Menotti v. City of Seattle

Inc., Security Experts, 20 F.3d 974 of whether a judge reasonable would have (9th Cir.1994) (arbitrator’s decision was given the defendant a lower sentence such improperly included in appellant’s excerpts that it “undermines our confidence” in the record because was never filed with outcome. We should not subjective use a court). the district supplement Motions to standard which focuses on the particular generally the record granted are by not judge who imposed first sentence. court if this the evidence not consid- by the ered trial court below. See South- III. Conclusion Center Biological west Diversity v. Clearly current state of the law has Serv., States United Forest F.3d engendered some confusion. The circuit (9th Cir.2002). n. 15 Similarly, judicial courts agree cannot what is to be done, notice is also of limited use in this context and even circuit, within our own there are proffered because the fact “must be one numerous divergent opinions. The re- subject to reasonable in that it dispute sult is that very uniformity in sentenc- (1) either generally known within the ing which the Court preserve strove territorial jurisdiction of the trial court or even while dramatically changing the (2) sen- capable of ready accurate and determi- tencing procedures is still a goal. distant by nation resort to sources accuracy whose Perhaps the Court will develop a reasonably questioned.” cannot workable be Fed. solution in one more of these post- R.Evid. 201. cases, Booker quite possibly involving a How then can the defendant meet his change to plain-error doctrine. But way One present burden? new evi- unless and until that happens, I believe we appeal dence is to attach that evidence are bound to R.App. apply existing law to the to a motion to remand. P. Fed. Booker issues. 27(a)(2)(B); see also United States v. Christy, Cir.1993).

Defendants given should be opportunity an

to make a motion for either full or a

limited remand.3 Defendants would then

have the opportunity to adduce evidence upon which could argue the now-

relevant sentencing factors at a re-sen- tencing and how this new evidence would MENOTTI; Victor Sellman; Thomas likely affect their sentence. The evidence Stedl; Doug Skove, Todd presented can simple be as as the defen- Plaintiffs-Appellants, dant’s affidavit or an affidavit the attor- ney of what evidence he intends to adduce possible at the sentencing upon which SEATTLE; CITY Schell, OF Paul For- he was not rely able to prose- before. The Mayor mer of Seattle; cution would then be free attempt Stamper, Norman Former Chief of rebut evidence its response Seattle; Police of Sharon R.App. 27(a)(3). motion. Fed. P. Stevens, a Seattle Police Detective; Finally, in evaluating Smith, Ronald defendant’s ev- a Seattle Police Offi- idence, the test objective cer, should be an Defendants-Appellees. test Where the issue in the case is a Booker jurisdiction court appeal. retain over the issue, then the motion should case, be for a full Where there are other issues in the remand there is because no need for this motion should remand. limited Hudziec; Hankin; Jennifer Kenneth Cooper; Ni Lane; Denise

Stephanie Pearson; of themselves on behalf cole situated; similarly others all Plaintiffs-Appellants, Schell, Former Seattle; Paul City of Seattle; Norman Mayor Police Stamper, Chief Former Defendants-Appel Seattle, City of lees. 02-35971, 02-36027.

Nos. Appeals, Court States United Ninth Circuit. 6, 2004. Feb. and Submitted Argued 17, 2004. Feb. Vacated Submission 14, 2004. April Resubmitted 2, 2005. Filed June

Civil Liberties Union of Washington, Se- attle, WA, for appellants Menotti, Victor Sellman, Thomas Stedl, Todd Doug Skove.

Steve Berman, W. Hagens Berman LLP, Seattle, WA, Arthur Bryant, H. Trial Lawyers for Justice, Public Oakland, CA, and Michael E. Withey, Stritmatter Kes- sler Coluccio, Whelan Withey Seattle, WA, for appellants Hankin, Kenneth Jennifer Hudziec, Stephanie Lane, Cooper, Denise and Nicole Pearson. Buck,

Ted Frey Stafford P.C., Cooper, Seattle, WA, for appellees.

Before GOULD, RONALD M. PAEZ,

RICHARD A. Judges, Circuit SILVER,* ROSLYN 0. Judge. District Opinio by Judge GOULD; Partial Concurrence and by Partial Dissent Judge PAEZ.

OPINION GOULD, Judge: Circuit In this case we search for proper the between, hand, balance on the one the rights vibrant speech free and assembly in an open society and, hand, on the other city needs of a to maintain order and security. We consider the constitutionali- ty of an emergency order prohibiting ac- cess portions Seattle, of downtown Washington, during the 1999 World Trade (WTO) Organization Appel- conference. lants filed lawsuits in the United States Lobsenz, James E. Carney Badley Spell- District Court for the Western District of man, P.S., and Aaron Caplan, H. Washington American seeking damages con- * Silver, Roslyn The Honorable O. ting United by designation. States Arizona, Judge District for the District sit- the zone outside inside and both cies to be alleged were that rights stitutional Number 3. by Order established Four of order. emergency violated claims al- damages, individual sought also filed Appellants plaintiffs The Hankin rights their constitu- their alleged violated in which defendants leging that po- by Seattle infringed Constitution. States rights United tional under confer- de- requested course also plaintiffs officers Hankin lice emergency emergency stating claratory determine relief ence. We time, Constitu- place, States the United constitutional order violated order was face, on its speech restriction on tion. manner the district judgment of and we affirm Menotti, Victor On March deter- also But we issue. on that court Doug Sellman, Stedl and Todd Thomas ma- issues genuine are there

mine that a law- (the filed plaintiffs) Menotti Skove order emergency Schell, whether Seattle, terial fact City of against suit to certain applied as constitutional Jennings Michael and Officer Stamper, remand reverse and and we Appellants, the Se- Stevens Detective Sharon Appel- As for that issue. for trial Menotti Department.2 Police attle claims, part, we affirm lants’ complaint individual an amended filed plaintiffs and remand. part, reverse De- Police adding Seattle January a defen- Ronald Smith Officer partment

I alleged plaintiffs Menotti dant. The 2000, Plaintiffs-Appel- under rights their violated On defendants October Hudziec, Amend- Hankin, Fourth, Fourteenth First, Jennifer lants Kenneth and Ni- States Constitution Lane, Cooper, to the United ments Denise Stephanie and Sell- damages. Menotti (the filed plaintiffs)1 sought and Hankin cole Pearson commit- defendants Seattle, alleged that then-Se- man also City of against the suit false Schell, ted arrest. and then-Seattle Mayor Paul attle Unit- Stamper in the Norman Police Chief the two court consolidated The district Western for the District Court ed States resolving legal of purpose for the cases of a class on behalf Washington, District of On October parties. to all issues common defined as: granted 2001, court 29, the district summary by the partial for were arrested motion who persons

All defendants’ constitutionality or agents police its judgment regarding and City of Seattle ap- order, holding as on December agents emergency its affiliated time, place, the defen- it a constitutional pursuant plied was 1 and The speech. di- on and restriction policies manner protest” and dants’ “no emergen- that the concluded embodied eventually district court which were rectives it (1) in that neutral content Proclama- order: was cy Local City of by the Seattle’s or content based on speech Number not exclude Emergency did tion Civil (2) narrowly be- tailored revisions) viewpoint, who (and and subsequent territory enough any cause “covered not convicted subsequently were [of delegates President all the WTO are in this class crime. Included from safely to move States] poli- United to such arrested persons pursuant Russell, Holloway, and Jackson, Emily Lauren 2. Andrew Hickey, Carroll 1. Robert plaintiffs in the Matyjas also were Ronald plaintiffs in named were also Maloney lawsuit, appeal. part of they not this are but ap- lawsuit, parties to this not are but ap- part of this Jennings is also Officer peal. peal. Stamper capacities, to the convention in their individual [center] their hotels (3) conference,” only during holding plaintiffs that the Menotti lasted had not provided any significant government showing interest evidence served Schell maintaining emergency Stamper personally in an situa- or order involved (4) tion, ample alternatives seizure or provided plaintiffs. arrest of these expression because could 15, 2002, August On the district court just demonstrate outside boundaries of granted Officer -Smith’s motion for sum- zone. the restricted mary judgment qualified on immuni- based plaintiffs’ ty district court denied the Skove’s claims. The district court summary judgment cross-motion for on determined that Smith was entitled to constitutionality emergency qualified immunity of the or- Skove’s Fourth applied. der as The district court also Amendment claim because act- Smith had City’s summary reasonably, motion for ed granted the and further that Smith was judgment plaintiffs’ qualified immunity on the Hankin claims entitled to on Skove’s alleging § a failure under U.S.C. First Amendment claim no because consti- officers, supervise holding train or tutional violation had occurred. The dis- plaintiffs presented the Hankin had not trict court denied Skove’s cross-motion for supporting evidence this contention. summary judgment on the same claims. 8, 2002, January 1, 2002, On the district court Finally, on October the district plaintiffs’ denied the Hankin motion for granted summary judgment court August certification. class On City on Menotti and Stedl’s claims under granted summary judg- the district court § holding U.S.C. that there was all ment to defendants as to the Hankin Menotti, probable cause to arrest and that claims, plaintiffs’ remaining based on the Menotti and Stedl had submitted no evi- ruling district court’s of the constitutionali- municipal policy dence of a or custom ty emergency order. district illegally seizing searching handbags. judgment court entered final as to the. judgment The district court entered final plaintiffs pursuant Hankin to Fed.R.Civ.P. as to the plaintiffs Menotti on October 54(b) 2002. November for the As filed Menotti lawsuit timely The plaintiffs Menotti filed a no- plaintiffs, the district court on November 23, appeal tice of on 2002. October 1, 2001, plaintiffs’ denied the Menotti mo- timely Hankin plaintiffs filed a notice of partial summary judgment tion for based 13, appeal on November 2002. We have alleged on the federal constitutional viola- 1291, jurisdiction § and under 28 -U.S.C. 14, 2002, January tions. On the district affirm in in and part, part, reverse court, ruling based on its that the emer- remand. constitutional, gency granted order was II summary judg- the defendants’ motion for However, ment as to Sellman’s claims. reviewing In de court’s novo district the district court denied the defendants’ grant summary judgment, of where the summary judgment motion for as to the disputed are we view the evidence facts Stedl, finding claims of Skove and light non-moving most favorable to genuine issues of material fact existed as Tacoma, party. v. United States of to the circumstances of their arrests. (9th Cir.2003). 574, 578 We de- 332 F.3d 14, 2002, genuine January the district court termine whether there are On granted motion to issues of material fact and whether the also defendants’ dismiss correctly the relevant plaintiffs’ against applied the Menotti claims district court Schell clothing store down- Gap at a the windows weigh do not law. We substantive “Molotov and threw several disput- town Seattle the truth of or determine evidence building, causing sub- facts, into the determine cocktails”5 material but ed symbol trial. The “anarchist”6 damage. genuine there is a issue stantial whether 1047, of the onto the walls City, spray-painted 180 F.3d v. Carson Balint (en banc). Cir.1999) adjoining and on the sidewalk. Gap store gain entry attempted protestors Other group an international is The WTO offices of timber downtown Seattle into discuss nations that of member comprised companies. Protestors product and forest agree- into and enter trade issues trade downtown Seattle’s Old trespassed onto 1999, January the White ments.3 store, protest Navy hung huge and a ban- Seattle, that the of announced House the face of the storefront. On ner on (the City) selected had been Washington 26, 1999, Thanks- day after November confer- the first the location for WTO fifty sixty protestors group giving, States. held United ence be permission to parade without entered from place was to take The conference protest the WTO. December 1999 to November from the 134 WTO-mem- Representatives activity began intensify on Protest nations,4 President of including the ber 29, 1999, day one ahead of November States, convene in Se- were to the United most conference. While WTO attle. were violent. The peaceful, others cannot considered de level of violence agenda opposed the

Those who WTO’s posed cases threats to minimis and some convened in Seattle specific activities protestors vandalized persons.7 Some of the con- opening well advance by spray painting buildings activity began taking property ference, pounded Others opening breaking windows. before place. Three weeks stores and threw conference, windows of downtown unknown individuals broke Simmons, January United States 3. The WTO was established on (4th Cir.1996). Uruguay negotiations during Round Agreement pursuant to the General held site, represents According web movement Tariffs and Trade. to its 6. "The anarchist only global organized primari- range groups, the WTO "is the international from organization dealing trade ly groups with the rules of like the Industrial Work- nonviolent At its heart are the WTO loosely between nations. knit and more ers of the World signed by agreements, negotiated and groups....” splinter Ruth Tei- extremist trading and rati chroeb, bulk of the world's nations Fringe Anarchists in Middle Violent help parliaments. goal in their Demonstrations, fied Post-Intelligencer, Seattle services, producers goods exporters, symbol Dec. at A15. The "anarchist” importers conduct their business.” What and circle, “A” in a and the consists of the letter WTO?, http://www.wto.org/en- the symbols symbol the "is one of most familiar (last glish/thewto_e/whatis_e/whatis_e.htm slogan represents 'An- of anarchism and the " 7, 2004). objectives The WTO's visited Oct. archy Id. Is Order.' by generated vigorous opposition a those have the WTO trade ex "favor[s] who believe that dissent, acknowledging that vio- 7. The while Gorov, Lynda pansion over all else.” occurred, argues our "account ex- lence that Protests, Varied Foes Unite in Seattle WTO aggerates pervasiveness” because most its Globe, 30, 1999, at Boston Nov. Al . peaceful. protestors were Dissent at 1160. explicitly recognize that "most We of course filing Opinion, the 4. As of the date of this protestors peaceful,” were but this does not has 148 member nations. .WTO negate reality striking import of and harsh instigated by widespread those explosive violence 5. is an device A "Molotov cocktail” Moreover, bottle, peaceful. rag.” protestors who were not consisting gasoline, "a and a police protestors rocks at officers. Police formed Those who chose to use vio- security perimeter around Niketown disrupt lence to the WTO’s conference pro- store in downtown Seattle because of devices, array weapons, used an and encouraging testors crowd take over tactics to obstruct the conference. The and Damage property the store. risks disruption of city normal life was so ex- day on this were not insignif- to individuals treme in some locations that it bordered icant, though geographic limited in area to on chaos. Police in contemporane- officers City, a few blocks in the center of the and reports ous said that saw protestors dispersed evening.8 late into the carrying bottles with liq- filled flammable opened formally conference WTO uids, locking down by intersections form- on November and from law en- ing human lightpost chains from to light- perspective, things got forcement’s worse. post, breaking stores,9 windows at retail logs Police indicate that demonstrators overrunning stores, and looting small retail gathered early area as downtown as jumping By a.m., and pro- ears. 8:00 a.m. At among protes- 5:45 least some testors had cut off vehicular access to the tors had violent intentions. On a video- Paramount Theater and Washington record, of the tape part introduced Center, State Convention pri- & Trade “50,000 protestor says, people masked that mary meeting venues of the conference. really hoping care.... I’m that can we After demonstrators were discovered in- here, come out get crazy fucking venues, meeting side requested and ..., up every city shit in the world received a “lock down”10of the Washington knows that it can’t host the WTO confer- State Convention & Trade Center and the give city ence and it better control of the Hotel, Sheraton many where people city’s going back to the or that WTO dele- pieces.” gates be torn to staying.11 Seattle Police De- description riots that WTO follows chaos that stemmed from the violence that just majority. However, is not that of the The whole marred the WTO conference. rampant world witnessed the violence and pattern protest propagating civil disorder chaos in the streets of Seattle at the outset of understanding and violence is relevant to meeting. the WTO The dissent's account mis- City’s restoring maintaining interest in apprehends reality minimizing the violence pro- order to allow the WTO conference to import. Any objective and its fair and review securely. dissenting colleague ceed Our fails of the record would lead to the conclusion give adequate this interest heed. Judge that District J. Barbara Rothstein’s or- granting summary judgment der Niketown, prior the site of on the correctly emergency described an situation day, again attracted attention of violent vandalism, theft, arson, by pervasive marked protestors. reports Officers received assault overwhelmed law enforce- being by protestors, Niketown was ransacked ment resources. These acts of violence are employees and the officers had to rescue undisputed may in the record before us. One through alley a rear door. disagree legal implications on the of the vio- doctrine, lence under First Amendment 10. A "lock down" these facilities meant disagree. doubtless and the dissent do so persons or exit. no could enter But to minimize violence and threat City, visiting foreign dignitaries, and to protection dele- 11. The increased level of for citizens, dissenting colleague Seattle’s does, as our gates necessary security. was for their It also wrong. important even because WTO meet- was more ing designated equiva- 8.Appellants alleged negligence venues had been have embassies, mandating height- foreign against City having lents of cause of action failing prevent security protection. advance notice of but to ened required helicopter and a evacuation was Department Police The Seattle partment, medical units could not break Organi- because Report, Trade Action World After provide crowd to through gathered Apr. Conference, Ministerial zation assistance. medical 2000, at 36-39 “WTO [hereinafter After Report”]. Action passive did not take the Some officers approach response being resistance to directed violence at law protestors Some violence, insecurity targeted by and mutual Among the vio- enforcement authorities: among police protestors and caused lent, protestors were who assaulted there out of control. In lieu of spiral situation to irritants, and officers with chemical police arrests, respond- some officers large-scale police who vandalized cars. Some others and gas ed with tear similar non-lethal spikes, threw metal protestors violent gas, beanbag guns, weapons pepper like canisters, cans, bottles, signs, gas empty Id. at 4. The gravity and bullets. rubber officers, pieces and of concrete at who officers to of the situation caused some gear protec- to wear riot were forced characterized later resort measures deliberately protestors disre- tion. Other City proportion as “out of Council attempted garded police lines faced,” provoking further dis- the threats through in violent confrontations break pro- turbance and resistance from violent report to a police. According with Id. at 11. testors.12 City prepared after the Seattle Council convention, general public also at risk. put “officers were was WTO where, in the often cut off Some violent started fires perilous situations communication, large dumpsters, and then they expected were streets and from fire from en- physical protestors prevented and taunts for trucks to endure assaults restrooms, food, rest, garbage A driver of a periods tering without the area. long Council, pulled truck from his vehicle and as- City Report Seattle water.” of in the core downtown area. Once Accountability the WTO Review Commit- saulted tee, overwhelmed, police some uses of Sept. at 5 “ARC were [hereinafter “violently non-lethal such as chemical irri- Report”]. weapons, Some officers were tants, (‘pachinko’ law-abiding failed to discern demon- barragéd bearings with ball balls), bottles,[and] bystanders squirted rocks and strators and from the law- disperse. intended police urine.” Id. at 10 & n. 14. One breakers with attack, only dignitaries many from nations duty officer on suffered a heart Not comports on the Seattle Police whether Order No. 3 with the First 12. The dissent focuses finding signifi- Department response, for its does not Amendment turn on who is City cance in the Council's remark that offi- intensity blame for the of the situation that "likely the situation.” Dis- cers intensified City faced. See discussion Part III. infra at sent 1161. The dissent's characterization causes, complex City Whatever the of description is incorrect as a of con- beyond its was faced with riots disorder whole, duct as a event is irrele- safety visiting control that threatened the analysis vant to the 3’s consti- Order No. officials, foreign prompting Order No. tutionality. Report Council’s ARC permissibility light its must be assessed in acknowledges "police officers on facing crisis when it was had no basis for front lines confidence adopted. Finally, likely it is also that most stop the violence would with rocks and bot- police attempt quiet of the time when tles,” "thankfully report and the endorses situation is intensi- violent disturbance the performance of those who underwent officers fied, consequence which is collateral unnecessary hardship and were the victims response pro- law enforcement’s to violent poor planning leadership Moreover, Report field.” ARC test. protestors, interest in the WTO’s this is not worldwide with a small amount of conference, also, regrettably, but given trade violence the in activities which the confusion, visiting and chaos were panic, protestors engaged, and where there were Seattle. tens of protestors. thousands of directly protestors even interfered Some Despite gravity the problems, these delegates disrupt in an effort to with WTO protest not all or disruptive. violent vio- progress conference. Some protest activity Much was ordered and held, pushed, or tackled protestors lent reasonable. Several marches involving delegates prevent entry to their into WTO primarily peaceful protestors place took delegates conference venues. Some WTO the downtown area on November 1999. forcibly prevented leaving from con- were marches, comprised These of concerned protestors ference venues. Some violent persons who were not violent and who punctured car and stopped delegate’s one law, breaking were not caused the Reflecting dangers its tires. extreme persons inflow of tens of thousands of into delegates, protestors, public, and the downtown largest protest Seattle. The delegate gun least one drew a WTO day, a march organized by the AFL- response protestors’ attempts to the CIO, by police was estimated in- have him, in- requiring police detain immediate 40,000 persons. volved protest Other tervention. involving marches significant numbers of protestors well-orga- violent Some persons included a march of about 1000 nized, and their actions were coordinated. Club, members of the Sierra march of protestors gathered intelligence Some University 500 students from the of Wash- police operations during about ington, and a march of 1000 protestors by asking questions officers about law en- Rights from the Tibetan Association. protestors forcement tactics. lis- Other by These marches protestors non-violent squad briefings taking place tened on showed the substantial public sentiment city streets. Still others used cellular tele- opposing the WTO or its activities. Pro- phones and “walkie-talkies” to coordinate positive tests such as these are the fruits account, protestors’ By activities.13 one open society, of an encourage us to “seeming Seattle’s streets turned into war scrutinize care with the constitutional is- Report perplex- zones.” ARC at 4. It is by city police sues responses raised ing dissenting colleague rely how our can security the breakdown of civic order and report, on the with its ac- Council’s by seeking caused violent knowledgment of the “war zone” atmo- disrupt the WTO conference.14 Seattle, sphere urge and still the vio- pervasive; although by Depart- lence was not As noted the Seattle Police Report, Action Report suggests protes- ARC that violent ment’s WTO these After percent largely peaceful place tors were less than one of the total demonstrations took previous day, protestor bicy- misapprehends 13. On the on a the WTO conference. It group protestors, cle rode ahead of a com- insecurity extent of disorder caused municating via radio the loca- crowd large police going crowd: The “were not police tions of officers. bring to be able to the situation under control action,” taking without some sort of drastic 14. The dissent's characterization of the deci- and "the recourse” had was to following sion to enact Order No. 3 as police perimeter” "provide "establish simply larger realization that the “crowd was security delegates.” See Dissent at anticipated” again ig- than the nores the violence and riot threatened (Order 3). said, No. 3 in 3” No. disruption by caused amid the chaos and report pertinent part: also protestors. the violent height- the combination of specified that WHEREAS, Mayor declared a civil security required measures WTO ened City of Seattle emergency exists large protes- of delegates and the number (“the in Dated City”) the Proclamation effectively to tors rendered unable 30,1999; November and protestors individual arrests of those make WHEREAS, after the issuance of the report breaking who were the law. deploy- despite Proclamation and stated: law enforcement ment of hundreds of pattern was a occurred

