835 F. Supp. 2d 849
E.D. Cal.2011Background
- Occupy Fresno and individuals filed 42 U.S.C. § 1983 claims against Fresno County officials challenging several FCCO ordinances as facially and as-applied restrictions on assembly and speech at Courthouse Park.
- Plaintiffs sought declaratory relief, injunctive relief, and damages; a TRO and preliminary injunction were sought to prohibit enforcement and arrests at Courthouse Park.
- The court found a likelihood of success on two claims and granted the injunction in part, addressing facial challenges to specific permit and handbill provisions.
- Key ordinances at issue include FCCO §§ 13.20.020, 13.20.030, 13.20.060(C)/(K), and 13.24.010(B)(4); the court conducted content-neutrality analysis and scrutiny under intermediate or strict standards as applicable.
- Younger abstention was raised by Defendants, but the court held there were no ongoing state proceedings to defer to, so abstention did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Younger abstention applies. | Younger abstention is improper as no state proceedings have begun. | Court should abstain under Younger. | Younger abstention inappropriate; court resolves the case. |
| Whether FCCO §§ 13.20.020 and 13.20.030 are unconstitutional on their face or as applied. | The 10-person public meeting threshold and permit requirement are not narrowly tailored. | Permits are valid time/place/manner controls serving safety and orderly use. | Unconstitutional on both facial challenges for not being narrowly tailored; as-applied challenge not established sufficiently. |
| Whether FCCO § 13.20.060(C) (loitering restrictions) and § 13.20.060(K) (camping permit) are constitutional on their face or as applied. | 20/24-hour presence ban and discretionary camping permit violate the First Amendment and are not sufficiently narrowed. | Regulations regulate time/place/manner with objective standards and serve safety. | Facial challenge to 13.20.060(C) fails; as-applied challenge not proven; 13.20.060(K) challenged but not sustained. |
| Whether FCCO § 13.24.010(B)(4) (handbill ban) is unconstitutional on its face or as applied. | Total ban on handbills is a broad prior restraint lacking substantial government interest and is not narrowly tailored. | Some regulation is permissible; discretion is limited and the ordinance has some legitimate aims. | Facial and as-applied challenges succeed; handbill ban unconstitutional as overbroad and not narrowly tailored. |
Key Cases Cited
- Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006) (permits and open spaces in public fora; tailoring of permit rules)
- Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (advance notification must be limited; solo performers not required to obtain permits)
- Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) (75-person threshold for permit; narrowly tailored in public spaces)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (U.S. 1983) (content-neutral time/place/manner regulation standard )
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time/place/manner regulation requires narrow tailoring)
- F.C.C. v. League of Women Voters of Cal., 468 U.S. 364 (U.S. 1984) (content neutrality and regulation focus)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (U.S. 2002) (content-based vs content-neutral distinctions)