinance is constitutionally warranted. Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981).

First, both parties agree that plaintiffs had a First Amendment right to solicit signatures in the Square. Second, the Square is a public forum. As a public forum, plaintiffs' speech may not be restricted, even in a content-neutral manner, unless the restriction is narrow and necessary to serve a substantial governmental interest. N.A.A.C.P. v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir.1984); see also Gerritsen v. City of Los Angeles, 994 F.2d 570, 576 (9th Cir.1993) ("public parks ... represent the quintessential public forum....").

Third, plaintiffs argue that defendants cannot show that excluding them from the parks furthered an important or substantial governmental interest. Where a content-neutral regulation,² as applied punishes conduct that is interwoven with speech activity, the regulation is justified if: (1) the government is constitutionally authorized to regulate the conduct; (2) the regulation serves a substantial governmental interest; (3) the governmental interest is not related to the suppression of speech; and (4) any incidental burden on speech is no more than necessary. City of Erie v. Pap's A.M., 529 U.S. 277, 296, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000).

It is well settled that the government may legitimately exercise its police powers to advance esthetic objectives. Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S....