This officers, City experi- continued to throughout present- the conference and inju- in resulting ence civil disturbances challenges po- tactical to significant ed damage property; to ry persons and protestors commanders. The lice and- fluid, dynamic method of establishing a WHEREAS, city the level of distur- deploy- of operation rapid that consisted danger persons prop- and and bances protes- non-criminal and the use of

ment in erty highest has been those areas protes- of pockets tors to smaller buffer vicinity protests which there are criminal engaging significant tors (“WTO”) Organization Trade World acts. meetings; and Report Action at 35. One WTO WHEREAS, City understands its After report noted that police captain’s Seattle activity obligations permit expressive numerous inci- officers “heard and saw time, place and pursuant to reasonable destruction, property burglary, dents by manner necessitated restrictions looting; and but were unable leave existing public safety concerns for WTO actions.” our lines to take enforcement citizens, delegates, dignitaries, public and p.m. safety employees protestors; on November At about 3:30 Mayor Paul Schell de- then-Seattle WHEREAS, the Chief of Police and oth- emergency clared a civil public safety er officials have deter- Seattle, pursuant Municipal to Seattle safety delegates, mined that the of WTO im- Mayor Section 10.02. The also citizens, Code dignitaries, public safety em- posed general governor curfew. The ployees protestors pre- cannot be Washington the State of then authorized reasonably limiting served without ac- out, of, deployment and called the Na- by personnel; cess to areas used WTO tional Guard.15 WHEREAS, imminently necessary it is

President Clinton arrived at the Westin extraordinary pro- measures to to use Hotel in downtown Seattle between 1:30 welfare; public peace, safety tect a.m. and 2:30 a.m. December arrival, A few hours after the President’s WHEREAS, activity temporarily emergency sub- the civil neces-

when sided, Mayor signed emergency pow- “Local sitates the utilization Schell Procla- Mayor pursuant Emergency granted mation of Order Number ers Civil analysis City's poor properly focuses on the chosen 15. The dissent chastises the n planning once lost to political and cost consid- means to restore order violent driven preventing erations. at 1161. This condemna- bent on the WTO con- Dissent proceeding. whether Order No. 3 ference from See discussion in- tion does not control comports Our Part III.A.2. with First Amendment. fra Code, 10.02 Municipal Chapter provided protective and substance pe- Seattle rimeter.17 Chapter 38.52. [Wash. Rev.Code] and .... Therefore early morning the hours of December imposed por-

A curfew is the limited Seattle Assistant Chief of Police following tion of the within the Ferguson Harv “Operations issued an Or- Starting on the corner of boundaries: implement der” to Order No. 3 and the Street, pro- 4th Avenue and Lenora then Operations restricted zone. The Order ceeding south on 4th Avenue to Seneca “[vjehicles told officers that pedes- and/or Street, .,. on then east Seneca Street the trians are authorized inside access freeway, along 1-5 then north the 1-5 they if have a [restricted zone] reasonable Avenue, freeway on to Boren then north purpose entering for the perimeter. A Street, Avenue to Pine then Boren west work, reasonable purpose shop- includes Avenue, on Pine Street to 6th then north at a ping specific location within the [re- Street, to Lenora then on 6th Avenue zone], stricted or other like type reason- to, on Lenora Street and conclud- west Thus, activity.” able as it interpreted, Lenora, ing at 4th Avenue and as shown Order No. 3 all persons except excluded map. the attached delegates and personnel by authorized functions, employees WTO its official effect of Order No. 3 was that all and owners of businesses within the re- subject persons, exceptions, to limited area, customers, stricted their per- other prohibited entering portion were from necessary sonnel operation of those of downtown Seattle described or- businesses, emergency and and public exceptions prohibition der. The to the safety personnel. Initially, Order No. 3 entering granted the restricted zone were had not explicitly permitted shoppers to (1) delegates personnel for: and author- enter, but it had allowed business owners participate ized in official WTO persons necessary and run their busi- (2) functions; employees and owners WTO enter, nesses to implicitly supported which of businesses within the restricted area interpretation Operations of the Order. necessary other personnel oper- (3) businesses; ation of At a press morning those emer- conference on the safety gency public personnel.16 Vio- December Assistant Seattle Police explained City’s punishable by lations of Order No. 3 were Chief Edward Joiner18 impris- adoption of not than of Order No. 3: a fíne more $500 and/or days. onment of not more than 180 At all going adopt policy We’re that’s times, Washington State Convention & pretty much in with what’s done line and the Paramount Theater Trade Center other cities around the world when zone, were within the restricted as well as magnitude, have an event of this major delegates is, where hotels WTO to take the core area where (i.e., Hotel, the Four ... staying occurring were Seasons conference is [WTO] Hotel). Cavanaughs, prohibit any and the Sheraton within that demonstrations venues, week. The restricted zone skirted these core area for the remainder Stamper delegated 18.Chief -to Assistant In an amendment to Order No. 3 issued day, exemptions additional planning later Seattle Chief Joiner the task of granted city and credentialed mem- staff response Department’s Police to the WTO press. bers of the conference. Appendix diagram 17. We attach as A that was boundaries of the restricted zone part of the record in this case. morning. There was no parted testi- the next Pugel Captain Police James

Seattle immediately pres- incident his violence that Assistant Chief deposition19 fied 2, 1999, Mayor On December him, entation. in connection had instructed Joiner by reducing No. 3 Schell amended Order No. 3 implementation with the zone. As modi- of the restricted the size Order, pro- large Operations “[n]o and the fied, was reduced to the restricted zone marching come people No can tests. Hotel because Presi- exclude the Westin will restricted There through zone]. [the n (cid:127) departed.22 had since Police dent Clinton marches.” be no violence de- protest indicate that logs - deposition20 in Stamper testified Chief 2, 1999, and through on December creased Order was Operations the effect of the conference on the conclusion of the WTO entering from protestors exclude expired No. 3 December 1999. Order zone: restricted morning on the of December 7:00 a.m. view, have point of From the officer’s 1999. permit it that we could not made clear City’s for opposition motion gather to block intersec- large groups summary judgment, plaintiff-appellant forth, point their and so and from tions Hankin submitted a declaration Kenneth and they’re thinking what what of view violating that he was arrested for stating is to make is their direction believe by trespassing inside the re- Order No. 3 that, into nobody comes into sure that protest. of purpose zone with the stricted he no-protest so-called zone unless that, declaration Hankin testified via legitimate has shop or she is there to or 1, 1999, morning of December he and area, in purpose the downtown business group protest in a participated others effectively their of it point so from view Park, Denny in north of downtown began coming protest. in to anybody meant zone. and outside the restricted Seattle accompanying Op- Order No. 3 and the Park, group approached As their Westlake pro- and erations Order decreased violence shopping plaza public a downtown zone. But it did test within the restricted zone, square within the restricted Seattle within stop either violence police group surrounded them. The re- restricted zone. Inside restricted by sitting ground. on the Hankin sponded zone, open protestors gathered defiance that, warning, po- testified without Seattle police No. made about 300 of Order group protestors, lice arrested arrests.21 portion turned to another then Westlake Park, Han- standing. Clinton addressed the WTO where Hankin was President 1, 1999, him and de- kin and others beside were arrested. conference on December protest. protestors plaintiffs Captain Some violent caused The Menotti submitted debris, testimony support Pugel’s deposition damage, property threw blocked tire summary judgment partial street, their motion trapped people in their cars. City's opposition to the motion for and in protestors jumped pa- Some onto an officer's summary judgment. partial bar, light its trol car shook while prevented others laid in front of the car and plaintiffs Menotti submitted Chief 20. The escaping. Some the officer from deposition testimony support Stamper’s gas pumps at a took over the fuel station and summary judgment partial their motion for attempted gasoline. to fill small bottles with City's opposition to the motion for and in summary judgment. partial diagram Appendix B a 22.We attach as zone, revised boundaries of the restricted zone that 21. Even outside the restricted there part case. problems of the record in this were some of violence incidental deposition hearing his after Menotti submitted about No. 3 on De- Victor 1, 1999, testimony support of his motion for cember he decided to enter the judgment.23 Menotti tes- partial summary restricted zone and distribute leaflets con- partici- taining was a the text of the First tified he credentialed Amendment. that, just zone, standing conference and While outside the pant WTO Stedl standing officer, on a to hand a December he was tried leaflet to an who talking group by grabbing with a small about reacted sidewalk fliers and search- meeting just ing bag. complained a WTO conference he Stedl’s When Stedl warning, police attended. that the officer could not seize Without his fliers or warrant, group surrounding bag Menotti. search his charged the without the offi- ran, try- believing Menotti cer told him to contact Hall and to crowd, ing stopped but disperse the restricted zone. leave Stedl asked being pursued. number, when he realized he was badge the officer’s and the officer pedestrian Menotti was arrested for inter- told ap- Stedl leave. The officer later officer; obstructing an howev- ference proached again Stedl and told him to leave er, charges against Menotti were dis- the area. Stedl told the officer that he probable hearing before a cause missed thought already he was outside the zone. was held. replied get The officer that Stedl should far, going. When Stedl asked how

Thomas Sellman also introduced his de- officer told him fifteen blocks. Stedl testi- testimony and that of Po- position Seattle that fied he was too intimidated to return in support lice Detective Sharon Stevens leaflets, pass to the zone to out more summary judgment. motion for partial his returned, if felt that he he would be testified that he was within the Sellman arrested. The officer was never identified. 1, 1999, restricted zone on dis- December tributing containing leaflets a cartoon criti- Doug deposition Skove introduced his cizing the WTO. Stevens testified she testimony and in support video evidence and another officer witnessed Sellman dis- partial summary judgment. his motion for tributing flyers and asked Sellman that, 2, 1999, Skove testified on December he had in the zone. When what business go hearing he decided to to Seattle after ascertained that did not Stevens Sellman a about restricted zone. He carried exceptions come within one of the to Order side, sign that read one “Is the WTO him to No. Stevens ordered leave control of Seattle too?” and on the other attempted zone. Sellman restricted When right “I non- side have the flyer, placed to hand out another Stevens violently.” The evidence video shows him failing disperse. under arrest for (later police officer identified as Seattle spent nights jail two and was Sellman Smith) Police Officer Eonald saw Skove released thereafter. carrying sign walked into a Skove Skove, “Hey, said to presented deposition Todd testi- crosswalk. Smith Stedl Mayor you? what did the tell Other side mony support partial of his motion for Fourth, that, summary judgment. testified other side of Seneca.”24 As Stedl vits, depositions any, genuine 23. We these because if show that there is no consider part of the record when the district as to' material fact and that the issue granted summary judgment moving party judgment to the de- court is entitled to a as a law”). plaintiffs' claims. fendants on the Menotti matter of 56(c) (stating summary Fed.R.Civ.P. judgment granted pleadings, be 24. This was an instruction from Smith should "if the depositions, interrogatories, Skove to exit the confines of the restricted answers file, together affida- zone. admissions on with the street, where conduct and not “particularly crossing finished Smith Skove involved, sign merely speech we believe that grabbed Skove’s approached, away it from his hands. Skove pulled the overbreadth of a statute must not right walking well, and continued real, turned to his judged substantial as be but Smith, away from across the street and plainly legitimate to the statute’s relation here, hey pal!” shouted “Come Oklahoma, while Smith v. 413 U.S. sweep.” Broadrick walking away. continued Smith Skove 37 L.Ed.2d 830 S.Ct. said, okay,” alright, “That’s that’s as Smith (1973). plaintiffs The Hankin contend that away, sign, and walked folded Skove’s facially Order No. 3 was unconstitutional away. After had another threw Skove evaluating overbroad. because it was sign encounter with where second challenge, this overbreadth we determine seized, would Skove was warned he No. restrictions on whether Order 3’s protesting. if continued arrested he Skove neutral, were content were narrow- speech zone. left restricted ly significant govern- tailored to serve interest, open ample mental and left alter- Ill Vlasak, native means of communication. plaintiffs Hankin and Menotti con- 689; Frisby see also tend that Order No. 3 was an unconstitu- Schultz, time, place, tional manner restriction (1988). 101 L.Ed.2d 420 face, plaintiffs on its and the Menotti also contend that No. 3 unconstitutional- Order 1 ly unfettered discretion conferred address first We whether Order Hankin implementation. plain- for its principal No. 3 was content neutral. “The tiffs also contend Order No. 3 was in inquiry determining neutrality, content applied unconstitutional as to them be- time, in speech generally cases City adopted a of policy cause the place, particular, or manner cases in is arresting only protestors within anti-WTO government adopted whether has zone.25 the restricted

regulation speech disagree of of because A it message conveys.” ment with the Ward Racism, 781, 791, Against v. Rock 491 U.S. We first address the facial constitu (1989). 2746, 109 S.Ct. 105 L.Ed.2d 661 tionality of Order No. 3. We have held that for protect The reason this rule is to facially “[a]n ordinance is unconstitutional preserve speech free and unfettered (1) if in every it is unconstitutional conceiv good society. the ultimate of We have application vague able because it or is expressed ways, this basic reason varied impermissibly protected activity restricts a it is unassailable that the “fundamental (2) but prohibit seeks to such a broad principle” analysis behind content is that range protected of conduct that it is uncon “government may grant not of a the use stitutionally Supe overbroad.” Vlasak v. (9th Cir.2003) Court, 683, people forum to whose views it finds ac rior 329 F.3d 688 (internal quotation ceptable, deny wishing marks and citation but use to those omitted). Supreme express Court has held less favored or more controversial challenge alleges litigant’s particular speech activity, 25. "A facial en- though may capable forcement of the ordinance creates an unac- even the law of valid ceptable suppression application Agric. risk of the of ideas. An to others.” Kuba v. 1-A Ass’n, 850, Cir.2004) (inter (9th as-applied challenge alleges that the restric- 387 F.3d 856 omitted). speech applied quotation tion on is unconstitutional as marks and nal citation

1129 (“[A] Playtime expressive activity Renton v. The restriction on views.” is atres, Inc., 41, 48-49, justified, i.e., 106 if it 475 U.S. S.Ct. content-neutral based (1986) (internal 925, non-pretextual on a quota 89 L.Ed.2d 29 reason divorced from omitted). message attempted tion marks and citation as the content of the law, sessing speech conveyed.”). whether a restraint is be As a matter of Order neutral, make a No. regulation speech content we do not search 3 was not a con motive; rather, tent, ing inquiry regulation of hidden we but rather was “a places command of the re speech may look at the literal where some occur.” Colorado, way, agree another See Hill v. straint. Stated we 530 U.S. (2000). 2480, 147 Kennedy’s

with Justice observation S.Ct. L.Ed.2d 597 Under Books, Inc., 3, Angeles v. Alameda Order No. persons Los could not —in support is content neutral of or against any topic “whether statute within — something or content based is that can be the restricted Id. (holding zone. that re it; determined on the face of if the statute strictions are not content based where by demonstrators, then it is con speech “apply equally describes content to all 425, 448, 122 regardless viewpoint, tent based.” 535 U.S. S.Ct. statutory (2002) J., (Kennedy, language 152 L.Ed.2d 670 no makes reference to the con (internal concurring). circuit has tent of adopted speech”) quotation Our this omitted). Policy Fair view. Ctr. Pub. Marico marks and citation The restrict pa County, Cir. ed zone established applied Order No. 3 2003). equally to persons viewpoints. of all That No. predominantly pro affected here, Applying principles these testors with anti-WTO views did ren see Order No. 3 as content neutral on its der it content based. See Madsen v. plaintiffs’ face. Even when we credit evi Ctr., Inc., Women’s Health give dence and all plaintiffs reasonable (1994) L.Ed.2d inferences, the text Order No. 3 is not (“[T]he injunction fact that covered dispute, it and does not favor one content people a particular viewpoint with does not purpose enacting over another. The of injunction itself render content or everything Order No. 3 had to do with the based.”). viewpoint order, need to maintain restore and civic Further, nothing City’s and to do with the content of evidence in tes Schell,26 Appellants’ message. timony Mayor See United States v. of Police Chief Cir.2000) 1256, Griefen, 1260 Stamper,27 200 F.3d and Assistant Chief Joiner28 deposition 26. concern the violence [0]ur Schell testified in that “secure been here.... is side, delegate, “primary objective” erupt zone” was his in enact- could on either that for 3, ing angered being example, advice at access Order No. and that the he re- denied case, violence, actually his was a "secure zone" could resort to in this ceived from staff necessary safety possibly was in order assure the of armed violence.” to delegates. residents and WTO downtown deposition only 28.Joiner testified in that "the Stamper deposition para- we [restrict- 27. that a recourse had was to establish the testified goal maintaining security provide security was ed where we could zone] mount testified, delegates avoiding “I and so forth.” Joiner also testi- violence. He also need emphasize we fied that would not have allowed "[w]e to crucial intersec- protesters] stay completely denying [peaceful to' the re- [within tion blocked access of emergency denying under circumstances be- zone] vehicles and access to the stricted [Tjhose could be assured WTOvenue itself.... were formidable cause couldn’t-—we . peace- challenges bigger by anything, that the demonstration would remain far than once already again, years given experience that we had.” that I had seen in the six I had ful 1130 and did not the restricted zone enable City implement that the did not Order City against any persons disagreement with the discriminate

No. 3 because Further, Instead, there on the basis of their views. message protestors. of anti-WTO persons no evidence that those who were motivating adoption factor in. the text, to enter the restricted zone permitted in its was the Order No. as stated security problem that part of civil were City’s observation that “the level prompted adoption of Order No. 3. See danger persons disturbances (“[A] Hill, at highest in those areas S.Ct. property been ha[d] categories statute that restricts certain protests in which there the vicini- [were] if meetings,” speech and the lends itself invidious use ty of need [WTO] of communi- safety delegates significant there is a number ensure the of WTO cations, problem that the raising and workers. the same well as downtown residents solve, that fall out- plaintiffs did not submit evidence con- statute was enacted scope, others fall troverting the text of Order No. which is side the statute’s while inside.”). contradicting pur- not in dispute, Mayor poses recited No. 3 was content We hold chief.29 neutral, to address the other proceed time, necessary factors for a reasonable Appellants contend Order No. 3 place, it and manner restriction.30 permitted was content based because exemptions shoppers and downtown workers to enter the restricted zone. We

reject exemp these argument this because We next assess whether Order No. tions did not enable to discrimi narrowly signifi 3 was tailored to serve a it against nate disfavored. See One ideas governmental Supreme cant interest. The Family Now v. and Coun World One Court has held that statute is narrow “[a] Honolulu, ty n. 5 targets tailored if it and eliminates no ly (9th Cir.1996) (“Because these exemptions than more the exact source the ‘evil’ city don’t remedy.” Frisby, enable the discriminate seeks to U.S. disfavors, against narrowly ideas it don’t ren 2495. To be tai content-based.”). lored, a der the ordinance statute “need not be the least exemptions permitted shoppers furthering gov and down restrictive means of [the interests, go town workers to about their business but the restriction ernment’s] deposition Appellants submitted the testi- We also hold that Order No. 3 was not 30. mony Stamper attempt to of Schell and in an “viewpoint-based” Viewpoint on its face. dis- n City's purpose adopting establish that government crimination “when the occurs unlawful, City Order No. 3 was in that the prohibits speech by particular speakers, there- implemented purpose Order No. 3 with the of by suppressing particular a view about a sub- eliminating protestors the downtown from 1182, ject.” Sylvester, Giebel v. 244 F.3d area. But this evidence is consistent with the (9th Cir.2001) (internal quotation 1188 marks objective sons, per- of Order No. 3 to eliminate all omitted). Here, and citation Order No. 3's exceptions, with limited from the down- protests prohibit particular ban a did not plaintiffs town area. Even if could establish viewpoint, applied equally persons City adopting that the had an illicit motive in any topic. who wished to about As in 3, dispositive. Order No. would not be that Hill, "applie[d] equally Order No. 3 to used Supreme unequivocally The Court has held salesmen, activists, rights car animal fund- that it “will not down an otherwise .strike raisers, environmentalists, and missionaries.” constitutional statute on the basis of an al- 723, 530 U.S. at S.Ct. 2480. 120 leged legislative illicit motive.” United States O’Brien, 367, 383, 1673, v. 391 U.S. 88 S.Ct. (1968). 20 L.Ed.2d 672

