Cpr for Skid Row v. City of Los Angeles

ROW, unincorpo an CPR FOR SKID Khan; association; Pe

rated Hamid White, Plaintiffs-Appellants,

ter ANGELES,

CITY OF LOS

Defendant-Appellee.

No. 12-55289. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Jan. 10, 2015.

Filed March facially both challenge

tiffs statute hold that applied to them. We face is not unconstitutional on its affirm, part, the decision of Because district court to that effect. apply to Plaintiffs’ properly 403 does not however, activity, reverse the district we summary judgment dismissing the court’s proceedings. action and remand for further Background I. an CPR for organization,

Plaintiffs are members, Row, Hamid Skid and two of its (collectively “CPR” Khan and Pete White (argued), Law Office of A. Sobel Carol “Plaintiffs”). in 2011 or CPR was founded Monica, CA, Sobel, Santa Carol A. rights to advocate for the who Plaintiffs-Appellants. Ange- in the area of downtown Los reside (argued), Dep- Anne Erickson Kimberly Row. is also a les known as Skid White uty City Attorney, Rittenberg, Laurie As- Angeles and of the Los founder co-director City Attorney, and Carmen A. Tru- sistant Community Action Network. tanich, City City Attorney, Angeles Los oppose CPR and its members walks Office, CA, Attorney’s Angeles, Los through neighborhood spon- the Row Skid Defendant-Appellee. City the East Association sored Central (“CCEA”). non-profit corpora- CCEA is Im- tion that administers two Business An- provement Districts downtown Los geles principal as the voice of “servefs] conjunction industrial downtown.” In with Midnight Angeles Los Mission and Before: STEPHEN REINHARDT and City Councilperson Perry, Jan the CCEA CLIFTON, Judges, R. Circuit RICHARD organizing community began DORSEY, and JENNIFER A. District neighborhood through walks Skid Row Judge.* (the “Walks”). CCEA, According officials, by public are attended Walks OPINION enforcement, judicia- law members of the CLIFTON, Judge: Circuit academics, students, ry, local business owners, question providers, and the appeal presents This social service place pub- Penal media. The take on the whether California Walks “willfully neighbor- it a misdemeanor to lic sidewalks of the Skid Row which makes and, CCEA, allow up any assembly according or hood disturb[ ] break[ ] “to for themselves and meeting participants that is not unlawful its charac- see ter, assembly challenges, through an learn about the other than windshield, experience in ... 18340 of the but from the referred to Section Code,” and interact- walking through Row] is constitutional. Plain- [Skid Elections * designation. Dorsey, The Honorable Jennifer A. U.S. Dis- Nevada, sitting Judge trict for the District of representatives, po- spoke Todd Chamberlain with ing legal with social service ob- Guild, lice, Lawyers owners.” servers from the National residents and business informing them that protestors could CPR, contrast, Members of believe demonstrate but that “if it gets to the “support[ promote[ that the ] ] Walks point when it is disturbing a lawful criminalization of homelessness and just meeting, anyone like we wouldn’t let poverty comprised only of those [are] you, anyone do we can’t let do it to communi- [the from outside of Skid Row] They protestors them.” warned the CPR, ty.” According to the Walks are they could be arrested under by police repre- officers and “dominated White, Eventually, who filming community,” sentatives of the business protest, Walk and the was arrested “exactly which are the same institutions violating LAPD for California Penal Code promoting unprecedented that are lev- after he allegedly yelled loudly less police presence, els of citations and arrests than a away foot from one of the Walk many in Skid Row that have made home- attendees. He was booked and released poor less and residents less safe and/or charged any on bail but was not with represent less stable.” The Walks “do not violation of the law. community, the interests of the low-income CPR filed a against City lawsuit of safety.” nor for public [CPR’s] vision Angeles Los asserting that California Pe- public CPR members believe that “the unconstitutional, nal Code 403 is both on participate officials who are [in Walks] applied, its face and as under the First and demeaning depersonalizing and homeless Fourteenth Amendments of the Constitu- in gain support individuals order to for analogous provisions tion and of the Cali- repressive against measures the low-in- fornia parties Constitution.1 The filed come residents of Skid Row who need summary judgment. cross-motions critical assistance.” granted City’s The district court mo- began staging protests CPR thus of the tion, holding that 403 is constitutional preparation July for the Walks. applied, both on its face and as and denied 2011, Walk, Paulson, Lieutenant Shannon summary judgment, CPR’s motions for a Angeles Department the Los Police officer preliminary injunction, declaratory re- charge in of the Central Area Safer Cities appeal. lief. Plaintiffs Row, Initiative in Task Force Skid held a Vagueness Challenge II. Void

meeting with her officers and distributed photographs particular of individuals who states, California Penal Code in engaged had in what she had deemed to be entirety: its “aggressive” previous behavior at Walks in who, Every person authority without of violation of California Penal Code 403. law, willfully up any disturbs or breaks photograph among White’s was not those assembly meeting or that is not unlawful distributed. character, assembly in its other than an or in meeting referred to Section 302 of 6, 2011, Walk, July protes-

At the CPR the Penal Code Section 18340 of the chants, tors including: shouted ‘We are Code, is of a guilty Elections misde- not resisting. This is our First Amend- meanor. drums, Right.” They ment banged also on in proximity partic- often close Walk exception The first identified 403 is ipants. Captain Lieutenant Paulson and 302 of the Penal It concerns meet- Code. Attorney Attorney CPR notified the California Gener- but the General did not challenging constitutionality al that it intervene to defend it. states, subject penalties to the criminal religious worship” and conduct is ings “for and what conduct is covered part: relevant and thus excluded from the reach intentionally disturbs Every person who “public § 403. 18340 refers to Section any assemblage disquiets meetings public for the consideration of at a religious worship tax-ex- met for that, questions,” category of worship, by profane dis- empt place of CPR, argues appears from the face of the behavior, course, byor rude or indecent type meeting encompass statute to noise, unnecessary either within the any Electors, similarly, at issue in this case. held, place meeting is or so where definition, anyone by the include near'it as to disturb the order and so- pre- over 18 who resides election lemnity meeting, guilty is of a group potential cinct. That is a vast misdemeanor.... that, again, encompasses the participants listed in exception The second participants at issue here. the one relevant to this particularly CPR, significant, argues This is because case, the Elections Code. It 18340 of § 18340 sets forth a standard for a misde- states, in entirety: from, higher meanor that is different who, threats, intimi- Every person than, un- the standard for misdemeanor violence, dations, willfully or unlawful person subject der While prevents hinders or electors from as- if penalties criminal he “will- for the con- sembling fully up” meeting, disturbs or breaks questions guilty of of sideration subject to penalties under 18340 he is a misdemeanor. “threats, intimidations, only if he uses or The Elections defines “elector” as egregious unlawful violence”—more con- any person who is a United States citi- prevent meeting duct—to hinder or years age zen of or and ... is a 18 older Thus, assembling. knowing question from of an precinct resident election least type meeting what of is covered election!, days prior 15 to an or is not a 18340, and therefore excluded from cov- resident but either] 403, erage under is critical to under- (1) He or she was a resident of this standing type exposes what of conduct living state when he or she was last person penalties to criminal territorial, within the limits of the United penal A statute must “define the or], Columbia!, States or the District of criminal offense with sufficient definiteness (2)He or she was born outside of the ordinary people can understand what United States or the District Colum- prohibited conduct is a manner that bia, parent legal guardian his or her or encourage arbitrary does not and discrimi was a resident of this state when the natory v. enforcement.” Kolender Law parent legal guardian living or was last son, 352, 357, 1855, 461 U.S. 103 S.Ct. 75 of the within territorial limits United (1983). insufficiently L.Ed.2d 903 An defi Columbia, or States the District of vagueness. nite statute is void for Id. registered he or she not previously has permissible “[Standards to vote in other state. area free vagueness are strict Elec.Code Cal. Button, v. 371 U.S. expression.” NAACP Challenge A. CPR’s 415, 432, 328, 9 L.Ed.2d 405 83 S.Ct. (1963). insufficiently for clear CPR contends that 403 is void “Laws are (1) vagueness it is not clear what are void for three reasons: To avoid because

