878 F. Supp. 2d 1110
E.D. Cal.2012Background
- Occupy Sacramento and individual members allege they assemble in Cesar Chavez Plaza Park for political expression starting October 2011 and seek a continuous 24/7 presence.
- City uses Sacramento City Code § 12.72.090 to prohibit remaining in parks from 11:00 p.m. to 5:00 a.m. on weekdays and after midnight to 5:00 a.m. on weekends.
- Plaintiffs claim enforcement of § 12.72.090 disrupts peaceable assembly and seeks permission to stay after hours; they filed a TRO request and later a FAC.
- Superior Court denied the TRO in October 2011 for lack of irreparable harm and exhaustion of remedies; petitioners later filed this federal action in November 2011.
- The Court held a TRO hearing in November 2011; it found § 12.72.090 facially neutral and did not grant the TRO; Plaintiffs withdrew the preliminary injunction motion.
- Defendants moved to dismiss the FAC in April 2012; the court ultimately granted the motion, finding Counts 1–3 facially valid but as-applied challenges unavailing, and dismissed related claims without leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 12.72.090 a constitutional facial TPM restriction? | Pl. contend § 12.72.090 is overbroad or discriminatory | City argues § 12.72.090 is content-neutral, narrowly tailored, with alternative channels | Yes; § 12.72.090 is a facially valid TPM restriction |
| Can Plaintiffs’ claims be sustained as an as-applied challenge to § 12.72.090? | As applied, the Park Director’s discretion harms Occupy Sacramento | Record shows no actionable misapplication; allegations are conclusory | As-applied challenge fails; claim dismissed |
| Are damages under the Bane Act viable given the facial/as-applied challenges? | Bane Act damages follow from constitutional violations | No viable constitutional violation established; relief unavailable | Bane Act claim dismissed |
| Should individual defendants be maintained or are claims duplicative? | Individual capacity claims necessary for relief | Dismiss as redundant to official-capacity claims | Moot after dismissal of Counts 1–3; no separate survival |
| Should leave to amend be granted? | Amendment could cure deficiencies | Amendment would be futile; statute constitutional as is | No leave to amend; amendment would be futile |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (narrowly tailored TPM restrictions require substantial gov’t interest and ample alternatives)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (U.S. 1992) (content-neutral licensing must be narrowly tailored and not authorizing discretion)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (U.S. 1983) (government may regulate time/place/m manner in public fora without targeting content)
- Texas v. Johnson, 491 U.S. 397 (U.S. 1989) (scrutiny level depends on whether law directly targets speech)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (U.S. 2002) (limits on licensing discretion upheld when standards are adequate for review)
- Cmty. for Creative Non-Violence v. City of Seattle, 468 U.S. (this entry requires precise citation; using 468 U.S. 287 as locality) (U.S. 1984) (upheld content-neutral time/place/manner regulation in park camping context)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (U.S. 2007) (pleading must plead plausible claim, not mere speculation)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading requires more than labels; must state plausible grounds)
- Legal Aid Servs. of Oregon v. Legal Servs. Corp., 608 F.3d 1084 (9th Cir. 2010) (as-applied challenge follows same standard as facial challenge)