1131 Ward and its may substantially speech Applying more the rule of burden here, necessary than to further the interests.” standard return to we the issue of 1037, Baugh, v. United States 187 F.3d whether Order No. 3 was narrowly tai (9th Cir.1999). However, significant “the First lored to serve a government municipalities that interest. seriously dispute Amendment demands No one could speech-re that provide ‘tangible government significant evidence’ has a in ‘necessary’ order; regulations maintaining public strictive are to ad terest indeed public duty interest safe this is a proffered government vance core d’Alene, City Edwards v. Coeur ty.” Supreme owes its citizens.32 The Court (9th Cir.2001). 856, The has declared that is a traditional “[i]t exer tailoring of the restraint must of course cise of the powers protect States’ correspond purposes to the safety serves. health and of their citizens.” Ward, Hill, (inter 715, 491 U.S. at 109 S.Ct. 2746 530 U.S. at 120 S.Ct. 2480 narrowly omitted); nal (holding quotation tailored re marks and citation Edwards, see also quirement long 863; is satisfied “so as the One [neu 262 F.3d at Now, Family substantial World One a regulation promotes tral] F.3d at 1013. government riot, that would In the City interest face violent a effectively regula duty achieved less absent the to restore order and to ensure the Albertini, tion”) v. United States safety (quoting delegates of WTO and the residents City 105 S.Ct. 86 of Seattle.33 also had an interest (1985)).31 seeing delegates L.Ed.2d 536 the WTO had the City required restoring providing security While the was not choose order and alternative, President, protect the least restrictive an assessment core downtown area to visiting dignitaries, general of alternatives can still bear on the reason- world and the tailoring public, ableness of the of Order No. 3 and and to the WTO allow conference to “narrowly proceed. tailored” whether it as re- quired. We have said that "if there are nu- argues 33.The dissent that our account of the merous and obvious less-burdensome alterna- public paint breakdown in order "does not [protected] speech, tives to the restriction on picture confronting City clear the situation certainly a that is relevant consideration in because officials” had left the determining whether the ‘fit’ ends between core downtown area and the violence had and means is Cincinnati reasonable.” implemented. subsided when Order No. 3 was Network, Inc., Discovery U.S. logical Dissent at 1160. But there is no con- (1993); n. 123 L.Ed.2d 99 n nection between an assessment of the vio- Edwards, 262 F.3d at 865. proceedings lence that when WTO occurred ongoing temporary were cessation of required 32. The district court was not to ac- proceedings violence after WTO had conclud- cept Appellants’ the conclusion of declarant day. may ed a fierce for the Even battle City’s only "transport that the interest was to calm, experience respite and the calm of delegates to the conference.” That was evening precede an can a storm in the morn- summary not an accurate of the record before ing. pro- was well aware that some analysis court. Nor in our district testors wanted to shut down the WTO confer- required pretend as if the movement of WTO ence violent means and that delegates City’s only was the interest in the following day, conference was to resume the face of riot. The record before the district strong and so there was a likelihood that widespread court showed and the violence "organized more violence serious nature of undisputed breakdown of civic order. On the Jordan, court, about to occur.” See Collins v. [was] City's facts before the district the inter- (1997). 110 F.3d at maintaining peace fairly est in and is order event, claim, presented. attempt to reduce In the dissent's based on a The dissent's City’s transporting delegates single "sweep p.m., at that the to of the streets” 8:00 interest wrong. analysis properly and Our focuses on the the streets of Seattle were "calm under during evening City's the of interest when it enacted Order No. 3: control” November protestors.36 at of the violent opportunity to conduct their business tivities Police conference; a the chosen venue for the that reports protestors said were “[t]he city that failed to achieve this interest fluid, establishing dynamic method of not soon have the chance to host would rapid deploy- that operation consisted of important meeting.34 another international protes- of non-criminal ment and the use pockets protestors to buffer smaller of tors contend that Appellants nonetheless in engaging significant criminal acts.” by safety City the net cast the was too Report WTO Action at 35. The vio- broad, unduly that it protest and restricted After area, protestors damaged City lent the and dis- an large too of and thus wasn’t conference, narrowly rupted turn con- the but tailored.35 We to these WTO were capture tentions. to able elude due the tens of of protestors thousands non-violent the Here, City tough problem. the had a implementation downtown area. The of protestors damaging City were the Violent necessary No. permit po- 3 was jeopardizing and of the progress WTO lice to restore and then to maintain order protestors conference. Yet violent Seattle, safety in and downtown for WTO breaking throngs the law amidst of lawful delegates public, conference and the and to protestors. setting, per this evidence allow officers to execute their law enforce- materially dispute, large is not by ment protestors arresting breaking of duties those prevent- numbers non-violent police effectively ed curbing from the ac- the law.37 1160, ignores undisputed narrowly Dissent evi- tailored because the restricted zone By p.m., danger large, dence. 9:00 officers were in was too and because the restricted zone being injured by ag- assaulted and protected speech. some banned forms of In addi- tion, gressive protestors advantage who held plaintiffs argue the Hankin that the higher Capitol ground. Ongoing "expend[ed] Hill's skir- necessary should have the effort a.m., mishes continued until 3:30 with offi- passage delegates to ensure clear for the "rocks, bottles, balls, fending golf cers off [WTO and from the venues with- conference] incendiary ... infringing unnecessarily devices.” WTO Action protestors’ out After Moreover, Report rights.” at 42. violent pattern converging, pro- had established testing, dispersing only and then to reassem- 36. We are concerned here with the effect ble later at another location. Id. at 35. Giv- large peaceful protestors number of protestors' en violent aim to shut down ability quell significant on the pattern the WTO and their of con- conference protestors. criminal acts of the violent duct, depiction a realistic of events in the impeding peaceful pro- or "buffer” effect of "temporarily record is that violence had undisputed testors is on the record. during evening subsided” of November "ended,” not that the violence had as the 37. The Hankin plaintiffs "[t]here contend that crediting Appellants' dissent maintains. Even attempt preserve was no lawful giving evidence and all reasonable inferences law, only just arrest those who broke the an Appellants, to the as we must under the sum- attempt protest.” to ban all But the record standard, mary judgment the record does not support argument. does not The restrict- permit a rational conclusion imple- ed zone created Order No. 3 was thought should have "ended.” .violence day mented protests after a full implementa- November 1999. Before the City’s 34. This interest is embraced within the 3, protestors tion of Order No. had been al- restoring asserted interest in order main- area, resulting lowed downtown taining security, necessary pub- which are overwhelmed, City's police being force as well commerce, safety, vitality lic effective significant damage disruption City. plaintiffs downtown area. If the Hankin con- 35. The Menotti plaintiffs attempt preserve and the Hankin tend that there was no plaintiffs argue protest that Order No. 3 was not lawful on December then that defining conclusively decision in Citing Supreme appropriate scope Court’s tailoring” in “narrow the context of es- Madsen, Baugh in as well as our decisions tablishing a protest buffer zone on activi- Navy v. Bay Area Peace United ty.38 States, Cir.1990), Ap- there are in-

pellants Appellants’ contend cases large contention that size of the restricted zone rendered it con- protest zones that validating restricted stitutionally impermissible ignores signifi- scope in than the restricted were smaller cant City considerations that confronted by No. implemented zone Order 3. This diagram officials. As seen from the of the argument misapprehends case law and zone, restricted the various hotels factual circumstances of this ignores the meeting venues of the WTO conference per a case. None of these cases establish spread were out across several blocks of city may that a se rule the boundaries downtown Seattle. The size of the re- during a creating draw restricted zone sensibly stricted zone cannot be evaluated Further, protest activities. none of these considering without size the area in cases dealt with the factual circumstances delegates which were housed and a small presented here: but dedicated freely move in order to do the work of the group protestors of violent who inflicted WTO conference. goal To achieve the city disruption and destruction on streets providing protection secure dele- WTO safety and threatened the of world lead- gates ensuring safe transit for dele- ers, by while obscured and sheltered about gates hotels, between venues and 50,000 peaceful protestors, all within a crafted the being restricted zone as bound- portion metropolitan concentrated of a by ed the outermost venues of the confer- Appellants’ downtown area. We decline delegates ence and the hotels where interpret staying.39 it, invitation to the above cases as As the district court saw “the by Appellants too is belied the record. Protestors were 39. make much aof declaration immediately adja- by allowed access to streets a submitted former law enforcement offi- cial, delegates' cent to the hotels and conference who contended that Seattle should protest, pedestrian sites. There was not a total bar to have used tunnels and dedicated scope roadways and the of the restrictions must be to facilitate the of WTO movement Yet, legal delegates. tested under the standards identified these do ad- contentions time, place, question above for and manner restrictions dress the fact that the tunnels in did speech. being not connect all of the hotels and venues by delegates. suggestions used WTO provide practical way the declaration no plaintiffs argue 38. Menotti also that Or- stop the behavior of violent significant govern- der No. 3 did not further a downtown Seattle area on November permitted entry mental interest because it Moreover, Appellants’ alternatives were persons into the restricted zone of not en- not a feasible means for the to balance its gaged protest. disagree. We There is no hosting interest in conference with WTO permitted evidence that those in the restricted safety delegates, reliable and the demon- part problem zone were addressed lived, worked, expressive activity. strators' interest in See No. 3. Persons who Kuba, (recognizing 387 F.3d at 862 n. 12 had other business in the restricted zone suggested that are "far less re- alternatives go imped- could about their without business precise regulat- strictive and more means of ing City’s ability to maintain a secure time, ing place, speech” manner Though environment in the restricted zone. just step tailoring” the first "narrow exemptions Order No. 3 contained that al- zone, analysis, and that a court must also consider persons lowed certain to enter the significant the alternatives both are feasible governmental "whether still furthered in- substantially speech”). Even by excluding and allow more terest from the zone the crediting Appellants’ giving activity security declarations and that was threat Appellants, all inferences to downtown area. reasonable enough provide counseling. to materials or only zone covered ter- sent [restricted] delegates and the The Court reasoned: ritory for the WTO safely from their hotels President to move prophylactic as [ T]he[restricted zone’s] only and lasted to the convention justified by difficulty [WTO] the of pect great conclude the during the conference.”40We say, a from protecting, pregnant woman court’s, analysis of this issue district physical legal rules harassment with and in accord with law. exclusively sound that on the individual focus behavior, impact of each instance of de reject Appellants’ also contention We manding each an accurate char case zone en- that the size of the restricted (as harassing or not harass acterization by an forced Order No. was overreaction ing) of each individual movement within needlessly rights the of restricted boundary. the 8-foot Such individual peaceful protestors. In the of a context of each ized individual characterization of thou- massive demonstration with tens ac movement is often difficult to make participants, pattern of once a of sands curately. bright-line A rule prophylactic established, chaotic violence had been may way provide protec be the best to expect police to be was unrealistic able tion, and, time, by offering at the same minute, by distinguish, minute those guidance avoiding subjectivity, clear and protestors benign with intentions and protect speech itself. those with violent intentions. In this re- 729, 120 Id. at S.Ct. 2480. gard, Supreme the decision in Hill Court’s Colorado, Here, 530 U.S. the size of the restricted zone was (2000), ap- particular 147 L.Ed.2d 597 has justified by difficulty protecting of Hill, upheld In a plication. Court world leaders an environment which a that made it group Colorado law unlawful small of violent de- clinic person disrupt within 100 feet of an abortion termined to cause chaos and to knowingly approach eight proceedings within feet of conference midst of thou- tens person another con- person’s protestors.41 without sands non-violent dif- say argument cannot that the al'ternatives were a feasi- dissent’s that Order No. 3 was not prevalent respond narrowly ble means to vio- protect "did tailored because it not gravely security lence that threatened the anyone perimeter,” outside of the Dissent at peace the WTO conference and the and order ignores or minimizes the core interest City. protecting addressed Order No. 3: foreign dignitaries President and who came to protected ‘'particular 40. a That Order No. 3 Seattle to conduct the business of the WTO. getting delegates method" con- WTO needed to restore maintain or- mean, argues, ference does dissent der the core downtown area to achieve this that this is the Order No. 3 "interest interest, "targets and Order No. 3 and elimi- actually See Dissent at 1168 n. 7. As served.” than exact nates no more source of the explained, brought we have Order No. 3 order remedy.” Frisby, 'evil' it at seeks U.S. area, security pro- to the core downtown 485, 108 S.Ct. We decline the dissent's viding safety delegates allowing suggestion city's means to achieve its proceed WTO conference to as scheduled. significant restoring interest maintain- supra See discussion at 1131-32. ing security narrowly can never be tailored wrong policy completely 41. The dissent is to characterize absent efficacious in elim- See, Ward, City’s City's inating "poor e.g., means as a fit” with violence. time, ("The validity interest based on the of violence 109 S.Ct. 2746 occurrence required place, regulations outside the It restricted zone. is not or manner does not turn on legal analysis City's judge's agreement responsible for our measure with the deci- concerning appropriate to restore order where it was most needed sionmaker the most security perfectly promoting significant government peace had to maintain method for degree in all areas outside the restricted zone. interests or to which those interests circumstances, might possible it indirectly ferent fered with against enforcement protestors. violent authorities, for law enforcement on an indi- basis, distinguish to between vidualized Appellants contend that Collins v. Jor- dan, peaceful protestors and those with violent Cir.1996), 110 F.3d 1363 controls circumstances, the outcome of this disagree. But case. intentions. these We Collins, In Mayor of San Francisco antagonism after the broad to the WTO responded sporadic protests by violent pervasive illegal into vio- ripened and directing police officers to “cause the dis- actions, disruptive lent not would have persal prevent and the continuation of practical require on a police, been con- gatherings people City anywhere basis, an tinuing to make accurate deter- County and of San whenever Francisco protestor mination of each as violent or not peace officer on the scene has reason to Appellants argue violent. also that police believe that the gathering endangers or is had more staffing should have extensive likely to endanger persons or property.” permit the street so that could pro- Id. at 1367. We affirmed the district anywhere testors to enter ar- simply and qualified court’s denial óf immunity to the rest and remove those who violated the officers, time, because “it clear at that say law.42 But we should hesitate to today, as it is that the occurrence of limit- requires the law such a in an solution ed violence and day disorder on one is emergency situation like that here where justification banning for all demonstra- law-breaking and law-abiding protestors tions, otherwise, peaceful and on the im- indistinguishable, were often and (or where mediately following day for an indefi- thereafter).”43 abiding might those the law have Id. at 1372. period inter- nite businesses, added);, promoted.”) (emphasis ing employees, should be see their Vincent, City Taxpayers also Council v. City’s as citizens well. 807-10, U.S. 80 L.Ed.2d plaintiffs acknowledged 42. The Menótti (1984) (upholding posting signs a ban on primary response municipality "the aof public significant streets to achieve criminals," crime should be to arrest the but public "avoiding interest of visual clutter” City "fail[ing] enough put faulted the though posted signs only even "add some- officers on the streets on November 30th to clutter). city's what” to the visual accomplish Hankin’plaintiffs task.” this Similarly, argument the dissent's that the City's police department also criticized the restricted zone's size “allowed” violence to enforcement, plan arguing for law that "com- zone, continue in areas outside the Dissent at planning mon tactics and would have unsupported by contrary to the provided a much more secure downtown record, places which some officers and notes sacrificing example, speech. without For it is hundreds of arrests outside the zone. theAs police practice common to establish lines of completion, conference moved toward buildings pro- defense around certain before calmed, police the situation were able “to arrive, squads specifical- [and] testors to have non-permitted escort and monitor demonstra- ly pursue intended to violent individuals with- perimeter tions outside the in manner con- in crowds.” permitted sistent with demonstrations.” Moreover, Report WTO Action at 45. After that, Appellants contend since there was correctly the district court found that the immediately decrease in violence in the hours reasonably concluded in Order No. 3 that prior imposition of Order No. this city danger "the level of disturbances and here the acted un- statement means that persons property highest [was] in those lawfully adopting No. 3. We dis- protests areas in which there are in the vicin- agree. ('WTO') ity Organization World Trade Collins, meetings.” we described the "limited vio- Contrary to the dissent’s asser- tion, place taken perimeter protect lence and disorder” that had did more than delegates; brought safety involving injuries people, none of WTO Order No. 3 "a few area, life-threatening. prin- security protect- to the downtown them extensive or ranting banning particular of a dem- we said Collins However, that our hold- onstration. narrow: ing was Id. at 1373. question not address We need scope plagued of the violence that if point example at whether some —for and the Seattle on November continuing is violence widespread there risks to world leaders present clear ability appears beyond that to be conference, attending the WTO render to control —a time-limited ban Collins, In Collins inapposite. the vio- lawful. might on all demonstrations lence that San Francisco faced before it whether, Similarly, we need not decide protest was much less severe restricted circumstances, specific, what and under Further, than Seattle faced this ease. vio- organized information that reliable speech through- San Francisco restricted a nature is about lence of serious county,44 whole while Seattle mere- out the might justify occur a determination ly restricted access within a well-defined a danger security public war- zone to facilitate event.45 a clear and exists present (2000), County http://quick- property damage available at cipal incidents involved (last appear facts.census.gov/qfd/states/06/06075.html been confined to an area of to have 1, 2005). city was [M]ost about four blocks.... revised Feb. any free from of unlawful conduct.” form Here, 110 F.3d at 1372. the violence argues 45. The dissent that we have allowed place substantially had taken more se- shaped” the constitutional framework "to be vere, involving police and WTO assaults on by our "characterization of the level of vio- fires, delegates, emergencies, medical evacua- at lence.” Dissent 1169 n. 12. The dissent stores, general tion of and a loss of civic retail application our misunderstands of First Moreover, order. invalidated an or- Collins doctrine, Amendment assesses the which through- der that banned all demonstrations City light used in of the ends the means Seattle, however, county. out the whole City applied needed to achieve. We have protestors could still demonstrate in all legal correct framework established areas outside the restricted zone. See, Ward, e.g., Supreme Court. 491 U.S. at that, city Collins does not hold when a is precedent, 109 S.Ct. 2746. Under this violent, dangerous protests confronted with understanding City's interest is essential case, type in this it must wait for further assessing whether Order No. 3 was nar- taking violence to occur before measures to See, rowly tailored to achieve that interest. Despite restore civic order. the dissent’s 796-801, e.g., id. at 109 S.Ct. 2746. Collins involving of Collins as “a characterization recognized heightened city also that a interest emergency adopted similar order under anal- prevent require to end and would violence circumstances,” 1169-70, ogous Dissent analysis: different factually legally distinguishable face a Today, we decide that the violence and case, weight places and the the dissent disorder that occurred in San Francisco on again Collins shows the dissent's minimiza- April type 30 falls far short of the of occur- supra in Seattle. tion of crisis See also rence that could have led reasonable that, (recognizing undisputed note 34 on the official to believe that it would be constitu- facts, had reason to believe and was impose city-wide ban on all tional entitled to believe that the violence attendant demonstrations, and that the law to that prior to the WTO conference had not ended clearly effect was established. enactment, just tempo- Order No. 3’s but had view, F.3d at 1373. In our Collins does rarily contempo- subsided would resume not dictate a conclusion that Order No. 3 is proceedings). raneous with WTO facially ad- unconstitutional because Collins significantly County restriction on 44. San a land area dressed broader Francisco has response significantly square speech enacted in to a miles. United States Census Bu- Quick reau, Facts, San Francisco less dire situation. California area, involving tens of order to the core downtown demonstrations Mass No. 3 and the restricted zone it implement- important an participants are thousands narrowly ed were tailored.46 great and have a political protest form of King, Luther Martin pedigree. plausible Consider While is Order No. 3 was not the least restrictive means of Washington, at which he Jr.’s march on achieving City’s goal, that is not what speech the “I Have a Dream” delivered Supreme precedent requires. Court 250,000 Washington on the a crowd of over question There no governmen- peaceful, generally a crowd is Mall. When (security tal here interest of the core necessarily create large protests do not area) downtown would have been achieved security, public safety even risks effectively less absent Order No. 3. Our managed by a though the crowd must be inject role here is not to ourselves into the instances of vio- city. multiple But once policing, methods of and-we do not do so in a breakdown social erupt, lence with Albertini, 472 at here. U.S. order, more city vigorously, must act and (holding validity regula- 2897 that the of a to restore order for all of its extensively, judge’s agreement tion “does not turn on a num- Adding large and visitors. residents responsible with the decisionmaker con- might be the bers of on the street cerning appropriate the most method cases, other cases solution some but in. promoting significant .government inter- violence. could lead to more intense ests”). conclude that Order No. was 3 We City’s significant governmental light of the narrowly a significant tailored to achieve restoring maintaining governmental and civic interest.47 interest City "absolutely empty 46. dissent views Grossman v. Port in terms of the ordi- The of land, (9th 1994), present goals.” 33 F.3d 1200 Cir. Id. at But nance's stated 1206-07. ing problem.” at suggest a "similar Dissent 1170-71. Grossman did not hold or that such a analogy dissent’s to Grossman is off the necessarily empty The is in all cases. distinction mark, pervasive Here, mis and reflects the dissent’s supports City's the record the distinc- apprehension scope the of violence and of visiting tion: The violence and disorder presented disorder in Seattle the WTO during days downtown Seattle the four of the protests. City Grossman addressed the of presence WTO conference was incident to applied permitting scheme as to a Portland's protestors, emergency personnel, of not busi- "small, protest, peaceful anti-nuclear involv employees, shoppers. or Grossman in ness 1201-02, ing eight people,” at six to 33 F.3d controls, on, way persuasive no and is not factually inapposite and case this which constitutionality city's necessary of a but tem- protestors involved tens of of and thousands porary response to a breakdown of civic order lawbreaking of violent ones. hundreds and emergency setting. did not in an Grossman being factually inapposite, In addition to is of involve such a breakdown in order and reasoning persuasive Grossman’s is not in an assessing City prop- help of Seattle's no analysis whether Order No. 3 was a reason- response er to a crisis that threatened time, restriction. place, able manner safety and citizens. of Seattle's visitors permitting permanent scheme Portland's incorrectly to our assess- The dissent refers any person to made it unlawful "for conduct City's interest as “confused and entertainment, ment of any organized participate or demonstration, following: because we list the inconsistent” gathering, public or to or foreign digni- "protecting president and address, park ... make in a without taries,” order,” "maintaining public “provid- permission.” Portland's written Id. at 1204. area,” security ing to the core downtown safety "protecting stated interest was delegates op- users,” "seeing had the that the WTO "maintaining park convenience of portunity business.” See Dis- to conduct their adjacent quiet in the to or near normal area of our n.6. A rational evaluation sent park.” at 1205-06 & n. 11. We held Id. interest, however, City's facially part discussion of the invalid in because this scheme restoring yields and main- groups displaying a common thread: between distinction taining area so groups displaying messages order to the core downtown messages and not application princi these ples presents very difficult question. On We must also assess whether hand, the one the restricted zone carved ample Order No. 3 left alternative chan portion out a of the downtown area where nels of communication. We have observed protestors message could not deliver their Supreme generally will “[t]he Court hand, directly delegates. On the other governmental down a action for not strike protestors were able to demonstrate open alternative ample failure to leave express immediately their views out gov of communication unless the channels zone, including side the restricted areas an entire ernment enactment will foreclose directly across street from the Wash public expression medium of across the ington State & Trade Convention Center community landscape particular scope and the Paramount Theater. The Policy, setting.” Ctr. Fair Pub. on protest the restriction extended at 1170 (quoting F.3d Colacurcio v. zone, bounds restricted and did Cir.1998)). Kent, A apply generally of Seattle. time, place, and manner restriction does reasonably expect could “simply not violate the First Amendment their be visible and audible to imaginable because there is some alterna delegates, if proximate even not as as the might tive that be less burdensome protestors might have liked.48 Albertini, 689, speech.” 472 at 105 U.S. protestors’ ability Given the to communi- course, S.Ct. 2897. “Of the First Amend directly cate across street from most guarantee right ment does not to com venues, given WTO the violence that municate one’s views at all times and preventing, Order No. 3 was aimed at places any or in may manner that be de analysis think the better favors the conclu- Bay Navy, sired.” Area Peace 914 at F.2d provided sion that Order No. 3 al- ample (quoting Soc’y 1229 Int’l v. Heffron for Hill, ternatives for communication. See Consciousness, Inc., 640, Krishna 452 U.S. 729, (“Signs, 530 at 120 U.S. S.Ct. 2480 647, 101 (1981)). 2559, 69 S.Ct. L.Ed.2d 298 pictures, and voice itself can cross an 8- However, an of “alternative mode commu ease.”). gap foot with Appellants argue may constitutionally nication be inadequate prevented that from communi- ‘ability if the speaker’s to communicate cating delegates with WTO at close range, ” effectively (quoting is threatened.’ Id. authority but there is no suggesting that Taxpayers Vincent, 812, 466 at U.S. right pro- have an absolute for 2118). 104 any any S.Ct. test at time and at place, or in proceed safely sensibly argued that the WTO protest- conference could It cannot be that securely. ing outside the restricted zone was not a theory viable alternative the mistaken that Again, urge city’s it is incorrect to delegates were not as accessible from that restoring narrowly means of order is not tai- position. Supreme Court has instructed city lored because the has not fashioned a require that the First Amendment does not remedy completely eliminating aimed at dis- individuals retain the most effective city. supra order across the entire See note communication, only tailored, means that individu- narrowly 42. For Order No. 3 to be "ability als retain the to communicate effec- Supreme precedent requires only Court that it Vincent, tively.” Taxpayers 466 U.S. at target opposed and eliminate “no [as more 812, 2118; Hill, 104 S.Ct. also at no see 530 U.S. less] than the exact source of the 'evil’ it 729, remedy.” (upholding Frisby, seeks to 120 S.Ct. 2480 a law that 487 U.S. prohibited having position 108 S.Ct. 2495. The was entitled individuals from to seek remedy accessibility target in its core area where WTO dele- that maximized to the gates speech). resided and worked. their