1103 they city punishing people pillow case, for behavior council with a (2) illegal; shirt, could not have known was attached to a that read “CRA De- Communities”). subjective avoid enforcement of the laws stroys arbitrary discriminatory based on inter- plaintiff seeking “[A] to vindicate (3) officers; pretations by government his own rights may constitutional argue any chilling to avoid effect on the exercise that an unconstitutionally ordinance is of First Amendment freedoms.” United vague or impermissibly restricts a protect (9th Wunsch, v. 84 F.3d 1119 States activity.” ed Santa Monica Food Not Cir.1996). Monica, City Bombs v. Santa 450 F.3d vague upon statute abuts “[W]here (9th Cir.2006) (citations, altera sensitive areas of basic First Amendment tions, and quotation internal marks omit freedoms, operates to inhibit the exer- ted). Where, here, plaintiffs make a cise of those freedoms. mean- Uncertain facial challenge constitutional to a state ings inevitably lead far citizens steer law, must, course, “a federal court con of the unlawful than if wider zone any limiting sider construction that a state boundaries forbidden areas were court or enforcement agency prof has clearly Grayned marked.” City fered.” Vill. Flip Estates v. of Hoffman 104, 109, Rockford, 408 U.S. 92 S.Ct. side, Estates, Inc., 455 U.S. Hoffman (1972) (internal quotation 33 L.Ed.2d 494 n. S.Ct. L.Ed.2d 362 omitted). marks, footnote, and alterations (1982). upon That 403 “abuts areas of sensitive Court has inter First Amendment basic freedoms” is evi- preted only Kay, once. In re dent in the facts of in every this case and 930, 936-37, Cal.3d Cal.Rptr. statute, involving available case all of (1970), P.2d concerned the arrest and merely speech which involve not expres conviction of four engaging political speech. sive conduct but core “rhythmical clapping” and “some shouting See, e.g., Kay, In re 1 Cal.3d five or during about ten minutes” (1970) (rhyth P.2d speech congressman of a in a public park mic clapping during congressman’s a Independence Day at an celebration. The speech); Albany McMahon v. Unified California Court noted that 403 Dist., 1275, 1280-81, Cal.App.4th Sch. 104 speech protected by could be read to cover Cal.Rptr .2d (Cal.Ct.App.2002) the First Applying Amendment. the com (dumping gallons garbage of on the floor presumption legislature mon that the in during a school meeting part board of a statute, however, tended to enact valid speech problem about the of litter in the interpreted narrowly the statute more school); high City area of the v. Saraceni render it constitutional. It held that Roseville, C041085, No. 2003 WL of requires “that the defendant substantially 21363458, 2003) 13, *2 (Cal.Ct.App. at June impair[] meeting by the conduct of the (attempting city to address the council and intentionally committing acts in of violation city attorney city meeting at a council implicit usages explicit customs or or of after the public period comment had end- governance rules for of the meeting, of ed); Cruz, City v. Norse Santa 629 F.3d of knew, (9th Cir.2010) (en banc) which he or as a reasonable man 966, 970 (giving a 943, should have known.” Id. at 83 Cal. whispering silent Nazi salute and to anoth- 686, Rptr. speci 464 P.2d 142. The court city er attendee in council meet- fied that criminal im ings); sanctions could be City Angeles, Sanchez v. Los No. of (JC), 6951822, posed “only activity CV 07-5132 GHK when the defendant’s WL (C.D.Cal. 2011) *2 (attending activity’s at Oct. of itself—and not the content ambiguous despite ef sativa L. was its impairs the bis expression—substantially -at meeting.” specificity). of a Id. fective conduct 142. 464 P.2d terms, § By express 403 does construing activity in connection with “an apply In so the stat- assembly meeting did not consider or referred to in Section Supreme Court meetings and exceptions ute’s 302 of the Penal Code or Section 18340 fact, the court religious meetings. excep- It latter the Elections Code.” is the exceptions all reference to omitted by § tion for covered and in its discus- citing when the statute namely “public meetings for the consider- Nonetheless, origins.2 sion of the statute’s public questions,” ation of that is at issue the criminal conviction the court set aside argues this case. CPR there is issue, concluding that the defendants’ uncertainty type as to the did not rise to the rhythmical clapping they excluded from 403 because are cov- level of a misdemeanor §by ered legislative history turn to the We Interpretation B. Section 403 legislature’s intent in guidance as no Because state federal court excluding meetings covered construed relation expressly has by § coverage People from 403. See v. interpret we those statutes Yoshimura, 415-16, Cal.App.3d statutory rules of applying California’s (where 133 Cal.Rptr. (Cal.Ct.App.1976) Inv., T.D. construction. In re First & defendant asserted that the terms “sub Cir.2001). (9th Inc., 520, 527 253 F.3d Un in a stance” and “material” criminal stat law, the “fundamental der California task” unconstitutionally vague, ute were statutory interpretation is “to determine legislative history court considered the Legislature’s intent so as to effectuate statute, the criminal determined the stat Cornett, purpose.” People law’s legislative purpose, ute’s and found the Cal.Rptr.3d Cal.4th vague). legislative not to terms be (internal (2012) 274 P.3d 456 citations and history, although complex, shows omitted). quotation marks Where the § -403 and the other two statutes it identi plain language ambiguous of a statute is exceptions apply fies as were intended to uncertain, may “the purpose we consider types meetings: to three reli different statute, remedied, of the the evils to be gious meetings, political meetings, and all legislative history, public policy, and the meetings. other encompassing scheme the stat Originally part enacted in 1872 as (internal quotation ute.” Id. citations and Code, § first California Penal 403 had the omitted); People marks see v. Van Al 900, 911-14, public meetings, headnote “Disturbance of styne, Cal.App.3d 46 121 Cal. religious political”3 pro- other than or and Rptr. (Cal.Ct.App.1975) (consulting the 363 vided, very today’s in terms similar to legislative history finding after the marijuana of statute: definition Canna- quoted expurgated Superior an 3. Farraher v. Kern 2. The court version of See Coun of 3, 4, 5-6, Cal.App. pro ty, Dept. § the 45 187 P. 72 403: "Section 403 of Penal Code who, (the 'Every person authority (Cal.Ct.App.1919) heading the vides: without of 1872 law, up any part § willfully or of 403 "must be deemed a of of disturbs breaks version assembly meeting, the and accorded or not unlawful in its char the substance of enactment ” acter, Kay, though guilty a the same effect as written into the ... is of misdemeanor.’ 937-38, 686, and, therefore, meeting body the law” 1 Cal.3d at 83 464 of section). (alteration original). P.2d 142 in must be to fall within this 1872, 302, who, authority without of the Every person religious-meetings law, willfully up any 403, or breaks disturbs exception very similar assembly meeting, or not unlawful section,6 today’s version of that but character, than is men- other such as political-meetings exception, § was no- guilty is of tioned in Sections 59 and tably today’s different from 18340. Sec- a misdemeanor. tion under the headnote “Disturbance & Burch (Haymond misdemeanor,” stated, Code public meetings, CaLPenal of 1874).4 note to The Code Commentator’s using a very structure and standard explained coverage of 1872 Code similar to 403: the three sections as follows: Every person willfully who disturbs or 59 is a assembly specified Sec. up any public meeting breaks of electors electors, of held for the discus- meeting others, or lawfully being held for the public questions, sion of and that Sec. purpose considering public questions, of religious meeting. 302 a This section guilty is of a misdemeanor. funerals, like meet- includes and lawful

ings, corresponds with the N.Y. Pe- (1874). and CaLPenal Code This section Code, nal Sec. 473. is not predecessor historical of the political meetings current exception, Elec- (Haymond & Burch CaLPenal Code 1874).5 Stuart, tions Code however. Section People Cal.2d Cf. (1956) 18340 derived from a different section of (using P.2d Code, original specifically note from as an indi- 1872 Penal Commissioner’s intent). not, That prior legislative cation of section was ex- Compare Every person willfully to the current version of who disturbs or dis- (differences bold): quiets any assemblage people indicated of met for noise, religious worship by profane dis- who, law, Every person authority without course, rude, behavior, or indecent or willfully up any assembly or disturbs breaks noise, unnecessary either within the meeting or that is not unlawful in its char- held, place meeting where such is so or acter, assembly meeting other than an or solemnity near it as to disturb order referred to in Section 302 of the Penal meeting, guilty is of misdemeanor. Code or Section 18340 of the Elections (Haymond & Burch Cal.Penal Code Code, guilty is of a misdemeanor. 1874). Compare to the current version of (deletions by strike-through; 5. Section 473 stated: indicated bold): indicated additions who, law, Every person authority without (a) person intentionally Every who dis- willfully up any assembly disturbs or breaks disquiets any assemblage or turbs character, meeting, or not unlawful in its religious worship tax-exempt met for at a other than such as are mentioned in sec- [noise,] place worship, by profane dis- Code, guilty tions of this is course, behavior, indecent rude or of a misdemeanor. noise, any unnecessary either within the Draft of a Code for the State of New Penal held, place or so near where ("Fields Draft”) (1864). York The an- solemnity it as to disturb the order and explains notation to the Fields Draft that "The meeting, guilty of a misdemeanor specified assemblies in the sections referred punishable by exceeding a fine not one religious meetings, meetings to are electors ($1,000), by imprison- thousand dollars public questions, held for discussion of county jail period ment in a for a funerals.” Id. The California version of the exceeding year, one or both that fine and separate statutory statute does not have a imprisonment. covering incorpo- section funerals and instead The current statute also contains sections § rates funerals into 403. (b)—(f), provide additional details on which § provided: penalties § violation of 302. 6. The 1872 version of 302 for Only § § 59 was referred to and excluded coverage from 403. Sec- empted 403; “Preventing public coverage from the 58 was not heading 58 had the tion and stated: in 403 at all. meetings” mentioned who, threats, intimi- Every person happen original How it did violence, dations, willfully or unlawful §of referred to the now- 1872 version prevents or electors from as- hinders (“Disturbance extinct CaLPenal Code sembling in for the con- public but the current ver- public meetings”) questions, guilty sideration sion of 403 refers to a section identical misdemeanor. aof (“Preventing version of (1874). § 58 This is iden- CaLPenal Code public meetings”)? step The in this first in language tical to the current Elections occurred in 59 of the shift 1905 when 18340,exempted from 403. text Penal Code was amended and its wholly Purity § 41 replaced with of the short, applied §§ to 58 and 59 both Act,7 passed Elections which had been “public meetings for the consideration of the head- amended had public questions,” but the two sections had “Force, note violence or restraint used to standards for a misdemeanor. different place original influence votes” in it was a misdemeanor to hin- Under threats, public meetings, headnote “Disturbance of meeting “by such a intimi- der misdemeanor,” dations, violence,” lengthy it contained or unlawful while under and. in- “willfully prohibitions voting it a misdemeanor to on intimidation and simply (1905).8 up” meeting. or such a terference. CaLPenal Code disturb[ ] break[ ] promote prevail upon any give 7. The full title was "An Act to voter either to or election, giving any purity by regulating refrain from his vote at of elections the conduct thereof, give giving or to or refrain from his vote for support privilege and to of free any particular person persons any or at suffrage by prohibiting prac- certain acts and any employer, thereto, election. It is not lawful providing tices in relation for the paying employees salary wages his or punishment thereof.” 1893 Cal. Stat. 12. them, pay "pay due to inclose their en- velopes” upon which there is written or stated, 8. The amended in full: candidate, printed any any the name of or any directly person, It is unlawful for or mottoes, devices, arguments or indirectly, by any person himself or other threats, containing express implied, or in- behalf, of, his to make use or threaten to politi- or tended calculated to influence of, force, violence, any make use or re- opinions employees. cal or actions of such straint, or to inflict or threaten the inflic- any employer, Nor is lawful for within tion, by through any per- himself or other election, ninety days any put up or son, harm, loss, any injury, damage, or factory, workshop, otherwise exhibit in his any practice or in manner to intimidation place or other establishment or where his upon against any person, or in order to employees may working, workmen or be compel person induce or such to vote or any placard containing any hand-bill or election, threat, notice, information, voting any refrain from at or to or that in case voting any particu- any particular political party, vote or refrain from ticket of a or election, elected, person persons any organization, lar or at or on or candidate shall be person persons any at place account of such or work in will his or .establishment election, lease, person part, place or on account of such hav- in whole or in or his or ing voting any up, voted or refrained from establishment be closed or salaries any person, wages employees election. And it is unlawful for or of his workmen or be abduction, duress, reduced, threats, express or or im- or forcible or other whatever, plied, fraudulent device or contrivance intended or calculated to influence impede, prevent, political opinions or otherwise interfere or actions of his ap- employees. This section with the free exercise of the elective fran- workmen voter; induce, individuals, corporations by any compel, plies as well chise or to Special Study Commission, anything § to Although longer .59 no had Crime Final § meetings, 403’s exclusion Report do with Procedure, on Criminal Law and § the 59 was not modified to reflect 13, (1949). Recommendation at 23-24 In § change in the function of 59. The recommendation, accordance with this § § amendment of 59 thus rendered 403’s amended, § 403 was and its reference to § meetings exclusion of covered § replaced Penal Code 59 was with a ref- nonsensical, § was concerned not as 5004, § erence to Elections Code the suc- voting with at all but with inter- § to Penal predecessor cessor Code 58 and likely to problem ference. This was due 2119; §to 18340. 1949 Cal. Stat. Cal.Pe- legislature failing an error the to (1955). 1949, § § nal Code Since consider the effect of the amendment substantively.10 has not been amended § failing § §on and to amend Thus, 18340, § currently which is ex- accordingly. The error was noticed 403, § empted coverage by from is the 1915, early the Deering editors as as but 58, § successor section to which was not legislature any steps did not take to original exemption. The substance of § at that time.9 amend 59, 403, original § § exemption from 1939, 59, §§ In Penal 58 and Code longer no exists the Califor- form others, part of the among repealed were nia Codes. adoption of California’s first Elections history the face of this tortuous (“Preventing public Section 58 meet- Code. § exceptions, thing 403 and its one re- 5004, § and ings”) became Elections Code original § mains clear. The version of 403 violence, (“Force, § 59 or restraint used to exempt was enacted with the intent to vote”) split among influence Elections was § political meetings coverage by from 11584-86. See Cal. §§ 403. Code 11581-82, 1949, §§ (Deering Elec.Code 11584-86 This intent reaffirmed in when 1939). Supp. consideration, legislature, after careful § coverage chose to exclude from 403’s 1949, Finally, Special the California statutory possible section as close as Study Commission on Law Crime Criminal original exception, with the result that the study reported and Procedure “[a] § revised version of 403 excluded the same the code indicates that the reference to original as had the version of the Section 59 of the Penal Code contained in religious meetings. statute: and been to Section 403 should have Section 58 however, political meetings, As to unlike which now Section 5004 of the Elections Code,” § amending general meetings religious meetings, and recommended 403. corporation legislative any person violating mysterious ap- A comment provisions guilty peared stating of this section is of a mis- the Elections demeanor, (then 18340) violating any corporation Code section now "is prevent pre- needed to conduct which would this section shall forfeit its charter. all, (1905). taking place vent a from in- Cal.Penal Code 59 threats, cluding etc. verbal since Penal In the 1915 edition of the California Penal 403 does not deal with verbal behavior.” Cal. Code, although 1977): text of 403 still (Deering Elec.Code This Deering’s referred to annotations all comment contradicts other indications of pointed now a Penal Code which had legislative purpose exceptions previously Kay been associated with 403 in 403 and also contradicts the court's any way. Similarly, Deering's interpretation very annota- 403 as much behavior,” pertaining covering tions and not to "verbal as is clear in its analysis. §§ extended First Amendment We referred to 403. Cal.Penal Code 1915). give weight. (Deering therefore this comment little unconstitutionally vague higher thresh- ders the statute legislature