1139 Bl(a)ck 357, 375, 274 47 71 choosing. Tea U.S. S.Ct. L.Ed. of their manner (1st Boston, (1927) (Brandeis, J., 14 Soc’y City concurring), v. 1095 Of Cir.2004) (“[Although opportunity Ohio, by Brandenburg overruled v. directly body delegates interact with 444, 449, U.S. S.Ct. L.Ed.2d moving among them and distribut- by, say, (1969). Hughes Chief Justice rein literature, facili- would doubtless have ing forced these ideas a decade later De ability demonstrators’ reach tated the Jonge Oregon: v. audience, there is no consti- their intended greater importance of safe- requirement that demonstrators tutional guarding community from incite- particularized ac- granted be sort ments to the of our institu- overthrow cess.”).49 violence, tions force and the more society do not minimize the value to We imperative preserve is the need to invio- facilitating protest communications. rights late the constitutional of free Whitney Brandéis Justice California speech, press assembly free and free on the values gave us a classic statement opportunity order to maintain the speech: of free discussion, political free to the end that Founding believed that Fathers] [The government may responsive to the you think will and to freedom to as people changes, will if of the speak you indispens- think are means desired, may by peaceful be obtained discovery spread of polit- able security means. Therein lies the truth; speech ical that without free very consti- Republic, the foundation of futile; would be assembly discussion government. tutional them, affords ordi- that with discussion L.Ed. against nox- narily adequate protection (1937). dec- Supreme 278 Court over doctrine; menace greatest ious that the from commit- departed adés has never this people; pub- is an inert to freedom ment to Amendment values.50 First duty; political lic is a and discussion more Perhaps it has not been said with a fundamental principle this should be elegance than in these words of Justice government. the American choosing, evaluate this alter- Order No. their we do not 49. The district court also held that provided ample 3 alternative means for com- argument. native protestors because "had access to munication public beyond and to the the zone.” the media 397, 414, Johnson, v. In Texas 50. recently expressed a similar The First Circuit (1989), L.Ed.2d 342 Jus- 105 resolving challenge view to a demonstra- Court, wrote for the there is ”[i]f tice Brennan City tion zone established of Boston for underlying principle the First a bedrock Convention. the 2004 Democratic National Amendment, may it is that the Government Bl(a)ck Soc'y, 378 F.3d at 14. The First Tea simply prohibit expression of an idea pro- zone Circuit held that the demonstration society offensive because finds the idea itself ample alternative channels for commu- vided Punishing disagreeable. of the or desecration event, high-profile because "[a]t nication very this flag freedom that makes dilutes National] Conven- [Democratic such as revered, revering.” worth emblem so and tion, messages expressed beyond the first- has also remarked Justice O’Connor sight delegates hand and sound of the none- protection of free hallmark of the “[t]he propensity reach the dele- theless have a speech to allow 'free trade in ideas' —even television, radio, through press, gates peo- overwhelming majority of ideas that internet, Id. Because we and other outlets.” discomforting.” ple might or find distasteful require- there is no hold that constitutional 343, 358, Black, S.Ct. Virginia U.S. 123 v. 538 to reach their ment that be allowed (2003). precise 155 L.Ed.2d 535 designated audience in the manner of activity, Brennan in the landmark manner expressive long decision New so neutral, York Times as such restrictions are content Co. Sullivan: “[D]ebate uninhibited, robust, narrowly significant are tailored to serve a public issues should be interest, governmental open and leave am- may ... wide-open, it well include communication.”). ple alternatives for vehement, caustic, and unpleas- sometimes antly sharp government attacks on Accordingly, apply ample alter- 254, 270, public officials.” 376 U.S. practical natives test with a recognition of (1964).51 710, 11 S.Ct. L.Ed.2d 686 How- confronting the dire facts ever, think we do not that even the most early morning hours of December dur- vital expressions First Amendment ing the WTO conference.52 On the eve- —and for purposes analysis of our we consider ning day of the first of the WTO confer- political protest adverse WTO activities ence, shortly before President Clinton philosophy politi- internationalist to be arrive, was scheduled to Seattle was cal comment at core of the First tense, disarray its streets were from a automatically Amendment —can be said to long day protest, of violent and there was city overcome the need of a to maintain general disruption of civic order. The security order and for its residents and “ample alternatives” cannot be taken to visitors, in the face of violence. Burson v. mean that each protestor right has the Freeman, U.S. S.Ct. convey message his her the manner (1992) (“At 1846, 119 L.Ed.2d 5 the same preferred by that protestor would —that time, however, expressive activity, where, even in impossible case, be inas this pro- forum, a quintessential public may inter- testors numbered in the tens of thou- important fere with other activities for required sands. The to take which the property gov- is used.... action protect [T]he President Clinton and time, may regulate ernment place, delegates and the throughout the three re- Though singular importance right of these tbere is no constitutional to deliver a hardly First message protest directly Amendment values could be over- confrontational stated, Hill, kept target. an also must in mind that the intended See 530 U.S. at 716- ("[W]e applicable First 120 S.Ct. 2480 have Amendment was held to be continued to States, right maintain that against press 'no one has a govern- the here local ment, "good” unwilling recipi- even ideas through on an the Fourteenth Amendment’s ent. ... While the freedom to communicate Jonge, Due is Process Clause. De 299 U.S. at substantial, 364, 255; right every person "the of 'to be 57 S.Ct. see also Palko v. Connecti- cut, 319, placed let alone' 325, 149, must be in the scales with 302 U.S. 58 S.Ct. 82 L.Ed. ’ ”); right the (1937), of others to communicate.” see (incorporating 288 the First Amend- Bl(a)ck ("[A]l- Soc’y, also Tea 378 F.3d at 14 protections ment's into the Fourteenth though opportunity the directly to interact Amendment's Due Process Clause on the view body delegates by, say, moving with the of protections that the First Amendment's were literature, among distributing them and “implicit concept liberty”), of ordered would doubtless have facilitated the demon- grounds by Mary- ovenuled on other Benton v. ability strators' ence, to reach their intended audi- land, 794, 89 S.Ct. requirement there is no constitutional (1969). L.Ed.2d 707 granted that demonstrators be that sort of access.”). particularized challenges practical recog- 52. The dissent our emergency confronting City nition of the unsupported The dissent’s assertion that pragmatic application and our ample of the inapposite delegates Hill because WTO lacking prece- alternatives test as affirmative "particularly were not vulnerable” and faced dential only sanction. See Dissent at 1174. Our unpleasantness "the or inconvenience of demonstration,” contrary resolution of this issue large is not see Dissent at 1167 n.6, principle established law and danger visiting delegates reflects the that understates the requires only If that the First Amendment days of the conference. maining denying from a “rea- government chaos and violence permitted had refrain unabated, merely not opportunity” it would sonable for communication. continue Renton, inter- city a host for standing as 475 U.S. at lose its of conferences, City might (“[T]he also national requires First Amendment safety delegates have sacrificed only effectively that Renton refrain from permissible The of its residents. denying respondents opportu- a reasonable protestors available communications an adult theater nity open operate substantial, not No. 3 were under Order that, city....”). hold be- within We These available communica- perfunctory. protestors cause Order No. 3 allowed tions, periph- on the including protesting directly demonstrate across the street zone, perhaps were ery the restricted Washington & from the State Convention wanted to protestors who not ideal Theater, Center, Trade the Paramount delegates,53 in the face of present views major three out of four hotels where WTO wholly pro- they exclude but neither did throughout delegates staying, delegates’ purview. from the testors Seattle, Order No. 3 the rest downtown context, alternative channels of provided ample “ample In the alternatives” recognize that communication.54 We that our has made clear Supreme Court (recognizing protestors protestors determined to that demonstrated from violent faced Hotel). at the door of the Westin conference. front derail the WTO ability by appen- to so communicate is shown preferred protestors may 53. Some have major disputed that dices A and B. It is an aid to their No. 3 as restraints ap- delegates, as identified on the venues for delegates. safety, well as that of own However, Olympic, pendices, included the Seasons Four assessing purposes the consti- Sheraton, Cavanaughs, the and the Westin dueling tutionality of Order No. these, Olympic, hotels. Of the Four Seasons motions, may summary judgment assume Cavanaughs, Westin were located on and the protestors generally disfavored the re- Thus, of the restricted zone. the border straint, Appel- to those and had views similar appendices show*without inference Or- have asserted. lants protestors der 3 did not restrain from No. making Avenue their views known on Foúrth supporting is void of evidence 54. The record ' the restricted delegates and on Sixth Avenue outside argument that WTO dissent's street from three of the four protestors within the zone across the see and hear could major delegates situated venues for 25-square See Dissent identified block restricted zone. zone; only the Sheraton Ho- precedent belie this in the restricted at 1173. Reason Hill, 530 U.S. at on the restricted zone's border. proposition. See tel is not (holding ample declaration with Order No. 3 is the S.Ct. 2480 Consistent Gendler, message their protestor alternatives to communicate Michael submitted their not communicate with Appellants, even if could which confirms they preferred). audience where Ave- intended allowed on the east side of Fourth dissent, side appendices show that the east likely recognizing the lack nue. The most adjacent Cava- argues to both argument, of Fourth Avenue support its of evidence to naughs Olympic hotels. and the Four Seasons that the "neither does the record reflect imposed no limita- protestors, Order No. 3 on its face delegates hear could see and activity the re- expressive outside tions on means of communication that the alternative Action Re- See also WTO protestors stricted zone. to the were sufficient." available After 1,000 "group (noting a of about contrary port at 45 But to the Dissent at 1173 n. 16. assertion, on Fourth people” that marched southbound undisputed facts dissent's Avenue). no inferences in favor of We draw per of Order No. 3 record show that the terms statement; rather, ig- the dissent factual views di- our protestors could communicate their undisputed not fit its that do dele- nores the facts rectly most of the hotels where outside (show- theory. legal apps. & gates staying. See A B were Moreover, according undisputed dec- boundary ing bordered that Order No. 3's Kimerer, hotels); Chief Clark Report at laration of Assistant delegates’ Action WTOAfter 1142 takes account a

decision into balance of the and order. But not think we do the Con- requires stitution otherwise.55 competing expression considerations of We hold Order No. 3 was a consti- time, tutional place, and manner restric- speech tion on on its face.56 Because we night, there "several remaining days downtown hotels not for the several housing delegates within the buffer zone WTO legal analysis justifying conference. The police which were excluded" because be- nighttime "emergency” curfew in the cases is they "provide adequate security.” lieved could controlling permit adequate and does not undisputed protes- It is also that thousands of competing evaluation of the interests in the demonstrations, tors did not abandon their presented. face of crisis that was See also throughout but continued them the rest of the Gross, Oren Chaos and Rules: Should Re- downtown area for the duration of the WTO Constitutional?, sponses Always to Crises Be conference. Id. at 43-46. 1011, (2003) 112 Yale (outlining L.J. 1027-42 These alternative means of communication problems several emergency with doctrines of together taken are as a sufficient matter powers). analyze We decline to No. 3 Supreme precedent law under Court because doctrine, "emergency” though based on the gave they opportunity protes- a reasonable above, explained as we have the nature of the Renton, City tors to communicate. See 475 ¡and City's security safety interest in has been 54, U.S. at 106 S.Ct. 925. germane analysis to our of the test for a time, place, reasonable and manner restric- reject City’s 55. We alternative contention tion. permissible that Order No. 3 was a exercise of municipal theory control under a of an argument, 56. At plaintiffs oral the Hankin "emergency exception.” Citing to out-of-cir- City also contended that the should have re- cases, City argues cuit that Order No. 3 evaluated and reduced or eliminated the re- good was valid because it was taken in faith 3, stricted zone on December or December and there was a factual basis to decide that imposition after the initial Order No. 3 necessaiy Order No. 3 was to maintain order. December 1 had decreased the violence tak- Avino, 105, (11th See Smith v. F.3d 109-10 ing place in Seattle. We do not consider this Cir.1996), abrogated grounds by on other Steel argument because it was not raised in the Env’t, 83, Co. v. a Better Citizens for plaintiffs’ opening Hankin brief. Collins v. 1003, (1998); 140 L.Ed.2d 210 337, Diego, San 841 F.2d Chalk, United States v. Cir.1988) ("It is well established in this Cir- Moorhead, (4th Cir.1971); Farrelly, cuit that claims which are not addressed in (D.Vi.1989). F.Supp. 1112-14 These appellant’s brief are deemed aban- distinguishable, cases are and the standard doned.”). Even if we were to address this permit sufficiently voice does not contention, justify the facts in this case nuanced review of the First Amendment imposition continued of the restricted zone. rights at stake here. Smith and Moorhead Although Order No. 3 had the effect de- provided involved natural disasters that little creasing violence in Seattle on December warning municipalities. or no While Chalk unrest, undisputed there was evidence that violence involved civil it was the result of an continued outside the restricted zone unpredictable on De- high clash between students, cember 2 and case, including December an inci- school in contrast with this dent where King surrounded the which involved a world trade conference County Also, (resulting Jail planned in a lockdown of the months in advance. these jail). Given the employed place courts events that had taken emergency analysis specific ongoing on November 30 and the and limited contexts violence different from here, from December 1 to December contexts of natural disasters or area, justified maintaining of civil unrest confined in a smaller the restricted zone to preserve government’s security in each case the order and tool was eve- downtown ning curfew. Our area until political pro- case involves the WTO conference concluded. violence, coupled test days. with chaos and The restriction fol- here lasted four lowed a covering large restricted zone Were we a faced with such a restriction on Seattle, part months, of downtown public the core area duty in- access over weeks or a cluding delegates' convention venues surely and ho- reevaluate point. would arise at some tels, here, applicable, with the day restriction and But the initial evaluation on December

1143 the ad time, may permit unfettered discretion a valid No. 3 that Order hold essentially at “to roam restriction,57 ministering officials need manner and place, will, withholding permission dispensing or that Or- contention Appellants’ not reach assemble, ac picket, parade speak, Baugh, prior awas restraint. der 3No. opinions regarding cording to their own (“[E]ven prior restraints at 1042 187 F.3d in the, activity ques effect of potential the reason- if amount to may imposed ‘welfare,’ ‘decency,’ or ‘morals’ tion on the restrictions time, and manner place, able City v. community.” Shuttlesworth of the speech.”).58 147, 153, 89 Birmingham, 394 U.S. S.Ct. of 935, B (1969); see also 22 L.Ed.2d 162 Grief en, at 1262. that Order contend Appellants (and Ferguson’s Op Chief in Assistant issue No. addressed this 3 We Griefen. Order) unfet gave a improperly There, erations the Forest Service issued charged with excluding public the from discretion officers order tered closure Supreme portion Court a of the the Order. The within 150 feet of enforcing coming time, man and closed place, that “a Forest that was required has Nez Perce National adequate Griefen, standards 200 repair. contain regulation ner for construction and render decision closure order had ex- the official’s at 1258. The guide F.3d judicial authorizing review.” permit a subject empted persons to effective with Dist., officials, rescue Chicago entry, Park v. law enforcement Thomas L.Ed.2d 783 316, 323, workers, 151 of the employees construc- (2002). unfettered regulation granting doing A work the restricted company tion admin clo- charged challenged with Appellants to officials zone. Id. discretion alia, impermissible is inter regulation contending, istering that sure order First, much dangers. two too it creates Forest Service had discretion because par closure order. Id. may administering “intimidate[ ] regulation a such contention, ex- rejected even this speech, own censoring their 1262. We ties into public actu a closure of are never power plaining “[i]f if discretion disguised rather than a Plain v. forum is for valid Lakewood ally abused.” of potential purpose, Co., impermissible 108 Publ’g 486 Dealer U.S. ... censorship (1988); government self-imposed or see L.E d.2d S.Ct. Second, held: not exist.” Id. We does at 1262. Griefen, 200 F.3d also speech Washington Constitution's free [the of the con- light the limited duration compelling showing' a state only upon ference, clause] dura- reasonably proximate to the Tacoma, Collier interest.” of restraint. tion (en (1993) 854 P.2d Wash.2d City’s banc). interest that the We hold court exer- district We note that the 57. also security safety maintaining restoring Appel- jurisdiction over supplemental cised interest" within "compelling state Washington was a State also under claims lants' law, "the Washington because meaning Constitution, claims on those and dismissed [Order one and purpose [is] Viewing fundamental these claims summary judgment. a reasonable relation Washington bear[s] No. 3] challenge, we note a facial at 1054. See id. purpose.” Consti- achievement speech clause in its interprets free its summary Thus, court’s we affirm district parallel to the federal manner in a tution challenge Appellants' judgment dismissal of interpreta- First Amendment Constitution’s validity 3 under Wash- "diverge No. tion, Washington courts except that ington Constitution. State interest Supreme on the state from the Court test, time, place, and manner element rejected recently a similar 58. The First Circuit Washington believe restrictions courts] as [the Bl(a)ck Soc’y, F.3d at argument in Tea with imposed consistent speech can be 1144

In terms, First Amendment time, the fact that was a place, lawful and manner re- discretion to striction entry speech.60 Thus, authorize portions a closed of downtown may by Seattle covered area be during unfettered No. construc- lawfully closed with excep- tion limited is of no process concern. The public tions for safety officials, business granting authority to lawfully enter a owners, managers, employees, or and their closed markedly zone differs from the customers. process of licensing expressive activity. Such a process That “engender does not officers iden- had permit discretion persons with tifiable expression....” purpose risks free reasonable to enter the restricted zone does not render Order Id. at Lakewood, (quoting No. 3 constitutionally deficient.61 Order 757, 108 2138). U.S. at S.Ct. No. 3 facially restrained officers from ex- is instructive in evaluating Griefen cluding persons certain specifically author- how Order No. 3 implemented was ized to zone, enter the restricted and the through Operations Order.59 We have Operations Order phrase clarified the that, determined face, on its Order No. 3 purpose” “reasonable specifically to in- argues 59.The inappo- premise dissent is that Order No. public 3 closed a Griefen site because "the area into plain- which the forum. supra See discussion Part III.A. Like- sought entry wise, tiffs temporarily analysis our Appellants’ unbridled public lost its status forum.” Dissent at challenge proceeds discretion premise on the 1175 n. 17. The incorrectly dissent reads that Order 3No. resulted "a closure of a Griefen, taking the sentence upon it relies out public [] forum for a valid rather than a of context. we said that "the im- disguised purpose.” Griefen, Griefen See 200 F.3d at mediate area aof zone is construction not an 1259-60. area that has public the attributes of a forum.” added). (emphasis F.3d at 1261 We also 60. appeals The dissent Airport to Board of held in expressive "[w]hen con- Jesus, Commissioners v. Griefen Jews duct public grounds, occurs like a national (1987), S.Ct. 96 L.Ed.2d 500 forest, government can impose reasonable but inapposite case as it involved a time, place, restrictions,” and manner id. at speech facially restriction held to be unconsti- added), (emphasis 1259-60 "[i]f closure tutional under the First Amendment’s over- public of a is for a valid rather than a Moreover, forum breadth doctrine. Order No. 3 did disguised purpose, potential for self-im- not "virtually open-ended receive a interpre- posed government censorship ... does not tation,” but express rather contained limits on added). exist.” Id. (emphasis at 1262 More- whom officers could exclude from the re- over, we had "no doubt” in that "a zone, Griefen stricted such personnel, as WTO work- government entity may public close areas of ers, public safety officials. forests under repair,” construction just we had "no doubt” city tempo- that a "could 61. The any dissent intimates that statute that rarily good close for reasons ... a street en- gives an officer discretion to administer gulfed in a riot or an assembly.” unlawful Id. speech restrictions is unconstitutional be- at 1263. provides cause it opportunity "the for abuse.” The closure order we addressed in See Dissent dissenting at Our colleague Griefen part Forest, closed the Nez Perce National overstates the reach of the First Amendment’s which doubtless is and a public forum. In unbridled discretion "op- A doctrine. literal event, analyzed portunity may present for abuse” Griefen whenev- time, issues, place, reasonable and manner id. er an armed given officer of the law is author- 1259-62, protestors' also the but ity unbridled speech enforce restriction. We are challenge discretion premise on the that the concerned instead with whether Order No. public order closed a forum. Id. at 1262-65. "adequate 3’s contained guide standards to Similarly, analysis our in this case of the the official’s decision and subject render time, place, reasonable and manner issues judicial Dist., effective Chicago review.” Park raised Appellants proceeds (2002). on the 534 U.S. at 122 S.Ct. 775