the established original disregarded excep- than the conduct the because the court old for unlawful politi- by The amended Elections exception had done. tion for assemblies covered made it a misdemean- cal-meetings statute In support position, of his by prevent meetings such or to hinder subsequent by to decisions the he cites intimidations, “threats, or unlawful vio- Appeal Courts of and federal California lence,” up” to or break but not “disturb exception. disregarded courts that also means. meetings such non-violent view, disparity Judge Reinhardt’s plain language of the statuto- between 4,03 Application to CPR’s Activi- C. Kay in ry exception interpretation and the ties in appears exception that to eliminate the language of the plain The statute apply a factual context where it should is legislative history demonstrate that its great too for citizens to understand what political meetings, not cover 408 does actually think that con- covers. We meeting at It including the issue here. is clusion assumes too much. disrupt a misdemeanor to such agree legislative We that the text and only if the only disrup 18340 and history of 403 demonstrate that it does “threats, intimidations, tion consists to assemblies of electors of the apply not unlawful violence.” §in type agree covered 18340. We also “meeting” at issue here involved the Kay that the kind of discussed in questions, namely public consideration of appear qualify would to as a meet- Row, the conditions on Skid and involved ing of electors under the Elections Code. people within broad definition of But cannot assume that the we California participate “electors.” Those invited to in Supreme Court intended its decision in the Walk were whom the CCEA Kay statutory exceptions to read the to refers to as “stakeholders” downtown § 403 out of the statute. business. As discussed below at this Kay no indication There the judg- conclusion leads us reverse party question either raised the in part ment of the district court applicability political meetings. of 403 to proceedings. remand for further appellate California courts are not re Voidr-for-Vagueness D. The Challenge quired arguments to consider or discuss Falls Short developed that were not in the briefs. People Stanley, 10 Cal.4th understanding

Based on this (1995) (not statute, though, portion we affirm the CaLRptr .2d 897 P.2d 481 reject judgment of the district court’s ing legal that if a brief not contain a does challenge ed CPR’s facial 403 as un argument with citation of authorities on “ constitutionally A facial vague. challenge made, may it points ‘court treat challenge is “the most difficult to mount waived, and pass as without consider ” Salerno, successfully.” United States v. Witkin, Procedure, (quoting ation’ Cal. 739, 745, 481 U.S. 107 S.Ct. (3d ed.1985))); § 479 Mansell v. Appeal (1987). L.Ed.2d 697 Admin., Cal.App.4th Bd. of (“[I]t Cal.Rptr (Cal.Ct.App.1994) .2d 574 opinion, expressed concurring As his function to appellate] not court’s serve [the Judge position Reinhardt takes the counsel.”). If backup appellate ... nei given the construction exception applied, Kay, party argued ther Supreme Cal.3d 464 P.2d ren- the California Court would exception in its required Premising to address the conclusion that 403 is un- be constitutionally vagueness even in a case which the facts void for opinion, based application. interpretation on an support would that statute that actually expressed by has never been Moreover, that Kay court concluded Supreme by any or court conduct of the defendants did not sub leap is a that we are prepared not to take. stantially public or impair disturb We not attribute that interpretation to will meeting. Kay Independence concerned an the California Court based on its Day in a with a public park celebration in Kay. silence We affirm the portion of a speech by congressman a who was also the district court’s decision that concluded candidate for reelection. 1 Cal.3d at 935- that not vagueness. 403 is void for 464 P.2d 142. The 83 by “rhythmical speech interrupted was Challenges III. Facial Other clapping” by protestors supported who a argues CPR also 403 is an boycott consumer of non-union table unconstitutional speech restriction on be had grapes, congressman which the de based, it narrowly cause is content is not support. clined to Id. The California Su tailored, and does not open ample leave applied § held that preme Court 403 and alternative means of communication. The the conduct did rise to the level re government “may impose reasonable re quired argument for misdemeanor. An time, place, strictions on the or manner of statutory exception based on the would protected speech, provided the restrictions exactly have led to the same result. justified are without references to con need not deal all Courts with alternative regulated speech, tent of the they are Any to the same outcome. infer routes narrowly significant tailored to serve a ence based on the failure of the decision to interest, governmental they and that leave discuss an alternative route rests on an open ample alternative channels for com unpersuasive foundation. munication of the information.” Comite de Appeal The California Courts of follow City Jornaleros de Redondo Beach v. ing Kay have not addressed the interaction (9th Beach, Redondo 657 F.3d § 403 and McMa between 18340. See Cir.2011) (en banc) (internal quotation hon, 1286-87, Cal.App.4th at 129 Cal. omitted). marks and citations Saraceni, 184; C041085, Rptr.2d No. Indeed, in WL 21363458. no case—state We “consider rule content-based federal, published unpublished—in general or or it establishes a ban on when any a court has for speech, exceptions which addressed 403 did but maintains subjects.” court construe Penal in rela certain speech Code on Glendale As id.; N.L.R.B., socs., tion to Elections 18340. See v. Ltd. F.3d (9th Cir.2003). Norse, 970, 978; Sanchez, argues 629 F.3d at CPR 403 is Kay, speech at *13. As in there is restriction on WL content-based be cause, terms, in any apply no indication of these cases that the it does not exception exceptions 403 was raised.11 covered the two happens, joined, 11-judge deci- en As one Ninth Circuit Clifton as members of an Cruz, concurring opinion, panel. City sion cited in the banc Norse v. Santa (9th Cir.2010) (en banc). application to illustrate the of Penal Code F.3d It is us, political meeting judicial § 403 to a dis- safe to infer that neither of or other activity panel, regard exception for member of the intended to cut the exception subject covered Elections Code is an out of the statute. The opinion Judge Judge that both Reinhardt and not raised at the time. time, above, place, A religious worship content-neutral identified narrowly speech of electors to consider manner restriction on is substantially if public questions. tailored it “does not burden speech necessary more than is to achieve a here, however, dis exceptions government substantial interest.... [T]he meetings, not types certain tinguish obvious, al existence of less burdensome subjects at those meet on speech certain is a relevant consideration in ternatives § 302 nor Elec ings. Neither Penal Code determining the ‘fit’between ends whether speech it pertains tions Code Berger City means reasonable.” in which They to the contexts pertain self. (9th Seattle, 1029, 1041 569 F.3d Cir. The statute is silent speech regulated. 2009) (internal citations, marks, quotation subject matter of respect with to what omitted). argues and modifications CPR spoken at such speech may may or not be narrowly that 403 is not tailored because Indeed, exemptions from meetings. conduct, applies expressive it no matter religious 403 for or electoral momentary, how within its sweeps accurately are more differences large of protected breadth amounts speech rather than disruptive standard for speech. reasons, exceptions. actual For the same protect prohibit 403 also does not government interest at stake specific messages, flag-burning as did the “ensuring this statute is that some indi statute at issue United States v. Eich unruly rights viduals’ assertion their man, 310, 2404, 496 U.S. 110 S.Ct. 110 expression imperil free does not other citi (1990). L.Ed.2d 287 rights zens’ of free association and discus may A also be content statute 941, Kay, sion.” Cal.Rptr. Cal.3d if speech based it “would allow or disallow short, 464 P.2d 142. In the statute depending on the reaction of the audi prevent meetings being aims to from dis Reform, ence.” Center Bio-Ethical rupted. protestor’s only A conduct vio Angeles Cnty. Dep’t, Inc. v. Los Sheriff “substantially lates the statute when it im (9th Cir.2008). F.3d “[Listeners’ pair[s] meeting.” the conduct of the Id. at speech reaction to is not a content-neutral Cal.Rptr. 142. Fur P.2d regulation.” (quoting basis for Id. at 788 ther, Kay emphasized, “the nature of a Movement, Forsyth Cnty. v. Nationalist meeting necessarily plays major a role” in U.S. S.Ct. determining protestor whether conduct (1992)). L.Ed.2d 101 substantially impaired meeting. has usages at political Id. “The customs and regulate speech Section 403 does not may prolonged, conventions countenance based on audience reaction. The Califor raucous, boisterous demonstrations as an nia Supreme explained that whether accepted meeting process; element of the triggers a disturbance 403 violation similar behavior would the customs violate depends impact on “the actual of that mis usages of a church service.” Id. This on meeting; conduct the course of the inquiry contextual into the “customs and question merely by cannot be resolved ask usages” meeting along with the ing persons present at the wheth ” they substantial-impairment narrowly standard Kay, er were ‘disturbed.’ 1 Cal.3d at government’s tailor the statute to the sub 464 P.2d 142. We agree Contrary with the district court that 403 stantial interest. to CPR’s con cerns, regulate speech. momentary disruption does not the content of neither a nor protected speech large amounts would Walk and was not upon, based fall whatsoever, within statute’s reach. manner the content of his true, chant.” That was but it does not time, place,

A or manner restriction on speak question to the threshold of whether speech open ample must leave alternatives applied to that activity in the first for communication. Section 403 does. To place. Because we conclude that it did statute, protestor violate the must sub- not, part we reverse that of the district stantially impair up or break court’s decision and remand for meeting. prevent The statute does not all further proceedings, protests protest. requires including or means of It the consideration of only protest disruptive that a not be so as what appropriate. relief is up substantially impair break V. Conclusion meeting. nothing prevents There is from communicating message CPR in We hold California Penal Code non-disruptive ways, and CPR does not § 403 unconstitutionally applied to allege precluded been has from CPR’s activities. Because CPR’s activities doing By allowing so. protest that does fall within the exception carved out substantially impair public meetings, Elections Code 403 does not open 403 leaves alternative communica- Therefore, criminalize CPR’s conduct. tion channels. district court’s order granting summary therefore agree

We with the district judgment in favor deny- of defendants and § court that not 403 is unconstitutional on ing summary judgment' plaintiffs to is re- its face. versed. We remand for further proceed- ings, including the determination of what As-Applied Challenge IV. relief, any, may if appropriate. be § Although 403 is constitutional on its Each party to bear its own costs. face, properly it does not apply to CPR’s PART, AFFIRMED IN REVERSED protests. 1107-08, As discussed above at PART, IN AND REMANDED. § Elections governs Code “electors ... assembling public in meetings for the REINHARDT, Judge, Circuit consideration of public questions.” Cal. concurring part and dissenting part: § Elec.Code 18340. CPR’s activities fall I concur in majority’s reversal of the exception § within this to 403 because the judgment district court’s in favor of the they protested Walks have pub- consist of § defendant and holding its that 403 of the lic officials and public members of the who may Penal applied plain- Code not to public meet on be sidewalks to learn about decision, tiffs. I would challenges neighbor- the Skid Row reach the latter terms, however, (and By hood. its by 403 does not cover holding that meetings that are by well) §§ covered so 18340 and 302 as are unconstitu- § 403 not apply does to CPR’s activities. tionally vagueness void for and simply applied particular as in the circumstances.