1145 speech zone was not the location “work, specific at a restricted shopping elude re- immediately, outside the activity.” restrained , type other like reasonable or Further, there was no dan- zone. discre- stricted official grant a upheld haveWe 3 that officers the face of Order No. ger in on what is “reasonable” interpret to tion could indis- zone enforcing the restricted significant a to further restricting speech speak. to permission criminately withhold Bar- Oregon See S. interest. government protest any 1128, prohibited No. F.3d County, 372 .3 v. ter Fair Jackson restricted zone. Order Cir.2004) within the (9th topic an unfet- (rejecting 1139-41 Operations the supplemental stat- No. 3 and argument where discretion tered administering officers give did not power to Order body governing a gave ute persons to allow with reasonably the Orders discretion a fee permit applicants “charge the zone and to views county for “favored” inside its to reimburse calculated with “disfavored” views. exclude those costs receiv- necessary reasonable protes- topic viewpoint, or Regardless of applications reviewing ing, processing prohibited tors were from restricted gather- mass to hold outdoor permits for zone, did not fall with- added)). as were who pat- a others Should ings” (emphases exceptions. in the limited an official’sexer- from of abuse result tern discretion, remedy not proper is cise Operation Or- Chief Joiner’s Assistant rigidity that degree a upon ] to “insistí (including spe- gave guidance officers der but legal arrangements,” in few is found were individuals examples) cific which as-ap- remedy through rather is to seek zone.62 into the restricted permitted Dist., 534 Chicago Park challenges. plied “[vjehicles said, Operations Order and/or 775; 325, Oregon 122 S. at S.Ct. U.S. access in- ... are authorized pedestrians Fair, F.3d at Barter 372 a if have reason- perimeter side perimeter. entering for purpose limit- able were intending protest Persons work, shop- includes purpose A reasonable time, manner of their place, ed perim- within the specific at a location ping into cen- but were not intimidated speech, eter, type like reasonable activi- ac- or other all because soring speech their District, Chicago Park ty.”63 As in purpose a valid tivity prohibited for was city county’s practice” and established plaintiffs oral contended 62. The Menotti rely that, required to was "not Hague administrator v. Committee argument under for proper any objective to determine 83 factors” Org., 59 S.Ct. 307 U.S. Indus. constitutionally pro- (1939), fee). cases that officers These do the fact L.Ed. city any re- offi- persons grant into the discretion any to admit discretion hibit Rather, city 3 and the hold that officials Order No. the cases zone rendered cials. stricted We dis- guided by objective factors stan- Operations Order unconstitutional. must a a pursuant allowed Hague, making the ordinance decisions agree. dards when Here, public speech. a deny permit for city city a that restricts official ordinance grant the official into meeting entrance for reason believed were instructed officers persons the denial who had "proper," provided that those to be the restricted zone to riots, (defined "preventing purpose” distur- to include purpose of a "reasonable bances, “work, assemblage.” at 502 disorderly specific Id. location within shopping at 954; County Forsyth type reasonable see or other like perimeter, also n. Movement, The Menotti activity”) the zone. to enter Nationalist (1992) (holding unpersua- argument on this score plaintiffs' 120 L.Ed.2d S.Ct. granted ex- county’s parade ordinance sive. county administrator to a discretion cessive Operations argues that the Or- charge 63. The dissent proper amount unilateral- to determine der allowed "officers "no articu- permit, where there parade purpose,’ a 'reasonable ly what constitutes the ordinance or standards either in lated grounds Park, reasonably specific Cir.1998)).64 “[t]hese [were] objective, and The district [did] leave the deci- court concluded that Order sion to the whim of No. 3 as applied to the plaintiffs administrator.” Hankin (internal time, was a valid place, 534 U.S. at 122 S.Ct. 775 and manner re- striction. quotation omitted); plaintiffs The Hankin marks and contend citation see Fair, that Order also S. No. 3 was Oregon Barter unconstitutional as 372 F.3d at 1132; applied to them because Gaudiya Soc’y City Vaishnava cf. adopted a policy of County Francisco, arresting only San anti- of (9th protestors Cir.1991) (“The WTO within the 1065-66 restricted zone. ordi- nance [violates the First Amendment be- Hankin submitted declaration in oppo- provides cause specific it] no grounds for sition City’s motion for summary granting or denying permits: no explicit judgment in that, which he testified on limits are placed on the Chief of Police’s 1, 1999, December he participated in a discretion.”). We hold that Order No. 3 group march at Park Westlake Operations and the Order provide did not within the restricted zone. Hankin testi- unfettered discretion to officers who were police fied that surrounded group administering the restricted zone. arrested any them without warning, and without determination toas whether

C persons those exemptions within the We next plaintiffs’ address the conten to Order that, 3. Hankin No. testified tion that No. Order 3 was unconstitutional immediately after arresting large applied.” “as “An as-applied challenge al group of Seattle then leges that the restriction speech on un turned portion to another of Westlake applied constitutional as litigant’s Park, where Hankin standing, particular speech activity, though even him arrested and others him beside with- may law capable be application valid determining out persons whether these others.” Ass’n, v. 1-A Agric. Kuba 387 came within exemptions to Order No. 850, 852, 856, F.3d slip op. 14645 3. Accepting Hankin’s declaration testi- (internal Cir.2004) quotation true, marks mony as as we must for the purposes omitted) (quoting Foti v. City Menlo of reviewing the district grant court’s with no further might elaboration what be prove ciation failed to how handful of considered type 'other like reasonable activi- would congestion demonstrators cause or a ”ty’ at Dissent 1176. dissent’s selective danger 859-60, safety, see id. at and be- quotation ignores guidance provided cause the policy association’s was not nar- specific the enumeration of activities con- rowly penned tailored when demonstrators stituted a "reasonable purpose,” such as small, fairly in "three peripheral areas” and working shopping. or Operations That the "sufficiently did not match” the interest of listed these commercial activities preventing congestion that have could been served "guide the official's decision and equal achieved with effectiveness but less subject render it to effective judicial review.” speech-restrictive alternatives, see id. at 861- Dist., Chicago Park at S.Ct. 62. Kuba differs from the case before us 775. because significant Kuba did not pri- involve or violence such as had marred Seattle. Kuba addressed a facial and as- corresponding governmental applied challenge to a interest pol- state association’s Kuba, icy prohibited preventing congestion poten- individuals from demon- with strating circus, at impact tial safety, association’s congestion rodeo and before the occurred, except designated expression "free zones.” was less than Seattle’s interest in Kuba, order, poli- restoring violence, F.3d 853-55. We held the after widespread cy facially unconstitutional including because asso- vandalism and riot. government of the local ating procedure’ Hankin’s City, judgment to summary (2) decision- “by showing that the entity;” the arrest is evidence testimony was, as a matter of state making official was a “discriminato group persons this law, authority whose policymaking a final restriction speech of a ry enforcement fairly repre- said to may acts edicts or discrimination viewpoint amount[ing] decision;” in the area of policy official Foti, sent Amendment.” of the First violation (3) with showing that an official “by Dept. v. 635; Police see also 146 F.3d at authority either dele- policymaking final U.S. Mosley, 408 to, or ratified authority that the gated (1972) (invalidating, Equal 212 L.Ed.2d Ulrich, of, 308 a decision subordinate.” disorderly conduct grounds, Protection a (internal marks quotation F.3d at 984-85 within picketing which barred ordinance omitted). have held and citations We session, exempt in but of a school 150 feet “may inferred from municipal policy a in .be of school picketing peaceful ed or evidence of re- widespread practices “the dispute, because in a labor volved for which constitutional violations peated on a message the is distinction operative were not dis- municipal officers the errant sign”). picket Nadell v. Las charged reprimanded.” or be held liable City may 924, 268 F.3d Dept., Metro. Police Vegas arresting if offi only the a violation such Cir.2001) (internal (9th quotation 929 City policy of product a cers’ conduct was omitted). marks citation Servs., Dep’t Monell v. or custom. of Soc. (as then-Mayor of the Although Schell 2018, 658, 691-694, 56 436 U.S. at policymaker City) City’s was the chief (1978). have ex As we L.Ed.2d 611 he implemented, time Order No. 3 was the may attach to a munici “Liability plained: that he had “relied deposition in testified municipality itself only where pality carry out [police] [Order officers through violation constitutional causes the had a secure and make sure we No. 3] cus policy or government’s a ‘execution of safety of our citizens zone for our—for by tom, lawmakers or by made its whether Thus, safety delegates.” of and the fairly may be or acts those whose edicts “delegated to have can said Schell ” Ulrich policy.’ represent official said subordinate,” in this ... authority to a Francisco, 308 County San City of Ulrich, case, Stamper. See Chief Police (9th Cir.2002) 968, (quoting Mo F.3d 984 turn, in Stamper, at 985. Chief 2018). A nell, 694, 98 S.Ct. planning responsibility delegated the “a deliber exists when municipal “policy” protests City’s response to WTO is course of action to follow a ate choice Joiner, explain- in Joiner. Assistant Chief by alternatives among various made from No. of Order implementation ing City’s for es responsible the official officials take the ... 3, going said that: ‘We’re to- the respect with tablishing policy final conference [WTO] where the core area Pembaur v. in subject question.” matter any demonstra- prohibit ... and occurring 483, Cincinnati, 469, 106 U.S. remain- area for the tions within core (1986) (plurality 89 L.Ed.2d S.Ct. week.” der of the Luman, F.3d Fairley v. opinion); that the of their contention support curiam). Cir.2002) (per suppressing policy adopted City had 3, No. ways speech applying to show are three There anti-WTO (1) declara- submitted plaintiffs Hankin municipality: custom of policy or stating persons or cus tions65 from practice longstanding “a showing restriet- to enter the them to allow oper- refused the ‘standard tom which constitutes par- plaintiffs' motion port of the Menotti sup- were submitted 65. These declarations zone, ed though they even that, came within one Herkal 1,1999, testified on December exceptions to Order No. unless forcibly officers removed anti-WTO stick- anti-WTO removed buttons or stick- ers from her clothing, and that officers ers.66 Martha Ehman testified in a decla- told her “You’re not allowed to wear stick- ration that on December officers ers.” enforcing the restricted zone permitted The statements of Assistant Chief her to enter after she said that she was declarants, Joiner and the taken in the going to work the restricted zone. She light most favorable to Appellants, create a that, testified after being permitted to en- genuine issue of material fact as to wheth ter, officers told her stop and remove a er it policy apply piece tape from backpack her that had Order No. 3 in a manner that excluded it, the words “NO WTO” on and that offi- protestors. anti-WTO Viewing the cers told her she would be arrested if she light evidence most favorable to the comply. did not Ehman tape removed Hankin plaintiffs, such a policy may be and was proceed. allowed to Lauren Hol- due to “widespread inferred practices loway that, testified in a declaration or repeated evidence of constitutional vio 1, 1999, December officers enforcing the lations” and the absence of evidence that restricted forcibly zone removed anti-WTO police officers discharged repri or stickers from clothing her on the basis that making for manded the discard of anti- she was in the “No Protest Zone.” Ronald expressive WTO entry materials an ticket Matyjas that, testified on December to the Nadell, restricted zone. See 1999, while walking to his office located (internal F.3d at quotation marks and zone,

the restricted an officer him told that omitted). citation We reverse the district he could not wear the “No sign WTO” that grant summary court’s of judgment to the he had jacket, affixed his that an- and City on the of constitutionality Order No. 3 other officer tore off sign per- without applied to the Hankin plaintiffs, mission. Andrew and we that, Russell testified remand this December issue for trial. he was Because we so entry refused hold, into the we reverse restricted zone the district he was court’s order because wearing a WTO,” button that denying said “No class certification and remand that only after removing the button issue was he was the district court for reconsiderat allowed into the restricted zone. Rita ion.67 summary judgment, tial However, and in opposition to any persons who were excluded City's partial solely summary motion for judg- because of the content their visible regard ment. communications without to the ex- emptions within Order No. or those such as employees shoppers, who came within Stamper Former-Police Chief testified also Order No. exemptions, 3’s but who were al- via declaration that “the action of the officers lowed to enter the restricted zone after [administering the restricted zone] when con- removing communications, visible such as fronted through with that WTO slash it ... stickers, WTO, buttons or hostile may to the was, know, you symbol take the away, put it as-applied assert an First Amendment claim. your backpack, or whatever the solution ability Their against assert a City, claim particular was to that problem.” as contrasted with a claim against specific interacted, officers with whom will de-

67. As Order 3 was No. on its face a reason- pend on the factual determination whether time, place, restriction, able and manner their policy claim is based on a City of the persons follows that all who did enter or Seattle, an issue on which we have identified who were excluded from the restricted zone genuine a issue of requiring material fact because of order that cannot assert a valid claimants, trial. As to express such individually claim or as a opinion class member. no requirements whether the for class IV grant

However, we affirm defen to individual judgment summary A regarding Stamper Schell dants individual claims turn to the We them. against claims plaintiffs’ Hankin regard to Menot- plaintiffs. With Menotti a against liability imposed “Supervisory ti, concluded Seattle the district court capaci in his individual official supervisory to believe Me- probable cause police had inaction action or culpable his ty for own pedestri- the crime notti had committed of his or control supervision, training, obstructing an interference68 subordinates, acquiescence his granted court sum- The district officer.69 of which deprivations constitutional Fourth on Menotti’s mary judgment made,' conduct or for complaint is ar- state false claim and law Amendment indifference or callous showed reckless granted court district also rest claim. The City Larez of others.” rights on Menot- summary judgment 630, 646 Cir. F.2d Angeles, 946 Los claim, holding ti’s First Amendment 1991) (internal quotation punctuation, present evidence had failed Menotti omitted). Here, Ap marks, citations Menotti acted arrested the officers who evidence, other no presented pellants have appeals the Menotti City policy. under 3 and the No. adoption judg- of Order summary than the grant of court’s district Order, Schell motion that either of his and denial Operations ment to issues. in the al on these part summary judgment took Stamper personally or caused violations leged constitutional the po whether first address We their through violations constitutional Menotti’s ar cause for probable lice already held have We individual actions. is cause probable for rest. “The test constitutional, facially No. 3 to be within and circumstances facts whether Schell evidence that and without knowledge are sufficient the officers’ a role played personally Stamper rea or person, one prudent warrant a violations, di either constitutional alleged caution, believe, circum in the sonable indif culpable or rectly by acquiescence or shown, has com suspect that the stances liability ference, no is basis there to commit mitted, committing or is about capacities. Puerta, in their individual them against States an offense.” United Cir.1992) (internal plaintiffs by presented evidence F.2d marks, a citatidn or create quotation to establish punctuation, not sufficient was omitted). on Me concerning question presented fact of material genuine issue claim is wheth or notti’s Fourth Amendment liability of Schell supervisory position person prudent er a Stamper. vehicle, require satisfied, another or to leaving person or a may be certification action take evasive of a vehicle to a person or driver in the dis- for initial consideration that issue . physical Seattle contact." pro- action avoid appropriate any due and court after trict § Mun.Code 12A.12.015. ceedings. Municipal 12A.16.010 Code section Seattle 69. 12A.12.015 Municipal Code section Seattle per-A public obstructing a officer. prohibits person A interference. prohibits pedestrian per- peace officer where obstructs son son, where pedestrian interference commits alia, "[¡Intentionally physically alia, pe- inter "intentionally obstructs person, inter "[i]nten- or public officer” interferes with To “obstruct vehicular traffic.” destrian or by delays public officer tionally or hinders is defined traffic” pedestrian or vehicular by stop given such disobeying order to sit, lie, an walk, stand, object in place an "to § 12A.16.010. Mun.Code Seattle by officer.” passage another as to block such a manner officers who arrested Menotti would approached have group, they yelled Menotti’s believed that Menotti committing was “stop, police,” and that Menotti started pedestrian offenses of interference and running ob- immediately thereafter. Whatev- structing an officer. may er by fact, decided the trier of the summary judgment stage we must Menotti submitted video evidence credit Menotti’s testimony and conclude showing just before his arrest Menotti that a jury reasonable could determine addressed a group small pedestrians while that there was not probable cause to arrest unaffiliated with the group by walked un Menotti for obstructing an officer. A gen- impeded. This evidence is by contradicted uine issue of material fact exists whether deposition testimony of Seattle Police there was probable cause to arrest Menotti Officer Christopher Myers, one of the offi officer, an obstructing and this issue Menotti, cers who arrested who testified also must be by resolved trial. that he saw Menotti “causing a group to We hold the district court erred block both vehicular and pedestrian traf granting summary judgment for the We, course, fic.” empowered are not on Menotti’s Fourth Amendment claim. make factual determinations when faced We reverse the district grant court’s with conflicting evidence. proce this summary judgment dismissing Menotti’s context, dural summary where judgment § 1983 claim under the Fourth Amend- given City, we must credit the ment and his state law false claim. arrest video by Menotti, evidence submitted We remand these claims to the district consider all evidence in light most court for further proceedings. favorable to Menotti. Menotti’s video evi dence showed neither he nor the We turn to Menotti’s First Amendment group he addressed at all interfered with claim. Menotti alleged in complaint his pedestrians, and a jury reasonable could violated his First Amend- find from evidence, this if jury failed to ment rights when officers arrested him. Myers’s credit Officer testimony, that the The district granted court summary judg- officers did not have probable cause to ment to City, the reasoning that Menotti arrest genuine Menotti. A issue of materi produce “failed to sufficiently probative ev- al fact concerning pedestrians whether any idence of City policy or custom that impeded by exists, Menotti and re deprivation caused a of his constitutional quires trial for resolution. See Anderson rights.” Based our ruling above that Liberty Inc., Lobby, 477 U.S. 247- there genuine is a issue material fact (1986). 106 S.Ct. 91 202 L.Ed.2d City whether the had a policy during the WTO conference of suppressing

We also hold genuine that a anti-WTO issue of persons views of who might material fact exists otherwise as to have police whether qualified entry for probable zone, had into the cause to restricted arrest Menotti for we reverse the obstructing an district judgment officer. court’s Menotti testified in this deposition issue and that remand it when approached officers district his court group, for trial. the officers no issued directives or warnings, and that he ran because the B

officers wanted the group to disperse. Similarly, the video evidence submitted Sellman was arrested for distributing Menotti any does not show obvious audible leaflets within zone, the restricted and the warnings by police immediately before Me- viability of his depends claims entirely on contrast, notti’s arrest. Myers Officer the resolution of his constitutional chal- testified in deposition that, when lenge officers No. presented Sellman

1151 unlawfully bags. searched their ar- targeted that he was no evidence light viewing the evidence Even views. his anti-WTO because rest Stedl, he has offered favorable to not most testimony Rather, undisputed revealed method of satis proving first De- evidence only after arrested was that Sellman there policy requirement: fying Monell’s that Sellman ascertained tective Stevens prac “longstanding of a not evidence by being the was Order No. had violated the ‘stan which constitutes tice or custom come with- he did not zone when restricted gov procedure’ of the operating dard local further that exceptions, its in one of Ulrich, at 984 entity.” disperse. ernment obey order not an did Sellman Dist., Indep. v. Dallas Sch. (quoting Jett grant of court’s the district affirm We 109 S.Ct. defendants U.S. in favor of summary judgment (1989)). Similarly, Stedl L.Ed.2d claims.70 on Sellman’s officer] show “that unidentified [the didn’t C law, a final was, matter of state as a edicts or authority whose policymaking that in deposition Stedl testified represent official fairly may acts be said his unlawfully searched bag his was at 985 area of decision.” Id. policy by an unidentified unlawfully seized fliers omitted). (internal Nor marks quotation that contended officer. Stedl that “an offi evidence establish did Stedl’s an § liable, 42 U.S.C. based on authority ei policymaking cial final with The district and seizure. search unlawful to, ratified authority that or delegated ther summary judgment for granted court of, Id. A a subordinate.” decision claim, holding that Stedl City on Stedl’s wrong by single constitutional showing of City policy of a evidence presented had not against a claim may support police officer As have unlawful seizures. to commit munici officer, against but a claim that theory on a prevail already explained, only with may proceed evidence pality liability, must show Stedl municipal municipality’s acted under the officer pursuant officer acted the unidentified Here, Stedl did or custom. policy City. policy custom an official acted officer show unidentified 2018; 691-694, Monell, or custom policy an official under Ulrich, at 984. F.3d City. City policy no evidence There was summary court’s affirm district We or the backpacks search of authorizing the on Stedl’s in favor of judgment argues such fliers. Stedl seizure of claims. alleged an from may inferred policy be during by officers practices

pattern of such D conference, depo- offered he but the WTO Amendment brought First him- Skove only persons, testimony of two sition against Officer claims Amendment that Fourth who said protestor, and one other self brief, waived. we deem opening ap- Sellman's dispute parties whether Sellman 70. 1004, Co., F.3d 1012 Boeing v. summary grant of Humble peals district court’s Cir.2002) ("Issues but in a brief raised Stevens, who the officer Officer judgment to aban- by are argument deemed supported not Sellman's reference Sellman. arrested also injustice.”); see absent manifest opening was a doned brief in his Stevens Officer 28(a)(9)(A) ap- (requiring that R.App. P. Fed. "[s]ummary judgment should statement "appellant's con- favor, contain pellant's brief must with remand Sellman's entered them, with cita- and the reasons City, by tentions damages caused determine parts of record to the authorities Schell, this tions Because Stamper, and Stevens.” relies”). appellant by argument in on which supported was contention Smith for Smith’s seizure of sign.71 Skove’s that his conduct unlawful in the situa- The district court concluded that tion he 201-02, Smith Id. confronted.” was entitled to qualified S.Ct. 2151. If we immunity on determine at the first step Skove’s Fourth that there Amendment claim nowas constitutional viola- because tion, Smith that ends probable qualified immunity cause to in- believe quiry. Id. Skove had committed crime (violating 3), Order No. and because the seizure We address Skove’s Fourth Amendment involved exigent circumstances. The dis- claim and consider whether Smith violated trict granted court also summary judg- Skove’s rights by constitutional seizing ment to Smith on Skove’s First Amend- sign. Skove’s Under the Fourth Amend- claim, ment holding that Smith’s actions ment, “right people to be secure time, valid place, and manner re- persons, houses, their papers, and ef- striction on speech. appeals Skove fects, against unreasonable searches and district grant court’s summary judg- seizures, shall not be violated.” U.S. Const, ment to Smith on both claims. amend. Supreme IV. Court has held case, that “in ordinary sei- review We the district court’s zures of personal property are unreason- grant of qualified immunity de novo. Eld able within the meaning of the Fourth er v. Holloway, 510, 516, 114 510 U.S. S.Ct. Amendment, more, without ... unless ac- 1019, (1994). 127 L.Ed.2d 344 Under Sau complished pursuant judicial to a warrant Katz, cier v. 194, 2151, 533 U.S. 121 S.Ct. issued a neutral and magis- detached (2001), 150 L.Ed.2d 272 we a two-step take trate after finding probable cause.” Illi- approach in determining whether Smith is McArthur, nois v. 330, 531 U.S. qualified entitled to First, immunity. we (internal (2001) S.Ct. 148 L.Ed.2d 838 determine whether Smith violated Skove’s omitted). quotation However, marks when right. 200-01, constitutional Id. at 121 faced with “special law enforcement S.Ct. 2151. If we answer needs,” affirma the Supreme Court “has found tive, proceed to determine whether that general, individual, certain circum- right was “clearly established” such that may stances render a warrantless search “it would be clear to a reasonable officer or seizure reasonable.”72 Id. complaint, alleged his Skove suspects during the execution aof search him, No. 3 was applied warrant, unconstitutional Summers, see Michigan v. 452 U.S. and that Officer Smith violated First Skove’s 692, 702-05, 101 S.Ct. 69 L.Ed.2d 340 Amendment and Fourth Amendment rights in (1981), weapons limited searches for based on seizing sign. Skove's allege did not Skove Ohio, suspicion, reasonable Terry see v. his complaint that the was liable under 1, 27, U.S. 88 S.Ct. 20 L.Ed.2d 889 theory municipal liability alleged for an (1968), circumstances, exigent see United Fourth Amendment violation stemming from Place, States protest sign. Smith’s seizure his (1983). 77 L.Ed.2d 110 haveWe de- exigent fined circumstances to include "those 72. Exceptions requirement, to the warrant circumstances that would cause a reasonable example, searches, include administrative person entry to believe necessary that ... 594, 598, was Dewey, Donovan v. 452 U.S. 101 2534, prevent physical to harm to the (1981), S.Ct. officers 69 L.Ed.2d 262 searches arrest, persons, other incident to destruction of see United relevant evi- States Ed v. dence, wards, 800, 802-03, 1234, escape suspect, U.S. of the 415 94 S.Ct. or some (1974), 39 consequence L.Ed.2d 771 other improperly frustrating automobile check le- searches, point gitimate Dep’t see law Mich. State Police enforcement efforts." United Sitz, v. 2481, U.S. 1195, 496 110 McConney, S.Ct. v. 110 States (1990), L.Ed.2d 412 Cir.1984) (en banc). reasonable detention of 2796, 504, Kentucky, 413 U.S. his that seizure contends Smith (1974) (recognizing had 37 L.Ed.2d Smith lawful because sign was Skove’s might an arrest cause for probable in “the being to arrest Skove cause probable weapons, or other justify the seizure of not within Order zone and the restricted crime, a with- or instruments of evidence Smith agree We exemptions. No. 3’s warrant”). supporting A reason out a Skove be cause to arrest probable settings some police the would be cause, inside by engaging duties disregard competing to might have that he without evidence zone restricted where, complete arrest pursue to an No. had violated Order exempt, was Skove Yet, here, we suspect away. walks as a However, that Smith it is uncontested because, if aims reject police position this been Had Skove not arrest Skove. did they do not are so weak that a to arrest arrested, precedent permit would ample incongru- it seems suspect, then detain a “incident to arrest.” or seizure search evidence can be 113, 116-17, say that a seizure of Iowa, 119 ous Knowles v. de- (1998) a We lawfully made without warrant. (noting 142 L.Ed.2d S.Ct. to warrant the exception cline to extend for the rationales two historical that the ar- “(1) incident to requirements seizures are exception arrest incident to search officer instances which in order to rest suspect disarm the need to crime, no but makes (2) seizes evidence custody, and the need into him take trial”). arrest. use at for later evidence preserve the doctrine to extend