In rejecting as-applied CPR’s challenge, addition, In although I would not decide the district court did not ques- discuss that question, I statutory believe the Rather, tion. it focused on whether White scheme, it, part likely or at least a is was arrested based on the content of his also unconstitutional speech. It as content-based. concluded that “there can be Essentially, I dispute majority’s no serious that believe that Mr. White was arrested substantially simply go because his conduct decision does not far enough and impaired the conduct of the Skid Row will unnecessary regard- lead to confusion pro- provisions and because these of the various sections

ing applicability statutory to ex- of conduct than does antiquated scheme scribe different levels with or that interferes whether pressive in order to determine conduct meetings. types disrupts various challenge vague- a facial 403 survives citizens of important, it will leave the More meetings know what ness it is critical to guidance clear as to the without by that section and what meet- are covered rights Amendment exercise of their First by statutory excep- ings are covered That, my engage public protests. to Unfortunately, possible it is not to tions. view, acceptable not an result. is question that if determine the answer to that controls our deci- follow the law we I. sion-making, including obligation our to ac- broadly applies Penal Code statutes cept the construction California meetings. simply It provides lawful Here, by courts. the California anyone “willfully who disturbs or breaks by construed California’s of a misde- up” guilty such is unconstitu- Appeal, its Courts of CaLPenal Code 403. Under meanor. end result of the tionally vague; provision a willful disturbance statutory courts’ decisions is enough support a criminal conviction. give fails to clear scheme as construed exceptions, 403 contains two how- Section meetings notice of what fall within in Elections meetings ever: referred to what are covered referred to in fact, by § the California or even § 302. 403 and its Penal Code Section of that state without cases leave the statutory exceptions integrat- thus form an conduct is unlaw- guidance as when scheme, ed and no definition merely willfully disturbs a ful because defining also 403 can be derived without only is unlawful meeting and what conduct exceptions. these threats, if intimi- committed means 18340, § exception, governs po- The first dations, This is or unlawful violence. void “public meet- meetings, litical defined as especially public harmful to the interest as ... ings” people “assemble] which that pertains expressive it to conduct public questions.” the of consideration subject protection to the of the First § provi- Elections Code 18340. This Cal. provide to notice Amendment. The failure expressive protective sion is far more of permitted expressive of what conduct § than is Section 18340 conduct 403. chills First Amend- prohibited and what is only unlawfully criminalizes conduct if it rights vagueness and thus makes ment meetings through the use of hinders constitutionally unacceptable. more even “threats, intimidations, or unlawful vio- majority’s I conclusion agree with the religious governs lence.” Id. Section 302 §of its plain language that the 403 and “any assemblage of meetings, defined as the legislative history support conclusion people religious worship met for at a tax- provision political that the does not cover worship.” of exempt place CaLPenal at meetings, including meeting the issue § It the use of specifically proscribes however, disagree, case. I as to the this discourse, “profane rude indecent be- effect of the decisions of California’s state havior, any unnecessary or ... noise” to courts, Supreme its Court. including “intentionally disquiet[ a re- ]” disturb[ ] to the applied courts have 403 Those is in or ligious meeting, when the conduct very type meeting at issue here. To Because place worship. near the Id. decisions would lead us to the follow those (political) meetings by covered 18340 plain than the lan- excepted opposite from result' would (religious) and are history, guage legislative history. applies § 403 and its tive Each 403 to inter wholly yet ignore impermissible. to them is ference with that undisput- are uniformly apply ably The decisions 403 to political. applies exception None the thus, contrary and political that on governs meetings. its face such In contains, express exception provision the 930, 1Kay, re Cal.3d Cal.Rptr. disruptions political criminalize meet- (1970), 464 P.2d 142 only “threats, ings by acts that fall far short of Supreme directly Court decision constru intimidations, or unlawful violence.” Cal. ing applied § the Court 403 to a Elections Code 18340. political meeting clearly falling within the ambit of Elections Code 18340and clear majority, I not Unlike the do believe ly from exempted by express its that simply disregard we can the consis- language. Kay concerned four con application by tent of a state statute victed under 403 and sentenced to four courts, Court, including state in jail protesting months a congress the federal courts that have fol- speech man’s in a public park by engaging lowed the state courts’ decisions. Because “rhythmical clapping” and several min interpreta- we must follow state courts’ 935-37, shouting. utes of Id. 83 Cal. statute, tion of the Village of Hoffman Rptr. Kay P.2d court Estates, Inc., v. Flipside, Estates Hoffman “blinking reality noted that it would be n. 455 U.S. 102 S.Ct. acknowledge to that [congressman’s] (1982), crux L.Ed.2d 362 of our statu- July speech part was his [of] tory analysis meaning here must be the campaign,” acknowledged given to the California courts. speech by a public figure on a given As California courts have 403 a issue. Id. at 963 n. fundamentally application than different (citation question P.2d and internal plain language legislative statute’s omitted). marks history require, would and have failed con- sistently apply controlling statutory Recognizing application exception political protests, I believe § in question 403 to the conduct would be it possible is not for Californians to overbroad, constitutionally because know in prohibit- advance what conduct is expressive would criminalize conduct that § permissible ed 403 and what is only “a disturbs because the con provisions the far more speech-protective expression tent of the conflicted with the short, possible 18340. In it is not by espoused meeting’s organiz views the involving determine what the dis- conduct 941, speakers,” ers or official id. at ruption political meetings prohibited of 142, Cal.Rptr. Kay 464 P.2d the court by part statutory which of the California comport narrowed the statute to with the permissible scheme and conduct is what Amendment, 942, Cal.Rptr. First id. at statutory under the scheme as a whole. 686, 464 The P.2d 142. court held that As a result we have no but to alternative § punished under 403 conduct could be § declare 403 and its related sections void only substantially where the “defendant vagueness. by impaired meeting the conduct of the law, intentionally committing acts in violation of controlling

As to the there is one case, implicit usages explicit customs or or of California two Courts governance meeting, rules for of of Appeal cases and several federal cases knew, man § in a which he or as reasonable applying each of which does so should have known.” Id. at 83 Cal. directly contrary required manner to that plain language legisla- Rptr. the statute’s 464 P.2d Without mention- (even it, though § meetings from Elections Code political of ing the exclusion ap- statutory provision § that section not was the applied court then (as meeting). respectfully was then I plicable § 12046 to and not numbered) majority’s at is conclusion political disagree to the with sue, the conduct at ultimately finding Kay binding prec- that that does not constitute proscribed 403, as, not to the level it applicability issue did rise edent as to the narrowed construction of under the court’s all courts appears, do state and federal 944-45, Cal.Rptr. politi- 403. Id. question that have dealt with the P.2d 142. All Kay. cal since have unhesitat- to ingly Kay applied followed (what bring ap it Although intended to political meetings direct contradiction of be) proscrip § 403’s parently thought to express provisions of that statute. political meeting interference with a tion of majority’s The rationale for its conclusion Amend conformity into with the First Kay expressly doesn’t hold that ment, Kay guidance no as to provided applies political meetings, to so we cov types political meetings are what ignore can the case. No court to simply types, any, if are ered 403 and what date, posi- state or federal has taken that from 403 and covered excluded contrary, tion. To the all have followed way Nor it indicate in did Kay applied 403 not 18340 to relationship parts the two between political interference with the conduct of regulating scheme integrated meetings. contrary, it political speech. core To the applicable polit simply treated 403 as A. meetings. Kay and the cases which

ical it—every political followed Although it is of course true that courts case, give far as I can tell—thus speech as obligation are no either to address lack of certitude rise to a fundamental as arguments parties fail to raise their to how and to what extent Californians are grounds for provide briefs or alternative free to exercise their First Amendment holdings, their is also true that courts punishment criminal rights without fear of interpret must statutes with reference to they engage protests when disturb statutory scheme the entire and seek involve political but do every give meaning provision. People “threats, intimidation, or unlawful vio Pieters, 894, 899, 52 Cal.3d Similarly, limiting exposure lence”. their (1991) (“[W]e 918, 802 P.2d 420 do not acts in violation “commi[ssion] [of] isolation, rather construe statutes but implicit usages” customs or did every read statute ‘with reference to the court, Kay nothing does to cure that con part of law of it is so entire scheme which 943, Cal.Rptr. defect. Id. at stitutional may the whole be harmonized and ” 686, 464 P.2d 142. (quoting retain effectiveness.’ Clean Air Bd., 11 Constituency v. Cal. State Air Res. Kay majority concludes that 114 Cal.Rptr. Cal.3d application court’s 403 to a (1974))); P.2d Cal. Teachers Ass’n v. apply and its failure to the statu- Governing Bd. Rialto Sch. § tory exceptions to does not render of Unified Dist., 627, 634, Cal.Rptr.2d 14 Cal.4th unconstitutionally vague the be- statute (1997) (“ analyzing ‘In 927 P.2d 1175 that cause there is no indication either statutory language, give we seek to mean § to party argued apply that 403 did not every phrase word and in the stat Kay ing the to political meetings, and because with accomplish to address ute to result consistent required court was thus not ... Har legislative purpose (quoting simply resolving parties’ is not the dispute, XIV, 52 Capital explaining ris v. Growth Investors but is the law in a manner that 805 n will 1142, 1159, Cal.3d litigants bind future and courts. This (1991))). Thus, P.2d 873 canons statuto in particularly is true a decision based on ry to consider oblige construction courts grounds. constitutional The majority’s parties the entire statute even where reading of in a Kay manner that contra- fail one of argue provisions. to its relevant might venes this rule have some credence has Supreme As the United States had the Supreme Court stated recognized, legislative bodies must “be that its decision was a narrow one applica- legislate against background to able it, only ble to the case before given rules, interpretive [they] may clear so that some indication that its construction of language [they] know the effect of the if, § applied 403 would not be in a subse- States, adopt[ Finley v. United 490 U.S. ].” case, quent party argued that political 109 S.Ct. 104 L.Ed.2d 593 meetings § are excluded from 403. The (1989). court approach, By took neither however. omitting any why discussion of a speech

Here, Supreme the California Court was 6,000 a local congressman to more than required complex to review a set of people is not a “public meetingf] for the in a provisions contained scheme public questions,” consideration of and lengthy forth in a section of a set volumi- coverage thus excluded from single nous of a Code. Section consists tailoring (unsuccessfully instead in occupies only sentence that a half two and view) my requirements All court 403 to meet the lines. needed to do was to (as Amendment, I Kay read sentence and it would know the First court did) am it apply ordinary sure 403 did not to left the person with no basis all meetings, but that on its face it exclud- understanding why and when the more types gatherings. Sophisti- ed certain speech friendly provision of 18340would nationally cated as that court respected apply, Yet, if it apply would ever at all. was and as it is, sensitive demonstrated itself plain there it on the face of the statuto- requirements to be to the of the First scheme, ry both in the exclusion from Amendment, inexplicable it 403 of referred to Court would be unaware that express language speech coverage was excluded from the apply politi- itself. Section 403 does not to by the half second of that one sen- meetings; cal section 18340 does. tence provision. Nevertheless the court B.

proceeded analyze to apply 403 to allegedly conduct that interfered with the accept arguendo Even were we to political meeting question. To suggest majority’s unpersuasive explanation that that the California Court would Kay it unnecessary court found to limit attempt revise and an discuss Elections it 18340 because bring conformity it into with the First determined the conduct issue did not being Amendment without aware of the violate the lesser restrictions imposed effect of the exclusion contained within the Penal Code the same cannot be said revising one sentence it was or without Appeal for the California Courts of cases being holding applied aware that applying Kay political meetings and af political meetings simply not credible. firming violations of rebanee on Generally, Albany appellate Kay. when an court ana- McMahon v. Sch. Unified Dist., lyzes in a precedential opinion, Cal.App.4th statute 129 Cal. similarly Appeal The Court of (Cal.Ct.App.2002), the Califor- California