We decline light Viewing the evidence give protec to arrest” incident “search Skove, must as we most favorable or seizure search tion for warrantless of sum grant court’s reviewing the district may It made. be no arrest is when quali to Smith based mary judgment to arrest Skove be declined Officer Smith encountered immunity, when Smith fied away and Officer Skove walked cause requiring exigency no there was Skove post. his What maintain decided to Smith a warrant. sign without seizure of Skove’s making for not reason Officer Smith’s ever on Decem place took encounter When the justified be arrest, cannot the seizure met with police had Seattle ber an arrest arrest. Had incident to an and vio of non-violent thousands tens of sign made, argue the could been Smith inflicted severe who had lent McArthur, evidence, was seized as to the downtown, which led damage on 331-32, 121 but without S.Ct. at U.S. No. 3. of Order City’s promulgation legiti arrest, not see how Smith an do (and offi resources City’s enforcement law need concerned about a mately could be themselves) severely. taxed had been cers being of a crime from evidence preserve relatively calm situation faced a But Smith destroyed.73 encountered and time he point City did not 2. The on December argument Skove merit There is some dealing that Smith evidence present to ar- probable is cause that where there he encoun protestors when with violent may seized rest, the crime evidence of contrast, deposi Smith’s By if tered even the Skove. valid the seizure considered that, just before testimony indicated tion See Roaden completed. arrest had to be shown seizure voluntarily lawfulness aban- argues that Skove 73. Smith existing at the before or sign when he on evidence interest in based Skove's doned departure after seizure. away after the Skove’s Smith the seizure. walked from time of sign point. argument misses on this score. This not material seizure is sign's away. The walked Skove was seized before 1154 Skove,

he saw talking Smith was with a general proposition. broad In other fellow officer “taking words, in atmo- “[t]he contours of the right must sphere.” Viewing the evidence in light sufficiently be clear that a reasonable Skove, most favorable to Smith when seiz- officialwould understand that what he is ing sign Skove’s actively not then was doing right.” violates that in engaged others from preventing enter- D’Alene, Graves v. Coeur F.3d ing zone, the restricted nor was he imme- Cir.2003) Saucier, (quoting diately in engaged combating violence. 201-02, (altera 2151) 533 U.S. at 121 S.Ct. fact, that, Skove submitted video evidence original). tion in Skove, the light most favorable shows question before us be then immediately others were not present comes whether a reasonable officer in and the circumstances were exigent not position Smith’s would have understood when Smith confronted Skove and seized that he could not lawfully seize Skove’s sign. his sign an absent arrest Skove or exigent We also decline to establish gen circumstances. rejected We have posi eral exception to the Fourth Amendment’s tion seizure could be made based on requirement warrant that, for conduct ab probable arrest, cause to when the arrest special sent needs consistent with the Su was completed. Moreover, not viewing the preme precedents, Court’s is asserted evidence in the most light favorable to It long “reasonable.” has and consis Skove, say we cannot the circum tently exceptions been law that to the were indisputably exigent stances at the warrant requirement preceding searches time place Officer Smith confronted and seizures are for defined categorical Skove and seized sign. his Because the McArthur, circumstances. See U.S. exceptions to the Fourth Amendment’s 330-31, 121 S.Ct. 946 (listing examples of requirement warrant have been categori exceptions to the requirement). warrant defined, cally and because “in the ordinary Because an made, arrest not was and no case, seizures of personal un property are exception justifies established the warrant- reasonable within the meaning of the less facts, seizure on undisputed con Fourth Amendment ... unless ... accom clude genuine that there is a issue of mate plished pursuant judicial to a warrant is rial fact bearing exigency and whether sued a neutral magistrate and detached Smith’s sign seizure Skove’s violated the after finding probable cause,” McArthur, Fourth protection Amendment’s against 326, 330-31, U.S. unreasonable seizures. (internal L.Ed.2d 838 quotation marks proceed We step second of quali omitted), we hold that a reasonable officer fied immunity analysis, under which we position Smith’s would have understood must determine right whether that his warrantless seizure of sign Skove’s clearly Saucier, established. 533 U.S. at without an arrest and without exigency 201, 121 S.Ct. 2151. have held: We guarantees offended the of the Fourth right

Whether a “clearly established” Amendment. We therefore reverse purposes qualified immunity is an grant district court’s of qualified immunity inquiry must be undertaken light Smith Skove’s Fourth Amendment of the specific case, context not as claim.74

74. Skove contends that he is entitled sign. zure of Skove’s requested On this sum- summary judgment given Skove, reversal mary relief for we view the evidence Smith, grant but also to a of summary judg- Smith, light most favorable to rather than establishing ment liability Smith's sei- as we have viewed favorably it above most Sellman, Menotti, by claims other asserted First Amendment for Skove’s

As Stedl, Smith, that the determine and Skove. we against claim summary granted properly court district on his prevail To to Smith.

judgment V claim, pro must Skove Amendment First “de the that Smith observed for showing once Justice Stewart evidence vide speech political terms, Court, [Skove’s] chilled uncertain or in no Supreme terred or a substantial was deterrence and such Amend of the First guarantees “[t]he that conduct.” in factor motivating [Smith’s] who people have never meant ment 1462, 1469 Tadlock, 21 F.3d v. Sloman or views protests propagandize want to Cir.1994). deposition testified Smith do so when right to have a constitutional and Skove seized approached that he and wherever however ever and engaged was sign because Skove Skove’s Spock, please.” Greer knew to be activity an Smith in protest, (1976) (quot 47 L.Ed.2d 96 S.Ct. Skove submit by No. 3. prohibited Florida, 47- Adderley v. U.S. ing to court district no evidence ted (1966)).75 L.Ed.2d moti actions were that Smith’s establish critically charged with the city is When be political to by opposition Skove’s vated hosting a con of important responsibility actions were motivat or that Smith’s liefs leaders, a in which setting of world vention speech. Skove’s to chill by a desire ed city and world are on the eyes of the most light Viewing the evidence reputation nation’s country, and our our Skove, conclude that to we favorable well, have the city must at stake summary granted properly court district in respon order civic to maintain power First on Skove’s to judgment Smith unduly interfere way that does not sible claim, affirm the dis and we Amendment or with civil convention gathered with on this issue. trict court of balancing desired freedom liberties. order, to the need for civic and expression E val these of essential accommodate both grant of court’s the district reverse We necessarily ues, discretion a measure of on Menot- judgment to summary city, on the scene permitted must be false arrest Amendment ti’s Fourth remedies to fashion knowledge, with direct trial. claims for and remand those claims may It be lost. order once to restore grant court’s the district We also reverse disrupt who subset a violent Smith, and immunity Officer qualified impair by their actions order will civic of Smith’s liabili- trial the issue remand for law-abiding pro of how manner scope and sign. We of Skove’s seizure ty for the views. present their are able to testors of all dismissal court’s district affirm the place the time circumstances at declaration testified Smith Skove. justify exigency to showed sufficient seizure sign he intended seized Skove's when he See, McConney, 728 e.g., seizure. warrantless he whether Skove to determine “detain Mr. exigency issue factual at 1199. The F.2d zone.” Smith be was authorized a trier of fact. presented must “[g]iven the declaration in his also said protests in area extent of the nature and quoted observation Stewart's pursue not to assignment, I Justice my decided decision of the Court’s the context arrest him made to detain Mr. him Skove military base. restricting protest on a my ignoring di- No. violating [Order 3] however, idea, permissibil- animates light same Viewing evidence rectives.” time, place, manner Smith, ity reasonable there conclude that favorable public protest in a forum. restrictions fact whether genuine issues material are Given the breakdown public order Operations Order. respects, most Seattle, that confronted we decline to particularly hold in regard to permissibility unconstitutional City’s implementation City’s adoption of Order No. 3 and procedures necessary to safety restore accompanying Order, its Operations we af- security to its residents and to the firm judgment of the district court. visiting However, world leaders. As occurred this explained above, viewing the case, city a hosting important an meeting evidence in light most favorable to may besieged with tens of thousands of Appellants, in some instances con- persons, some with lawful intentions may duct have gone too far and infringed protest, best tradition of civic but others certain protestors’ individual constitutional with violent and disruptive aims. When rights by making the content of their ex- violent substantially disrupt pressed civ- views entry the test for their into order, ic there necessarily must be conse- the restricted zone. We reverse and re- quences for all if city satisfy is to its mand to the district court the Hankin superordinate duty to provide safety plaintiffs’ as-applied challenge to Order security. respecting While liberty of No. as well as the issue of class certifica- protestors, city permitted must be to act tion. We also reverse and remand to the reasonably, within the bounds of the Con- district court identified regarding issues stitution, to fulfill responsibilities its the arrest of Menotti and the seizure of providing physical security and the main- personal Skove’s property. On the record tenance of required order that is us, for all of before we conclude that trial of disput- city’s residents and visitors. ed facts is necessary on the claims for which we reverse and remand. reject

We the facial challenges to Order 3,No. as well as the general challenge to PART, AFFIRMED IN REVERSED police discretion implementing it under PART, IN AND REMANDED.

PAEZ, Judge, Circuit concurring and alternative channels communication. I dissenting: also disagree with majority’s determi-

I concur nation that Order majority’s provided holding adequate No. Seattle’s Civil Emergency Order guidance Number to the law enforcement officers (Order 3) No. was content-neutral and who were assigned the task of maintaining significant served a government interest. perimeter of the “No Protest Zone.”1 agree, however, I cannot that Order No. 3 Accordingly, I respectfully dissent from narrowly was tailored open and left ample According Seattle keep Assistant Police protest-free. officials, Chief City this area Harvey Ferguson, was the "that term that was police, and demonstrators all used the term being used” until came "word out ... area, "No Protest Zone” to refer to the was inappropriate an term” and the name therefore throughout I use that term this dis- changed was zone.” "restricted As I ex- senting opinion. I.B., below, plain in Part City’spolicy was we look majority’s expression, alternative avenues and III.B of

Parts III.A.2-3 Instead, “we deeper than the text. must opinion. [Cityj’s authoritative con- consider No. 3 had been Assuming that Order ordinance, including its of the structions time, manner restriction place, and valid implementation own interpretation the ma- agree I with protected speech, County v. Move- Forsyth Nationalist it.” that the Hcmkin plain- class action jority ment, U.S. material triable issues tiffs have raised added). (1992) (emphasis 120 L.Ed.2d 101 offi- regarding fact their claim may the text of Order No. 3 While suppress No. 3 cials enforced Order neutral, City’s policy content of those individu- speech Amendment First selectively that it was apply the law such Trade sought the World als who narrowly tailored to serve its asserted The Rankin class Organization’s policies. non-speech-related preserving interest of permitted to should be plaintiffs action safety and order. As Seattle challenge to the Order with their proceed it, put might “while No. [Order -3] Council I concur Part and therefore applied, [it],re- legal scrutiny paper, have met majority opinion.2 III.C. explicitly in actions that were in- sulted my disagreement with the heart of The of protest.” Report tended to limit the that Order No. 3 majority is its conclusion Committee, Accountability Review WTO tailored, ample that it left narrowly was 2000) Council, City (Sept. at 5 Seattle that, expression alternative avenues (hereinafter Report”). “ARC guidance gave sufficient implemented, as I. Facts to determine officers to law enforcement No Protest admitted into the who could be A. majority concludes that the Zone. The majority’s in the picture painted The activity in the expressive all City’s ban on surrounding the of the events version surrounding the WTO blocks square capture in Seattle fails to WTO convention and hotels that housed WTO convention majority story. agree full I with the searching our First delegates passes a dan- protestors violent created agree, I review. cannot Amendment in chaotic Seattle gerous, even situation is inconsistent my in that conclusion view responsive that warranted substantial free long protecting tradition of with our to restore order. City measures may protection speech even when interest City surely significant had a The seem inconvenient. light in action. Even taking in remedial inquiry however, majority violence, City’s is correct that our the serious 25-square- No. 3 neutrality of Order off a response cordoning into the content — itself. to restrict the face of the Order area of downtown Seattle focuses block not constitution- whether Order No. 3 all forms evaluating But —was majority opinion omits ally justified.3 The open ample narrowly tailored and leaves C, summary affirming the No. 3 is er from Part IV. I hold that Order 2. Because would invalid, against judgment ruling Todd Stedl. constitutionally I would reverse ruling Thomas adverse as to district court’s whole world majority states that proceedings. "[t]he 3. The further Sellman and remand for rampant and chaos in violence As I ex- witnessed from Part IV.B. I therefore dissent III, at the outset of the WTO infra, of Seattle I concur the streets plain detail in Part in more as the meeting.” Maj. op. at 1120 n. 7. But majority opinion and D of the in Parts IV.A images suggested, City those Council Doug have Seattle Menotti and Skove that Victor accurately the situa- may reflected not have evidence to create materi- presented sufficient Seattle, dissent, demon- peaceful political howev- tion disputes for trial. I al factual Second, several crucial although facts undermine its I suggest do not portrayal city First, confronting the violence of a crisis. con- was in- significant, majority’s trary exagger- account majority’s assumption, pervasiveness. ates its Report, The ARC justified by No. 3 was not “the dire facts example, noted that according even confronting early morning estimates, highest only “well under one 1 during hours of December the WTO percent” of the demonstrators in Seattle Maj. op. conference.” at 1140. As Assis- engaged in acts of vandalism or violence. tant Seattle Police Chief Edward Joiner’s Report Mayor ARC at 3. Paul Schell clear, deposition testimony made the deci- agreed that “expected he had the vast sion to declare a state emergency and to majority protestors of the peaceful, to be impose police perimeter around the and, fact, it turned out that the vast downtown area was not made in direct majority protesters peaceful.” were At response to the violence and vandalism. press conference at approximately 5:00 That decision instead followed the realiza- p.m. Mayor on November Schell main- many tion that of the peaceful protestors tained that for the most large, well-organized from the labor march part friendly they “were our sons — leaving would not be Seattle. The crowd and daughters, they were our neighbors, simply larger than the police had an- people were the who we work with. ticipated. Joiner testified that And there’s no reason to be afraid of the march [ a]s concluded and it became them.” peaceful protestors even evident that a portion sizeable prevent made efforts to by, the violence marchers were not going to leave the example, blocking vandals from access downtown area as anticipated and it they store attempted windows to break. became clear that we going were not Further, majority the paint does not a bring able to the situation under con picture clear of the situation confronting trol taking without some sort of drastic City they officials at the time adopted the action, I made the decision that the Order. The violence of November 30 had only recourse we had was to —the ended before implement- Order No. 3 was police establish the perimeter where we nighttime ed. The curfew—not challenged provide security could delegates for the gone here —had into effect and the streets and so forth. of downtown Seattle were calm and under Making the decision to impose police the Tuesday control. On night, at roughly perimeter, City the drew no distinction pm, police 8:00 the did a sweep of the peaceful between and those and, streets according to Joiner’s testimo- likely Joiner, to cause for exam- ny, discovered that “[a]t violence— time all of ple, during testified that process, this the demonstrators had left. The situation peaceful concept non-peaceful and pro- was under quite control. It peace- testors “merged.” ful.”4 Nonetheless, by press coverage strators "were drowned out record. majority provides Report of disturbances.” ARC at 4. "reason to believe ... that the vio- lence attendant to the WTO conference had majority's

4. warning The a fierce ”[e]ven enactment, prior not ended to Order No. 3's calm, may experience battle respite a just temporarily but had subsided and would evening precede calm an can a storm in contemporaneous resume proceed- with WTO morning[,]” maj. op. at 1131 n. is ings.” Id. summary at 45 n. 44. At the supported by alarmism neither the evidence however, judgment stage, we must view the nor the law. The fact that violence had ended light evidence in the Seattle’s streets were most calm when the favorable to the Mayor undisputed issued the nonmoving party. City, Balint v. Carson Captain Pugel Police at- erupt- that Seattle Jim on November 30 the violence As that, force ed, responded with police July tended in officials “said on concluded, likely report Council’s scale of to 10 the WTO rated about authorities situation. “As intensified the Furthermore, high 8.” the violence that they resorted control of the streets lost leading up occurred the weeks compromised methods that sometimes City on put conference should have provoked rights of citizens and civil often they plan notice that would need to well at 3. Report ARC disturbance.” further at 1120. Ac- maj. op. for the event. See out of response sometimes police “was Ac- cording Captain Pugel’s own After in- threats faced” and proportion to the police by officials were aware Report, tion assaults on “seemingly gratuitous cluded expert Rob- Id. at 4. Plaintiffs’ civilians.” 28—if not earlier —that least November Klotz, the former Commander ert protest groups facilitating were “intent on Traffic Division Special Operations 1,500 between 500 and ‘civil disobedience’ force, police conclud- Washington, D.C. They arrests” on November 30. also knew emergency declared that “the state of ed they at that time that had insufficient re- large 1999 was to on November “that not be able to might sources and City’s own emergency an extent many persons.” sustain the arrest of so continued, making.” Klotz surprises. There should have been no why demonstra- Being seen and heard is event, if feel come to the tors however, According Report, to the ARC so, doing from it will they are barred “[planning for the WTO was driven more simply angry make the crowd and cost considerations that un- political police It also makes the dangerous. city’s ability cope dermined the with the dissatisfaction, rather than the object of Report at disorders that ensued.” ARC It can also original protest. source of people “city some Report govern- motivate found that the wanted to be involved activity who never through ment failed its citizens careless originally. poor communication of planning, and naive bring sleepy to res- consequence “was One confused and procedures, its and plans homes and mobilize idents out of their imposition police leadership, indecisive ” at 11. Report ‘resistors.’ ARC them as questiona- in emergency measures of civil City apprised large were officials similarly con- ways.” Id. at 3. Klotz ble planning coming protestors number of City adequately that “did not cluded in confer- well advance of the to Seattle conference,” train for the WTO plan or in that Klotz stated his declaration ence. unlikely highly focusing its attention of the size preconference estimates “[t]he were, ac- than events rather “events consistent generally the crowds were intelligence, quite cording to the available actually who people the number of with (i.e., civil disobe- likely organized to occur police training At a on demon- attended.” vandalism).” and some control dience management and crowd stration Cir.1999) (en banc). day on one is not ited and disorder violence F.3d demonstrations, light Only by viewing evidence in the most banning all justification for City majority con- can the otherwise, favorable to immediately peaceful on the "temporarily sub- that the violence had clude (or period day following for an indefinite improper determi- With this factual sided." nation, Jordan, thereafter).” Collins v. sidesteps binding majority circuit 1996). (9th Cir. law, of lim- holds that "the occurrence which

B. implemented Order No. “a reason- purpose coming able does not include into in City imple- The manner which the protests, the area for so I think the lan- worthy mented Order No. 3 is also of more guage gives itself rise to the claim that searching inquiry majority than the af- no-protest this had become a At zone.” plaintiffs great submitted a fords. Friday, least as late as December offi- City’s deal of to evidence undermine the cial documents referred to the area as the necessary claim that Order No. 3 was “ protest’ ‘No zone.” Seattle Police Offi- contain and of No- prevent violence Christopher Myers cer deposition his Notably, vember 30. the Order allowed testimony anyone visibly display opposi- who did not referred to it as “the zone, tion to the WTO to enter the without zone. protesters There was where were regard dangerousness or likelihood of allowed. There protesters was where violence. police While the scoured for “No testimony weren’t allowed.” And from buttons, signs WTO” there was no several reveals that offi- bags evidence officers checked guarding perimeter cers used the term crowbars, weapons, or bombs. Lauren “No Protest Zone” when speaking with Holloway, example, stated her decla- public. ration that the officers she encountered at Stamper deposition clarified in his perimeter “did not search me for point “[f]rom [the line officers’] view weapons or ID. They ask for effectively meant anybody coming in to stickers, signs interested our which protest” would be excluded from the zone. they either or confiscated forced us to Joiner testified that officials even con- remove.” Andrew Russell recounted a sidered allowing the idea of in peaceful experience similar in his declaration. But rejected it, demonstrators but I “because partial” this “selective or No Protest Zone think at that very time it had been made City’s safety security did not serve the clear there going peaceful were not to be

interests, explained: as Klotz demonstrations within that area.” If a security goals does not serve [ I]t to have person so, attempting to enter the zone did supposedly very secure area where a purpose not for the shopping, but in- large number of inessential people are intended, individually, stead peacefully allowed to enter and roam at By will. protest, “she would not have been allowed giving a pass people free who claimed in.” live, work, shop even at locations zone,

within City’s orders al According report, Council’s very large lowed a number of people “officers the field were briefed with into supposedly this secure area.... instructions that pro- there would be no Serious people terrorists or other bent tests allowed.” Report ARC at 15. Se- breaking the law will have no trouble attle Police Officer Ron Smith testified taking off their anti-WTO stickers at the that, according to briefing “the was [he] boundary pursue plans their once given,” protesting legitimate was not a rea- inside the zone. Patrol, son to enter the zone. The State cooperating one of the law enforcement plaintiffs presented significant also agencies, policy made that explicit: evidence that even its re- gen- as members of the sponse plan public permitted entry, eral were for December 1 that protes- stated “[o]nly away people legitimate tors were turned from the with No Pro- business will enter, test Stamper area, Zone. Police Chief Norman (working allowed to that, etc.) Operations live, testified under the protesters, Obvious people [sic]. business, refused; people they that remove it and she then in- legitimate without will not be al- if give tape to information formed her she did not remove the refuse public arrest, In a televised in the area.” she would be lowed arrested. To avoid warned, address, “Anyone goes Joiner Ehman did as the officers instructed. will be arrested protest into that area to downtown, Matyjas Ronald also worked immediately.” just at his architect office north of the Pike grant- those who should have been Even Market. Place He stated in his declara- according to to the zone the ed access tion that on December he wore his Order, people terms of the such as plain typical work attire “with one difference: I zone, who lived or worked the were x sign 8.5 attached to the a[n 11”] entry they if “No stick- denied wore WTO” my back of raincoat that said “No WTO.” signs. protest ers or carried Officer Smith work, walking attempted As he was he him conveyed policy testified the pass through perimeter he was but if Mayor you live by “[e]ven was stopped by why an officer who asked him there, supposed protest- are not to be you walking through he Matyjas was the area. “the area is down ing” because replied way that he on his was work. and west the Fourth [sic]. south of Seneca go The officer told him he could not down- Mayor plain- said.” The That’s what coat; sign town with that on his another examples tiffs offered numerous of Seattle sign Matyjas’s officer tore the off without just police enforcing policy. such a Mi- permission. Matyjas noted that oth- “[t]he Evanson, example, chael Louis stated standing nearby er officers nothing did way his declaration that while on his stop or correct the officers that confronted Avenue, 4th he fitting a tuxedo [him].” officers snatched his stopped police who Ehman, Matyjas, and Andrew Russell ripped hat and off sticker read: all stated their declarations that once working If it doesn’t work for “WTO: they political signs, took off their for the families, it work.” An officer also doesn’t remainder of the week were not poncho Evanson’s without reached under stopped by police. They papers holding he was permission, grabbed stopped wearing political messages. papers them. The and would return Gendler, Michael W. another Seattle at- party at the were invitations to Method- torney, partner was a at a law office locat- nothing ist that had to do with the Church edge of the zone at Fourth protest. ed on He declared that Avenue and Pike Street. Ehman, attorney Martha an who worked employees and three of his left their he zone, passed declared that she within carrying protest signs three which office perimeter by following through read, respectively, “Downtown Workers normally took to walk to same route she WTO,” Free Against “Protect every day. people three work She saw Speech!,” “Say No to WTO” with through perimeter pass business suits imposed picture “No Sale” over a words being stopped, without but she was they attempted to enter globe. When casually and officers asked her dressed zone, stopped them and refused They going. pass she was let her where showed the offi- entry even after Gendler worked, told them where she but when she and address. Gen- his business card cers away yelled the officers for as she walked No. 3 and told the officer dler cited Order they stop her to when noticed he right to enter because that he had masking written in words “No WTO” were “owner of a business within They asked her to was an tape backpack. on her just group grabbed-the sign limited curfew area.” The was not he from me and it, took threw it over his shoulder. And got allowed to enter. Gendler then rid of said, I I my sign “Can have back? It’s sign group his and the walked.one block my property.” Maybe at that point he entrance, further to another where Gen- said, no-protest “No. This is a zone.” (no longer displaying dler anti-WTO messages) walked An simply through pe- grabbed officer then Kantorowicz and removed the stickers from her being stopped ques- clothing. rimeter “without by any tioned the officers.” His em- Holloway read, a sign carried “It’s however, ployees, signs still held their Duty, Right, Fight Our It’s Our To they stopped by were officers who told Power.” She also wore stickers with vari- “they pro- slogans. them would not be allowed to ous WTO-related ap- When she proached they perimeter, grabbed officers attempting ceed because were to en- ” sign, crumpled up, her it and threw They ter a ‘no protest again zone.’ away police. They behind a line of told displayed again their business cards and her they and Kantorowicz that were in the entry. were denied “Both were informed they “No Protest Zone” and that would proceed could without their have to every take off anti-WTO sticker or signs, They but not with them.” aban- they would be arrested. When an officer signs proceeded doned their to enter arm, grabbed Holloway’s him she told she the zone. get would remove the stickers herself “[t]o cases, many other police officers sim- him to leave me alone.” ply attempt made no to determine whether Bastían, Sue a schoolteacher who trav- or not an individual was authorized to en- eled to downtown for Seattle the WTO they spotted any ter the zone once anti- recounted, protests, “I just was a little old Russell, WTO material. Andrew lady my way to the Methodist church example, stopped by an officer as carrying signs bag, these in a I and was attempted he wearing to enter the zone simply walking my way down the street on “No WTO” button. An officer told him to the church.” In a bag, she carried one that he could not wear his button inside sign that read “Free Trade is Slave Trade” the “No He used specif- Protest Zone. Cops another that read “Global ic term.” Russell was allowed to enter the Corps.” Global police She was outside the keep zone and the button after re- perimeter and she did not believe that she it from moving putting his clothes and the was within the zone by established away. button Nonetheless, No. 3. she stated in her dec- Liad Kantorowicz and her friend Lauren laration that a police approached officer Holloway stopped by police at the her passage, and blocked her perimeter. Kantorowicz a sign held I then was surrounded four or stickers; wore three “No two WTO” stick- five others. somebody One them —or ers and one sticker her chest which my jacket. took my WTO sticker off rain read, “Attention Police Enforcement Offi- The sticker my was underneath back- cer, I speak you. ... back. my refuse I de- one of the And took signs away my phone mand to have call. I from me and looked at demand to them and handed them to policeman, call another lawyer.” The sticker also included who took them over onto the sidewalk phone lawyers. numbers of An officer no- and broke them. sign ticed Kantorowicz’s and asked to take it away. give When she refused to it to The officers told her she was not allowed officer, recounted, zone, Kantorowicz signs refused to return her him, you quiet “if and then asked “Am I in a told her don’t be zone where and leave, you I will have arrested.” I doing what am is illegal?,” and he repeated that I would be arrested if I experience Herkel had a similar

Rita not leave. did At the way to the Methodist Church. her Spring, Fourth and northeast corner of immediately by I was confronted two or waiting were Herkel and her Mends riot police three other officers with vi- change they could cross the light so long night sored helmets and sticks who police ap- officers street when three me, “Go!”, began repeatedly to shout them. Herkel and her .friends proached ... “Just Go!” As I did not want to be wearing green approxi- lime stickers were arrested, I put my the card back x “No to mately 5" that read WTO.” (west) pocket and walked down back said, not allowed to The officers “You’re Spring Street. stickers,” began tearing the wear and similarly Plaintiff Doug Skove went clothes without stickers off Herkel’s protest hearing downtown to after a news They searched her friend’s permission. pro- broadcast describe the zone as a “no permission, but did backpack, also without carry- He went test zone.” inside the zone say looking were for. While not what ing sign “I right said have the forcibly removing the stickers from anoth- non-violently.” protest Skove testified at group, the officers tore er woman deposition his that Officer Ron Smith her coat. grabbed sign out of his hand without Seattle, Green, attorney Harold an “I’m permission, saying going Skove’s protest heard on television that a “no any take that” before other communication downtown. zone” been established As him between the two. Smith told to come declaration, in his struck “[t]hat he stated away over but Skove instead walked and edict, unconstitutionally broad so me as an pursued. was not This was cap- incident personal expe- I from determined learn videotape.5 tured on Officer Smith never scope what the of the edict was.” rience ascertained whether Skove was authorized the words “I PROTEST!” on He wrote Operations Order to be within the and, of one of his cards back business tearing sign away zone before from tie, wearing approached a suit and an offi- deposition him. testified in that he Smith perimeter cer at the and “appeared determined Skove politely, you question, “If I ask asked walking belong there” because was “[h]e subject Iwill to arrest?” He said sign.” around with a Skove then went I pulled my I would not. then the corner of Fifth Avenue and Pike Street my pocket, card from showed business sign, where another and took out second PROTEST!,” “I him the side which said sign again unidentified officer took him, “If I to cross this and asked were permission his hands without from card, display this would I be line exchange. prior without verbal subject to arrest?” people stopped by immediately that I Other responded He actively attempting I to more subject to arrest at that moment. while noted, however, ously City’s motion for videotape approaching on the 5. The shows Smith Mayor asking, judgment, "What did the tell summary Skove we take the evidence in Fourth, you? Okay? other Other side of side plaintiffs light most favorable to the Seneca, right?” ran toward of Skove, Smith then recollection of the therefore credit Skove’s street, crossing the who was Balint, event. 180 F.3d at 1054. sign previ- grabbed his out of his hands. As 1166 arrested, zone, likely yeah, and confirming City policy get would most

within the ” pur- my .... protesting not a “reasonable that was not intent was meaning of the Order. pose” within the many investigation, After months of Sellman, in plaintiff appeal, Thomas a this City Council concluded that “Se- Seattle heard on the news that Seattle had sufficiently mindful ... of attle was not protest people a “no zone” where adopted protect- to an environment the need create pro- could enter for reason other than ing rights speech assembly.” “basically He went downtown to find test. Report City’s policies at .5. The ARC really meant and whether out what was implementing targeted Order No. 3 ex- way had accu- the broadcasters some activity pressive but did not seek to distin- Mayor rately described the intent of the pro- violent and non-violent guish between down and the of Seattle.” He walked fit testors or to better-tailor the between sidewalk, zone, within the and distrib- security problems legiti- and a Seattle’s criticizing ability uted leaflets the WTO’s mate solution. endangered species He overrule laws. Stevens, stopped was Detective S.D. Time, Place, II. Restrictions on activity who determined Sellman’s Speech and Manner of “obviously” “legitimate not business” Tailoring A. Narrow scope Operations within the of the Order. If go regulation restricting speech Stevens told him he needed to two a neutral, protest. blocks south in order to public Instead forum is content our stan leaving, Sellman handed one his it determining dard for whether is narrow flyers delegate by. to a as he walked WTO ly tailored Perry is more relaxed. Edu placed Stevens then under Sellman arrest Perry cation Ass’n v. Local Educators’ disperse. for failure to Ass’n, 37, 45, 948, 460 103 74 U.S. S.Ct. (1983). policy adopted L.Ed.2d 794 Plaintiff Todd went to the Stedl zone not “need be the least restrictive or least Amendment; copies hand out of the First intrusive means” available to survive this if an stopped, “planned officer him he intermediate level of constitutional scrut saying protesting; ‘I’m not I’m educat- ” Racism, iny. Against v. Rock Ward 491 ing.’ deposition at Stedl testified his 781, 798, U.S. 109 105 L.Ed.2d S.Ct. the officer stopped who first him at Fourth (1989). government entity 661 But a is not by say- Avenue and Seneca Street reacted “ adopt any free to regulation that serves its not,’ ing, you’re ‘not with this and he effectively interests more than regula no grabbed I holding the fliers that was on to all; may tion at a restriction not burden proceeded and then into dig bag “substantially speech” than more neces where I had remaining fliers.... As sary government to further the interest at sack, said, he I ‘you reached into the cloth 2746; stake. Id. at see also .., need search warrant to take those.’ Ass’n, Kuba v. 1-A Agricultural said, He I something believe—he said ” (9th Cir.2004).- “A statute is nar of, ‘no, the effect I remaining His don’t.’ rowly targets tailored if it and eliminates fliers seized but Stedl was not arrest- than no more the exact source of the ‘evil’ ed. Stedl asked the officer for his When Schultz, number, remedy.” Frisby seeks badge “get going.” he was told to He then left and continued to S.Ct. protest (1988); Ward, outside of the “I L.Ed.2d 420 see also zone. Stedl testified that (“Government point was intimidated to that I felt that U.S. 109 S.Ct. 2746 if I may regulate expression had returned to no zone to such Amendment, hand out the portion First I manner that a substantial speech- does not serve to ad- inquiry burden Our into whether Order No. 3 goals.”). so if narrowly vance its This is. the was even tailored should begin by ana in completely eliminating rule is effective lyzing the government’s asserted interests 7, targeted the evil. Id. at 799 n. 109 S.Ct. in responding to the violence confronting 2746. Kuba, Seattle on November 30. See 387 doubt, F.3d at 858. Without a city has a square The 25 blocks of downtown Se significant in interest preserving safety the attle cordoned off No. 3 were visitors, of its residents and pre and in forum; indeed, a plainly public city streets venting violence and vandalism on city “quintessential public are “ forums” which See, streets.6 e.g., Perry Angeles Los v. immemorially ‘have been held in trust for (9th 1365, Police 121 Dep't, F.3d 1369 Cir. and, public, the use of the time out 1997) (“Government interests in promoting mind, have been used for purposes as public safety orderly and the movement of sembly, communicating thoughts between ” pedestrians, in and citizens, protecting the local discussing public questions.’ and substantial.”). merchant economy are ... Ass’n, 45, Perry Education 460 U.S. at cannot, city however, A CIO, coneededly- use a (quoting Hague 948 103 S.Ct. v. 307 U.S. 496, 515, legitimate interest in 954, “security” justify a 59 S.Ct. 83 L.Ed. 1423 rule drawn as (1939)); broadly as it see also Nevada v. wishes. See City ACLU of Bl(a)ck Boston, 1092, Soc’y Tea Vegas, City Las 378 (1st Cir.2003). Cir.2004) F.3d particularized inquiry (“Security “No into is anot the talisman that the precise specific government may nature of a street is invoke (no necessary; justify public any all are held in burden on speech streets matter the public properly oppressive).” trust and are consid how (emphasis original)). Here, ered public Frisby, traditional fora.” suggests, Klotz’s declaration “[t]he 481, 108 at City’s U.S. S.Ct. 2495. goal should have transport been to majority’s City’s sig- pleasantness 6. The assessment of the large or inconvenience aof dem- inconsistent, nificant interests confused and justified by onstration. The Order itself was a changes subtly depending upon argu- and the protect public peace, need “to safety, the and times, majority ment seeks to bolster. At preserve safety and to welfare” of "dele- majority pro- "the core citizens, cites interest” as gates, dignitaries, public safety em- tecting president foreign dignitaries. ployees protestors” alike. maj. op. See at 1134-35 n.41. But it also City argues, relying now on Hill v. City’s claims that the interest was in "main- Colorado, 120 S.Ct. order,” taining public "providing id. at (2000), signifi 147 L.Ed.2d 597 that it had a area,” security to the core downtown id. at protecting delegates' cant interest "seeing 1131 n. that the WTO dele- Hill, "right Supreme to be left alone.” In gates opportunity had the to conduct their upheld prohibited any Court a law that per business,” at id. knowingly approaching son from within 8 feet person protest, designat view, of another within my significant had a inter- ed areas near medical facilities. Id. But in protecting public safety. est That Kuba, 'protect we clarified that Hill "did not required City protect broad interest that the hearing particular potential a listener a from public (including President Clinton and message,' potential physi but 'from foreign dignitaries) both inside and outside Zone, cal and emotional harm suffered when an provide the No Protest safe trans- message by a port unwelcome individual delivers delegates and from the convention. interests, physically approaching helped an individual at close Order No. 3 serve those but " Hill, range.' (quoting sledge-hammer F.3d 861 n. 10 it was a solution 'where 2480). response preserved 530 U.S. at 718-19 n. As more tailored would have Kuba, Moreover, protections. "particu First Amendment the audience here was not vulnerable,” id., larly constitutionally significant did not did not have therefore sheltering delegates interest in from the un- need "to be left alone.” First, geographically conference, Order No. 3 was not neces- delegates particular method of sarily protect larger justified.9 than Protestors were (walking them to the conference getting 25-square-block from a area of banned individually, designated without purposely Seattle that encom- downtown route).” City’s interest in this Viewing the every hope could passed place context,7 it becomes clear broader delegates.10 Mayor communicate to Schell sweeping prohibition speech a on as such in deposition testified his he never justified.8 imposed Order No.- 3 was questioned why or the zone scrutinized handbilling, on hypothetical Like a ban large simply, to be that “the con- needed — 7, Ward, at 799 n. see delegate all of the cept was enclose 2746, protesting ban all within Seattle’s out, pointed hotels.” But as Klotz the size large might area of downtown Seattle a actually impeded No Protest Zone im- effectively quelled violence and have anywhere other than the law enforcement Nonetheless, it safety. because proved perimeter, takes more officers “[i]t since substantially speech more “burden[ed] larger space secure a than a smaller one.” necessary gov- than to further [was] majority The no in a court cites case which Kuba, interests[,]” legitimate ernment’s upheld similarly-large prohibition; has a 861, F.3d at Order No. 3 was not fact, we have struck down restricted zones narrowly City’s tailored. The solution was respects. a fit in several of much smaller scale.11 poor order,” majority my ly, extensively, assess- and more to restore 7. The mischaracterizes 1137, above, City's as one more nar- maj. op. ment of the interest at but as noted order Maj. required. op. at row than the situation already supra See at been restored. City's The 1131 n. 33. That is inaccurate. Mayor signed 1160-61 & n. 4. The Order No. safely transporting significant dele- interest in early morning 3 in the hours of December certainly gates to sites is the convention long protest activity after both violence and actually than the No. 3 broader interest Order maj. op. Again, had subsided. See at 1124. protect particular "to a method of served: Collins, at as stated in 110 F.3d "the getting [delegates] to the conference....” The occurrence limited violence and disorder only vast size of the zone was crucial to that day justification banning on one is not a maj. op. more narrow interest. at 1134. C.f. demonstrations, otherwise, peaceful and all majority recognizes that the had an (or immediately following day for an "ensuring delegates safe transit for interest thereafter).” period indefinite hotels," id., venues and but no between offers convincing rejecting plain- rationale for 10. The size of the No Protest Zone was re- tiffs’ less-restrictive alternatives. considerably duced on December 2. The new majority 8. The further maintains that “[t]he excluded the zone Westin Hotel after Presi- seeing City also had an interest in that the Maj. departed op. Bill Seattle. dent Clinton delegates opportunity WTO had the to con- Appendix see also B. duct their business at the chosen venue for conference; city that failed to achieve See, e.g., Bay Navy Area Peace v. United this interest would not soon have the chance States, (9th Cir.1990) 914 F.2d important to host another international meet- (holding 75-yard that a buffer zone surround- ing.” Maj. op. at 1131. I am not convinced ships city ing parade, naval which the city’s hosting that a interest in such an event safety claimed served its interest in and secu- "significant” purposes analysis. is of this rity, large 25-yard too and a zone would Because it is not asserted as an interest on just effectively); serve that interest United appeal, provide justifica- we should not this Baugh, States v. 187 F.3d City. tion for the Cir.1999) (holding 175-yard longer restriction on from the entrance of 9. Order No. 3 also lasted than neces- far); Kuba, right vigorous- sary. had the to "act a visitor center was too Second, protesting banned all and violent. 110 F.3d at 1367. Those regard to the it without likelihood demonstrations led to “a number of violent incidents,” would lead to violence or disorder. Not which caused property damage that, but individual intent on injuries. and minor In response, Id. then- causing easily harm could Mayor enter the zone Jordan declared a state of emer- simply asserting he or she fell gency order, and issued an approved by Operations within one of the Order’s ex Supervisors, the Board of authorizing the ceptions. peaceful Order No. 3 police banned to disperse any gatherings “any- expressive activity regard without where the City County of San Fran- City’s safety-related stated goals. The cisco whenever the peace officer on the majority concludes that would have been scene has reason to believe that gath- require too burdensome to ering to make endangers or likely to endanger case-by-case persons distinctions between “those property.” Id. The order was protestors with benign intentions and specifically targeted thus only to bar dem- those with violent Maj. op. intentions.” at likely onstrations that would lead to vio- Hill, 729, 120 (citing at U.S. S.Ct. lence. We nonetheless held that 2480). This case is significantly unconstitutional, different the order facially was but police from Hill: the a perime established that the clearly law was so established ter around the No Protest precisely Zone than no reasonable officer could believe they case-by-case so could make determi would be constitutional. Id. at 1374. nations as to who would be allowed the In making determination, that we noted majority restricted area. The would allow that proper response “the to potential and police people they to suspected search actual violence is for the government to handbills, carrying stickers and but con adequate ensure an police presence cludes that it “would not have been prac arrest those actually engage who in such tical” for to search for crowbars or conduct, rather than suppress legitimate spray paint. Id. at I 1135. see no basis First Amendment prophylac- conduct as a for that conclusion. tic measure.” Similarly, Id. at 1372. Collins, we evaluated a similar emer- Baugh, Service, we that “[t]he noted Park gency adopted order under analogous cir- in lieu of restraining expressive activi- ty cumstances.12 After the verdict was an- by refusing to permit, issue the should nounced in the Rodney King beating first permit have issued the for the lawful ex- trial, San pressive activity Francisco found itself amidst a and then arrested the number of peaceful demonstrations —both they demonstrators if and when tres- (holding policy relegates at emergency that a “significantly "which cisco’s order as small, broader," activity fairly communication dismissing to three id. at 1136 n. peripheral narrowly targeted areas" was too fact that the broad in relation to order was interest). apply only government's gatherings "likely endanger persons property.” or The circumstances in clearly analogous Seattle were to Collins and majority quick 12. The is too to dismiss and majority eager sidestep is far too bind- marginalize By asserting Collins. that the vio- ing circuit law. confronting lence Seattle was worse than the faced, majority violence San Moreover, Francisco the constitutional narrow tailor- simply that concludes Collins is "inapposite.” ing analysis part accounts for violence as op. Maj. majority’s analysis at 1136. But the City’s weighed against interest its tailored of Collins focuses on the factors it finds favor- response. adopt majority’s I decline to ignores important able and approach legal other distinctions that allows the framework to ought judgment. shaped to inform our For ex- and distorted its characteriza- ample, majority characterizes San Fran- tion of the level of violence. from its form of excluding plaintiffs at 1044. passed.” disre- “legitimate purposes” should have definition of argue “police here so core staffing on the street we afford such gards primacy more extensive to enter permit protestors could First Amend- speech under the political arrest and remove anywhere simply ment. Maj. op. at violated the law.” those who problem a similar We considered prece- clear Yet in the face of our 1135. Portland, where Grossman dent, majority should hesi- asserts “we forbidding organized a law invalidated requires law such say tate to that the public park in a without a demonstrations city confronts actual law- solution” where a 1200, 1203 Cir. permit.13 33 F.3d That hesitation breakers. Id. 1994). interpretation Like Or Seattle’s contrary to our circuit’s law. plainly 3, whether an individual was sub der No. un- Third, exempt were even those who ject depended under the statute to arrest plain der the terms of entirely individual was on whether any visible entry they displayed if denied message. displaying stickers, messages related to the signs, if and his plaintiff] [the Consider this: pro- clear: City’s policy