Rptr.2d decision, Kay unpublished in an relied on Kay and Appeal followed nia Court of Roseville, C041085, City v. No. Saraceni of Elec- any discussion likewise omitted (Cal.App.Ct. June 2003 WL that a concluding in § 18340 tions Code 2003). Saraceni, the court held that a § 403 had oc- of Penal Code violation probable had cause to arrest police officer concerned citizen’s curred. The case for city meeting at a council plaintiff at a school David McMahon arrest of where the violating Penal Code multipurpose in the held meeting board the council plaintiff attempted address school, elementary which was room of an city attorney public after the comment for cafeteria and also used as the school’s ended, repeated and refused period had Id. at program. childcare an after-school mayor from the and council mem- requests During the Cal.Rptr.2d 184. Id. at *5-6. Like bers to take his seat. emptied McMahon period, comment McMahon, meeting in meeting bags of 13-gallon onto the floor several unquestionably one at which Saraceni contained bottles and garbage, that alcohol public meeting[] people “assembled] protest in order to drug paraphernalia, public questions.” for the consideration by high school students. Id. littering local McMahon, Yet, court in the court like the 1280-81, Cal.Rptr.2d at su- citing Kay applied 403 to a Saraceni made a citizen’s arrest perintendent then meeting without discussion of violating Penal Code of McMahon § 18340. Elections Code 403; subsequently McMahon was issued Kay, in the absence of we would .Even by police, but was not a citation con by be bound the McMahon court’s Cal.Rptr.2d at charged. Id. persuasive 403 short of a struction a superintendent, McMahon sued the Supreme indication that the California member, district for board school decide otherwise. Lawson v. Court would Id. imprisonment. false arrest and false (9th Kolender, n. 658 F.2d for a The court denied McMahon’s motion Lawson, Cir.1981), by Kolender v. aff'd verdict, as to granted directed nonsuit 352, 103 S.Ct. 75 L.Ed.2d 903 U.S. member, jury returned a the board (1983) (noting placed that the construction the district and special verdict favor of ap a state’s intermediate on statute 1281-82, at 129 Cal. superintendent. Id. authoritative); pellate regarded court is Rptr.2d 184. Holder, 567 F.3d Morales-Garcia It Appeal The Court of affirmed. Id. (9th Cir.2009) (“Where 1063 n. 3 an inter jury trial court’s -in- determined that the appellate mediate state court rests its con §of 403 con- struction on the elements judgment upon sidered the rule of law Kay, jury’s and that the con- formed with announces, which it is a datum for violated 403 was clusion McMahon ascertaining state law which is not to be evidence. Id. at supported substantial disregarded by a federal court unless it is 1286-87, 1289, Cal.Rptr.2d 184. The persuasive other data that convinced length, upheld Kay court discussed highest court of the state would decide application (quoting 403 to v. Am. Tel. & otherwise” West Co., made no mention of the stat- question, and Tel. 311 U.S. 61 S.Ct. (1940))). utory exceptions persuasive for the con- No data L.Ed. 139 why Elec- that the public questions sideration of indicate differently with apply did not to would decide McMahon tions Code § 403. All respect application McMahon. faith- contrary: nary people” data are to the McMahon unable to “understand what fully Kay—the only follows relevant deci- prohibited.” Kolender, conduct is 461 U.S. highest sion the state’s court—which at 103 S.Ct. 1855. Is it a violation of meeting § a applied political 403 to while statutory simply scheme willfully § More- ignoring Elections Code 18340. a political meeting by disturb “committing over, court, binding on this although not in acts violation of implicit customs or Appeal’s unpublished of decision usages,” provided by 403 or it an persuasive authority in Saraceni is further offense to disrupt meeting only such a illustrating way in which California “threats, intimidations, or unlawful vio- apply Employers courts Ins. of provides? lence” as And do some Co., Wausau v. Granite State Ins. 330 political meetings fall in category one and (9th Cir.2003) (“[W]e may F.3d And, so, some the other? if how does decisions, unpublished state consider even anyone tell which fall where? though such have no opinions precedential I Although agree with the majority that (quoting City value.” Nunez v. Die- San plain language legislative history and (9th Cir.1997))). go, 114 F.3d 943 n. 4 of Penal suggest that the stat- Code applied Federal courts have likewise ute does not properly apply to White’s political meetings Penal 403 to Code activity, I Kay, particu- conclude that and Kay, ignored accord with and the statuto Saraceni, larly McMahon and limit our ry exception Elections Code ability to apply plain language reading of dismissing impris 1983 claims for false the statute so as to find that White’s con- po onment and false arrest for arrests at duct falls outside the proscribed conduct ground litical on the Rather, Penal I Code find that arresting probable officers had cause to Kay Kay’s progeny and have left the stat- plaintiffs arrest the based on violations of utory comprehended by § scheme 403 and Penal v. City 403. See Norse express exceptions any without means (9th Cruz, Santa 629 F.3d construction, of rational and the Cir.2010) (en banc) (finding probable California without means of determin- cause plaintiff city existed to arrest at ing how and when various sections giving council for a silent Nazi short, apply. because Californians are whispering meeting salute and to another adequately informed of how or in what attendee); City Ange Sanchez v. Los they comport manner must themselves les, (JC), No. 07-5132 CV GHK WL engaged protests regarding politi- when (C.D.Cal. 2011) (citing Oct. (such cal gatherings political party’s as a Kay finding probable cause existed convention) or, critically, national plaintiff attending city to arrest criminal they what pun- circumstances face council with a pillow case at engaging ishment such First Amend- tached to shirt read “CRA De ment activity, there is no alternative but to Communities”). stroys find that 403 and its related sections are apply? To what then does To Kolender, unconstitutionally vague. type meetings might what Californians 357, 103 U.S. S.Ct. 1855. protest apply, want does type religious what meet- II. ings provision? are excluded from that Although necessary I do not find California and federal cases constru- issue, strongly question reach the I ing give help ques- us no with these important, they majority’s tions. More “ordi- leave determination disagreement or academic content-based. Penal Code intellectual is not scheme statutory exceptions impose judicial methodology. and its The case be- about expres on different forms punishment ramifica- important practical fore us has subject the conduct on the basis of sive highly a active political tions. California is meeting being protested. matter of the political parties and state with numerous fa protection for more This is a form of groups many of which' political volunteer cannot speech favored which vored or less regularly political meetings, hold some of it could indirectly any more than be done object of fervent which are the demonstra- directly. v. Sound Mental be Clairmont Equally, if not more protests. tions or (9th Cir.2011) Health, 1091, 1100 632 F.3d important, California has on number (“Where may prohibit not government the occasions, including period six in the be- may [indirectly not speech, certain it also the site of tween 1956 and been ‘produce to speech] that order suppress major po- national conventions of the two di could not command [it] result which . parties. litical of these conventions Some ” Sindermann, rectly.’ (quoting Perry v. by major political have also marked been 92 S.Ct. 408 U.S. demonstrations, not all of protests (alteration (1972)) origi L.Ed.2d 570 entirely peaceful. which have been nal)). Moreover, majority the ignores the view of the failure of the California courts subject significant correlation between the question to treat the before us with the meeting being protested matter of the deserves, attention it careful constitutional subject speech likely to matter of get it would be nice if our court could disrupt example, used to it. For as the be my I am that right. answer afraid col- of the caselaw illus foregoing discussion leagues majority in the fail to do so. trates, political speech disrupt used to is, by speech. large, political type speech In addition the that is I holding that believe we are re- regulated interfering when with banned quired to reach—that 403 and its related religious speech issue is involved is provisions vagueness—would are void for discourse, “profane rude or indecent be only respectful not be more of the Califor- havior, only type speech ....” Not is the majority’s ruling nia courts than the but subject regulated on the basis of the would better serve the of that state. meeting but so is the manner which If the State of California were review speech Because I need not is delivered. the three code sections that form the inte- analysis question resolve this I will end the statutory general grated pro- scheme—the by saying simply might that whatever one vision, Penal Code say about two of the three sections under provision, Elections Code here, the section of the statuto discussion discourse, religious meetings provi- ry governing “profane scheme and the sion, rude or indecent behavior” seems to [and] Penal 302—and check- clearly either me to be unconstitutional sections, history might ered of those find proscription because the of those forms merely that it to amend its wishes laws content-based, speech provi because the bring conformity them into with the vagueness, void for or because it sion is Constitution, but also to consider how best princi fundamental otherwise violates the update antiquated provisions ples of the First Amendment. persisted they originally have since were century.

drafted in the nineteenth “Re- however,] statute[, writing job is a my position and The difference between inclined, legislature, an the if it is so majority’s simply [state] does not reflect Sol, Inc. this court.” Valle del and not for (9th 1006, 1021 Cir. Whiting, 732 F.3d

2013). Thus, only suggest I can might that it be well-advised

Legislature scheme rather

to reform continuing enforcement

than to allow the laws. clearly unconstitutional

NATURAL RESOURCES DEFENSE for a and Communities

COUNCIL Environment, Petitioners,

Better ENVIRONMENTAL PROTEC

U.S. Jackson, AGENCY; Lisa P. Ad

TION

ministrator, Environmental Pro U.S. Agency; Blumenfeld,

tection Jared Administrator, IX,

Regional Region Agen Protection

U.S. Environmental

cy, Respondents, Development

National Environmental Project; Air

Association’s Clean Quality Management Coast Air

South

District; Valley Joaquin Unified San District,

Air Re Pollution Control

spondents-Intervenors.

No. 13-70544. of Appeals,

United States Court

Ninth Circuit.

Argued and Feb. Submitted

Filed March

Case Details

Case Name: Cpr for Skid Row v. City of Los Angeles

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 10, 2015

Citation: 779 F.3d 1098

Docket Number: 12-55289

Court Abbreviation: 9th Cir.