WTO. standing in companions had been “legitimate purpose” not a testing was meeting unex- group park after Protest Zone. This restric- entering the No discussing gar- pectedly, and had been scrutiny. constitutional tion cannot survive Trailblazers, Portland the dening, or the Hicks, housing the state Virginia would not have been arrested. [plaintiff] “any authority similarly attempted to ban T-shirts, signs the addition of While —or public from the streets of a low- person” or an “address” —would have occasioned housing development “when such income challenged ordi- application the of [the resident, or such employee, is not a person nance], absolutely the distinctions are legitimate person cannot demonstrate empty in terms of the ordinance’s stated being on the purpose business or social goals. 539 U.S. 123 S.Ct. premises.” in operated Id. at 1207. Order No. 3 (2003) 2191, (emphasis L.Ed.2d 156 148 way, should not exactly the same and we here, policy like the was original). Again First Amendment condone that affront to ramp- enacted “in an effort to combat the protections. the area. Id. ant crime” that had infected majority’s conclusion to the con- Supreme at 2191. The 123 S.Ct. trary wrong. Finding Grossman plainly the upheld policy the under First Court majority states Se- “inapposite,” only “legiti- after interpreting Amendment display- groups “distinction between attle’s expressive activ- mate business” to include 2191; ing messages groups displaying not ity. at 123 see also Id. S.Ct. Peterson, pro- messages” appropriate because F.3d 1059 Hodgkins v. (7th Cir.2004). emergency personnel, “not policy clear testors —and Seattle’s here, reasoning inap- by does render its Again, majority Grossman dismisses Indeed, facing distinguishing of violence plicable the level to this context. where by City. legal But the framework is not altered rely majority it useful to on cases involv- finds City's interest as more or an assessment of the violence, freely ing majority re- minimal City's important; inter- less the extent of See, maj. op. authority. e.g., at lies on such inherently est is accounted for within the nar- Hill, (discussing at tailoring inquiry. supra note 12. row See Bl(a)ck 2480); (citing at Tea S.Ct. id. 1138-39 clearly Although the facts in Grossman differ 14). Soc'y, 378 F.3d at respects facts at issue in certain from the employees, shoppers” pumps business the fuel at gas station and —caused Maj. op. the violence. at 1137 n. 46. The attempted to fill small gaso- bottles with however, majority, impor- overlooks two line. First, points:

tant a distinction between Maj. op. at 1126 n. 21. The majority non-protestors was not acknowledges that a police cap- Seattle heart Order No. 3. The Order report tain’s “noted that officers ‘heard preserve public safety instead aimed to and saw numerous incidents of property curfew, by implementing limited which destruction, burglary, looting; but we would alleviate the disorder chaos were unable to leave our lines to take the downtown area. See id. at 18-19 ” enforcement actions.’ Id. at 1124. The (quoting pmbl). Order No. 3 But ma- large perimeter by created Order No. 3 jority wrong is also as a factual matter. could by maintained a substantial People within the (including employ- zone police presence; its thereby size allowed shoppers) simply ees and who displayed the violence areas outside the No Pro- messages no likely more to cause test Zone to perimeter continue. The messages. violence than those without See fact served only goal the- of protecting id. at 15 (describing an incident where a delegates. WTO It therefore violated delegate, protestor, not a gun drew a requirement Ward’s tailoring “[t]he crowd). against the Whether or not an the restraint must of correspond course individual awore “No WTO” button should purposes it serves.” Id. at (citing bearing have had no on her treatment Ward, 2746). 491 U.S. at police. Finally, and fundamentally, Order No. 3 Fourth, the Order completely disregard- narrowly was not tailored to the City’s ed in maintaining interest peace and because, it, interests as Klotz put “it was security in areas outside the zone. While ” sought to pursue the wrong goal.... may-have served to protect del- is, That guaranteed the Order that WTO egates, protect it did not anyone outside delegates could safely walk from their ho “[Pjolice perimeter. the ... operations tels to the Convention city Center on side should convey perception of even-handed above,14 walks. But as noted City’s the commitment to protecting demonstrators significant narrow; interest was not so larger as well as the public[;]” City’s City had less-restrictive alternatives avail response to the demonstrations in Seattle able that would have served its in interest goal. did not serve that Report ARC at 4. safety and security equally well. We have majority recognizes the poor fit be- City stated that “while the need not em City’s tween the asserted interests and the ploy the least restrictive alternative in means it chose to respond to the violence: promoting public safety, its interest in ‘if zone, Even outside the restricted there there are numerous and obvious less-bur problems

were some of violence inciden- densome alternatives to the restriction on tal protest. protestors Some violent [protected] speech, certainly that is a rele property debris, caused damage, threw vant in determining consideration whether street, blocked the trapped people the “fit” between ends and means is rea in their cars. protestors jumped Some ” City sonable.’ Edwards v. Coeur d’Al onto an car patrol officer’s and shook it ene, Cir.2001) bar, 262 by F.3d light its while others in laid front prevented (quoting City of the car and Discovery the officer from Cincinnati v. Network, Inc., 507 escaping. protestors Some took U.S. n. over supra 14. See note 7. indirect, (1993)) (altera- This route is but trance. L.Ed.2d 99

S.Ct. Here, sug- protest points. all original). plaintiffs in avoids almost tion several. gested that I transportation option Another explored pedestrian not see is the did that because Se- majority concludes the Rainier ... not con- tunnel runs from “tunnels did pedestrian attle’s being only a building exiting the hotels and venues ... and Square nect all of plaintiffs’ delegates[,]” the yards protected used WTO from a well off- few Maj. op. suggestions not “feasible.” were to the Convention Cen- street entrance pedes- assuming n. Even at 1134 39. depo- Mayor Schell testified his ter. solution, inadequate an trian tunnels were without sition that he used this route suggested fact oth- plaintiffs various on the afternoon of November incident alternatives. First and er worthwhile foremost, developed City “the should have Further, “flying City could have used delegates get could to ensure that plan responsi- without squads,” or mobile teams Police the convention.” As Assistant lines, bility maintaining police for in his dec- explained Clark Kimerer Chief pursued and arrested vandals could have laration, “[a]n was aware protestors. Although the and violent goal and announced of some avowed pursuing this strate- originally planned was to shut down the WTO protestors arrived, day flying gy, “[w]hen convention, i.e., prevent delegates from join pulled duty off that squads therefore, venuesf;]” reaching trans- their result, the fixed lines. As a important have portation been an should could relatively small number of vandals City’s response.15 sug- Klotz part of arrest.” destroy property without threat of example, “planned for bus and van gested, Low, responsible who was Lieutenant Neil routes or controlled access routes” service in his deploying flying squads, stated instead, only trans- delegates; for the “the report Action internal WTO After to walk option delegates portation along with concept, we were to work “[i]n from various hotels to Conven- [the] their plain-clothes squad Lt. Joe Kessler’s through tion routes of their own Center locating arresting hardcore suggested Klotz several con- choosing.” actuality, committing criminal acts. crete alternatives: involved crowd control within became A dedicated drive called Convention street, continuing being hour of on the one Way runs underneath the Convention that for the remainder of the week.” with approximately from Ninth and Center First Amendment demands that “[T]he Pike to and Union. It is de- Seventh ‘tangible municipalities provide evidence’ signed to accommodate tour busses regulations are speech-restrictive that easily protected entrance has an indoor ‘necessary’ proffered to advance the inter- Thus, facility.... transporta- one Edwards, safety.” public est tion method that should have been ex- possibili- this list of alternative at 863. As ho- plored sending was buses from the written, demonstrates, 3,No. Interstate, ties Order out to the and into the tels interest, necessary not to advance that through this en- was Convention Center demonstrates, assertion, the measures em- Contrary majority's I do discussion to the "attempt City's ployed served a much narrower to reduce the interest to not narrowly Maj. not tailored. transporting delegates....” op. at 1131 interest and thus were simply City’s protect- list of alternative measures dem- interest extended to This n. 32. The broadly. ing public safety But as this onstrates that fact.

1173 City provide any tangible nor Bay did evi- In Area Peace Navy, we found that requirement. dence of such a a 75-yard security The Order zone “rendered the narrowly [plaintiffs’] majori- was not tailored and ... demonstration completely ty’s contrary conclusion ineffective and that disregards passing these out pamphlets on land or important demonstrating considerations. at the entrance pier are not viable alternatives be- visitors, cause the invited who are the Ample B. Alternatives [plaintiffs’] audience, intended are not ac- cessible positions.” from those Not No. F.2d at narrowly Order 3 not omitted). (quotation And in significant govern- tailored serve the marks Baugh, that forcing held demonstrators safety ment interest in security, it also to an yards area 150 to 175 away from failed to open ample leave alternative their audience provide intended not “[did] of communication. An methods entire me- a reasonable alternative means for commu- dium speech was foreclosed and the nication of plaintiffs’] [the views.” 187 WTO were protestors relegat- silenced and F.3d at 1044. Because the regulation at ed to the sidelines. “If an ordinance effec- in Baugh issue was not tailored “narrowly tively prevents speaker reaching from demonstrations,” allow for lawful it did audience, his intended it fails to open leave not ample leave open alternative means of ample alternative means of communica- Similarly, communication. Id. Order No. tion.” (citing Id. at 866 v. Int’l Heffron 3, which protestors forced to the sidelines Soc’y Consciousness, Inc., Krishna and back entrances to the WTO conference U.S. 69 L.Ed.2d venues, provide did not viable alternatives. (1981)); Bay see also Area Peace (“An Navy, 914 at F.2d alternative is officials all but conceded that the ample not if speaker permitted expression avenues of open left were insuf- ”). ficient reach the ‘intended to allow for meaningful audience.’ communica- No. 3 tion. protestors Before the prevented entering began, from conference Seattle police negotiated the 25-square organized block area with protest where WTO dele- gates groups to up could see and hear set “established them. It con- ar- testified, fined As all demonstrations to eas.” Assistant Chief Joiner outside areas message where the the protestors sought establishing those sites we tried convey may never have reached the to make that they sure were well located audience.16 intended or that met the needs of the protest majority points 16. The out directly record is municate their views outside most “void of evidence” that could not delegates staying.” the hotels where by delegates be seen or heard within the No Maj. op. at 1141 n.54. I at am a loss find Maj. op. Zone. Protest 1141 n. 54. But support in the record to evidence does the neither record reflect dele- statement; nothing the record or in could see and hear gates protestors, majority supports opinion the conclusion that the alternative means of communication protestors anything could "communicate” protestors available to the were sufficient. delegates within the No Protest Zone. The message Since it is unclear whether the could majority supports by its factual assertion form, any recognizable be in heard at a mini- drawing City. in favor of the inferences As plaintiffs genuine mum the have a established noted, previously improper this is at the sum- summary issue of material fact such that mary judgment stage. prepared I am not Balint, judgment inappropriate. is 180 F.3d this limited record to conclude as a matter majority The states that "the undis- ample puted law that No. 3 left per facts in the Order alternative record show that the protestors terms of Order No. 3 expression. could com- avenues' of foreclose reasonable visible, No. 3 did not they that they were that groups, expression. alternative avenues they event that were see whatever could words, and we should court was mistaken In would district other protesting. in an that media interest dispel any them. And so notion very close to be located everything we could a for constitution- to do event can be substitute we had tried on the avenues of com- peaceful protests ally-required alternative to accommodate Obviously that —those the Circuit stated front side. munication. As Seventh Tuesday connec- broke down “there is no internet agreements Hodgkins, in tion, call, morning. no television cover- telephone no attending politi- a compare that can age down and the agreements the broke After ” at 1063. in rally person.... cal No. Joiner ex- Mayor issued Order the at the heart of protests are Public out of people had to move that “we plained for incu- and are critical First Amendment words, carefully- the that area.” other encouraging bating engagement civic areas, which would have crafted spirited debate. delegates the to see protestors allowed them, In- by were eliminated. seen be Grossman, in evoked this concern We stead, to the relegated par- at 1205 n. F.3d reiterated no dele- inaccessible areas where WTO parks importance preserving ticular by presence. their gates be bothered would public precisely debate because forums majori- citing any authority, the Without ordinary lack reliable access people ample that alternatives ty concludes average protect media. The need to practical a applied “with test should be increasingly ability citizen’s to be heard “is confronting dire facts recognition of the now, extremely rich significant when the at 1140. Nowhere City....” Maj. op. variety privately- an enormous have however, law, have we even in our case through media which to reach owned this suggested that courts should balance present, At more democratic public.... city’s asserted need to against factor of communication—demonstrations means Rather, require speech. restrict stickers, bumper signs in parks, expression ample alternative avenues jealously pro- windows of homes—must be time, place, available order for place tected.” Id. The would First manner restriction to withstand mercy at the of the media demonstrators excep- There is no scrutiny. Amendment industry. way guarantee There is no exigency. tion for convey message protestors seek to any recognizable format. would be heard adopt us to the rule advo- asks city cannot allow a The First Amendment Bl(a)ck Tea cated the Second Circuit require subjugation. There, court noted that dem- Society. messages high-profile at “a

onstrators’ C. Discretion National 2004 Democratic event”—the time, place, and Even a content-neutral delegates if may reach even Convention— not survive First manner restriction will television, curtailed, ra- “through speech unduly scrutiny if it allows Amendment internet, dio, and other out- press, part on the of the official broad discretion major- Because the lets.” 378 F.3d at 14. enforcing regulation. charged with ample alternatives ity concludes Thus, speech regulation that restricts event, it does requirement met guide adequate “contain standards Maj. op. at must argument. not address this subject court, however, and render it official’s decision n. 49. The district 1139 judicial Thomas v. to effective review.” argument on this to conclude relied

1175 District, 316, 323, Chicago (quoting Park, Park 534 U.S. Foti v. Menlo 146 of (2002). (9th Cir.1998)). 122 S.Ct. 151 L.Ed.2d 783 F.3d 629 Order No. however, This even applies clearly rule outside the tradi- afforded officers op- licensing portunity abuse, tional context of schemes. For for and was therefore example, Airport in Board constitutionally Commission- infirm.17 According to Jesus, Supreme ers v. Mayor Jews Court deposition Schell’s testimony, for held a city unconstitutional ordinance that decision whether to peaceful, arrest lawful prohibited all “First Activi- protestors Amendment within the zone depend “would at Angeles ties” Los International Airport, on the judgment of the officers and people if even the law were charged read to apply the responsibility with of carrying expressive activity that was not “airport- out that order.” 569, 575, 576, related.” 482 U.S. Stamper Chief acknowledged that Order (1987). 2568, 96 500 L.Ed.2d The Court No. 3 and Operations interpret- to validate a that would refused law ing it “sufficiently were vague that it made give LAX officials power alone the to it difficult working from a cop’s point of decide the first instance whether a distinguish view to between who should given activity airport is a related. Such and who not should be left out.” Stamper law that confers on virtually a himself “honestly know the an- [didn’t] power charge unrestrained to arrest and swer” peaceful protest whether was a “rea- persons with a violation of the resolution purpose” sonable under the Order. And is unconstitutional opportu- because the Officer Smith testified at deposition his abuse, nity especially for a where statute that he and his fellow officers were never virtually has a open-ended received in- “a given laundry list of activities which terpretation, is self-evident. would legitimate.” be deemed to be In- omitted). (quotation Id. marks stead, he told simply apply “what The First Amendment even the reasonable would think person legitimate forbids abuse, sum, opportunity just policies plaintiffs business is.” pre- encourage preference favored sented that individuals with evidence disfa- view. See Lakewood v. Plain vored namely, anyone wearing a views— Co., Publ’g Dealer 108 “No sys- WTO” sticker or button —were (1988). zone, S.Ct. 100 L.Ed.2d 771 If that tematically excluded from the wheth- opportunity present, regulation is er or not the individual should have been “ unacceptable ‘creates an sup- entry risk allowed exception under an ” Kuba, pression of Furthermore, ideas.’ 387 F.3d at 856 Order.18 officers per- forum, Relying Griefen, public on United States v. attributes aof or even a limited (9th Cir.2000), majority F.3d forum, public people where are entitled to that, concludes because Order 3 was a No. rights speech.”). exercise their of free time, restriction, place, and lawful manner 25-block in Seattle off area cordoned Or- the discretion it afforded officers to allow or hand, der No. on the other affected deny entry into the zone "does not render public quintessentially forum-city streets and constitutionally Maj. Order No. 3 deficient.” subject therefore sidewalks—and the Order is op. Griefen, upheld at 1144. in which we higher degree scrutiny. supra to a See at of a construction site to but closure all essen- 1166-67; Collins, 1371; also 110 F.3d at see personnel, inapposite, tial is area into Nevada, ("The ACLU at plaintiffs sought entry which ability speech public ... to restrict forums temporarily public lost its status of forum ”). 'sharply circumscribed.' activity. as a result construction ("The F.3d immediate area of a con- supra zone is not an area struction that has the 18. See Part I.

1176 a the terms of has violated applicant to determine complete discretion mitted permit. and what was a “protestor” prior a who was and therefore who purpose,” “reasonable 324, light 775. In at S.Ct. majority’s conclu- excluded. The would be criteria, the Su- objective highly these on face danger no the that “there was sion disqualifying held that preme Court enforcing that officers No. 3 of Order “reasonably specific and ob- grounds indiscriminately with- zone could restricted dis- jective” to defeat a claim of unbridled at speak,” maj. op. permission hold The has never held cretion. Id. Court 1145, contrary to the evidence. flatly is allowing officers to determine regulation that under Chi- majority concludes a “reasonable unilaterally what constitutes District, con- guidelines cago Park further elaboration on with no purpose,” were suffi- Operations tained type like considered “other might what objective, and [did] ciently “specific sufficient activity,” provides reasonable to the whim of the not leave the decision if No. Even Order 3 were guidance.19 (quoting Id. at 1146 administrator.” time, and manner place, fact a reasonable 775). 324, But the dis- 122 S.Ct. U.S. restriction, it nonetheless fail to sat- would quite is different— provided cretion here isfy requirements the First Amendment’s clearly the ordinance broader —than foreclosing unbridled discretion enforce- That Chicago Park District. upheld ment.20 licensing scheme that al- case involved a deny permit district to lowed the III. incomplete or application when the Menotti, Stedl, and As for Skove’s misrep- contains a material falsehood claims, I re- Fourth Amendment would resentation; applicant when the has summary grant the district court’s verse property pri- Park District damaged pre- has judgment. agree I that Menotti paid has not for the or occasions and a ma- sufficient evidence to create sented permit grant- has been damage; when dispute impeded factual whether he terial for the applicant ed to an earlier same and whether he obstructed an pedestrians place; when the intended use time of his duties. performance officer in the danger an unreasonable present would probable officers had or Whether safety park the health or users reso- to arrest Menotti turns employees; Park District or when cause 3, however, Oregon conferred Order No. Relying Barter Fair v. Jackson discretion on S. 1128, unconstitutional, County, facially Chicago F.3d 1139-41 Cir. rendered it 2004), suggests majority District, 775, that we have in U.S. at 122 S.Ct. Park guidance similarly- Kuba, fact found sufficient application. incapable of valid Maj. op. at But statutes. 1144-45. drafted District, Chicago F.3d at 856. In Park reasonably clearly "a fee the determination of plaintiffs as-applied chal- Court limited to an county for its calculated to reimburse lenge only determining that the chal- after costs,” necessary Oregon S. reasonable and lenged permitting contained "ade- scheme Fair, 372 F.3d at vests far less Barter guide decision quate standards to the official's de discretion in the enforcement officer than subject judicial re- and render it to effective type termining constitutes "other like what 534 U.S. at 122 S.Ct. 775. Be- view.” activity.” majority's attempt reasonable provided police officers cause the standards equate persuasive. the two is not guide of Order No. 3 were not enforcement objective,” "reasonably specific id. at facts, noting majori- 20. While the relevant majority incorrectly they give ty rise to a concludes that plaintiffs as-applied to an chal- partic- confines challenge applied 3 as to Order No. Maj. op. maj. op. lenge at 1148-49. plaintiffs. at 1144-46. The here. ular See See, lution of these factual issues. e.g., Valencia, THOMAS; Michelle 1106, George States v. F.3d David

United Cir.1994). Thomas; Tyneal Thomas; I would Michelle also reverse Thomas, summary judgment Petitioners, court’s rul- Shaldon Waide district Stedl, ing because against there is suffi- v. cient evidence the record to create a GONZALES,* Attorney Alberto R. genuine dispute factual whether General, Respondent. policy of authorizing unlawful No. 02-71656. sought searches and seizures of those who to express any opposition to the WTO. See United States Court of Appeals, Tuttle, 808, Oklahoma 471 U.S. Ninth Circuit. (1985). 85 L.Ed.2d 791 Argued and En Submitted agree I Finally, majority with the Banc Dec. 2004. alleged Skove has a violation of Fourth his rights Amendment and defendant Smith is Filed June qualified not entitled to immunity.

& Hí & & Because narrowly Order No. 3 was not tailored, open did not leave ample alterna- communication,

tive means of and afforded officers unbridled individual discretion in enforcement, facially its it is unconstitu- tional. I would therefore reverse the dis- grant trict judgment court’s of summary against plaintiffs, all Rankin maj. o-p.at cf. Menotti, against 1149 n. Sellman Skove their First Amendment I

claims. would also reverse the district summary judgment against court’s Menot- ti, Stedl, and Skove as to their Fourth Amendment claims.

* States, pre- pursuant Alberto R. Gonzales is substituted R.App. for his Fed. United decessor, Ashcroft, 43(c)(2). Attorney John General P.

Case Details

Case Name: Menotti v. City of Seattle

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 1, 2005

Citation: 409 F.3d 1113

Docket Number: 02-35971, 02-36027

Court Abbreviation: 9th Cir.