Lawrence ROSENBAUM; Eric Livingston, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO; Fred Lau, in his official capacity as Chief of the San Francisco Police Dept.; Joel Robinson, in his official capacity as Superintendent of the Recreation and Parks Dept., City and County of San Francisco; Anthony Delucchi, in his official capacity as Director of Property, Real Estate Dept., City and County of San Francisco, Defendants-Appellees.
No. 05-15266
United States Court of Appeals, Ninth Circuit
Argued and Submitted Dec. 7, 2006. Filed April 30, 2007.
484 F.3d 1142
Before T.G. NELSON, RONALD M. GOULD, and CONSUELO M. CALLAHAN, Circuit Judges.
In IDK, Inc. v. Clark County, 836 F.2d 1185 (9th Cir. 1988), this court recognized that “[t]he First Amendment‘s freedom of association protects groups whose activities are explicitly stated in the amendment: speaking, worshiping, and petitioning the government.” Id. at 1192 (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 622-23, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). We do not have such activity in this case.
The plaintiffs were members of a motorcycle club whose stated purpose was to ride motorcycles, promote good will among disparate community groups and raise money for charities. When asked, during his deposition, whether the plaintiffs advocated any political, religious, or other viewpoints, appellant Villegas answered “no.”
There is no evidence that the plaintiffs’ club engaged in the type of expression that the First Amendment was designed to protect. As the Supreme Court stated, an organization must “engage in expressive activity that could be impaired in order to be entitled to protection.” Id. at 655, 104 S.Ct. 3244. Here, the plaintiffs were not engaged in any sort of “expressive activity that could be impaired.” Id. Further, even if this court were to conclude that the plaintiffs’ charity work and their promotion of goodwill among disparate community groups amounts to sufficient expressive activity,11 there is no evidence that at the time they entered the festival, the plaintiffs were engaged in such activities. In addition, there is no evidence in this case that the defendants’ actions in any way violated the plaintiffs’ right to associate with one another or to pursue their stated purposes of riding motorcycles, giving to charity and promoting good will.12 The defendants’ refusal to permit the plaintiffs access to the festival only limited the plaintiffs’ access to a particular location; a location that had no relation to the purposes underlying their association with one another.
The court concludes that the plaintiffs did not engage in the kind of expressive conduct that would support a violation of the First Amendment‘s right to freedom of association.
AFFIRMED.
Lawrence ROSENBAUM; Eric Livingston, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO; Fred Lau, in his official capacity as Chief of the San Francisco Police Dept.; Joel Robinson, in his
No. 05-15266.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 7, 2006.
Filed April 30, 2007.
Russell Davis, San Francisco, CA; and Frederick H. Nelson, American Liberties Institute, Orlando, FL, for the plaintiffs-appellants.
Dennis J. Herrera, City Attorney; Molly Stump, Chief Attorney, Public Protection Unit; and Margaret W. Baumgartner, Deputy City Attorney, for defendant-appellee City of San Francisco.
GOULD, Circuit Judge.
We here consider the free speech rights of Christian evangelists who operate religious outreach with the use of amplified sound in the streets of San Francisco, and whose efforts have collided with the City of San Francisco‘s prerogative under its noise ordinance and permitting scheme to ensure that its citizens are not subject to unreasonably loud speech and music. Plaintiffs-Appellants Lawrence Rosenbaum and Eric Livingston filed suit in the Northern District of California alleging constitutional claims under the First and Fourteenth Amendments that arose out of appellee City of San Francisco‘s permitting process and noise ordinance enforcement, which the district court denied after a bench trial. We have jurisdiction under
On appeal, appellants claim that San Francisco police officers unevenly enforced the municipal noise ordinance, in violation of equal protection, by frequently stopping or conditioning appellants’ use of amplified sound while leaving other groups’ and individuals’ loudspeaker use unmolested. Appellants also contend that city officials engaged in viewpoint discrimination. In particular, appellants claim that city officials implemented a “heckler‘s veto” by responding to complaints by citizens who were hostile to appellants’ Christian message. Appellants lodge a second viewpoint discrimination claim that issuance of permits and enforcement were marred by unbridled discretion, and that city police stopped giving permits to appellants for amplified sound activities relying on noise abatement as a pretext to mask viewpoint discrimination. As a third viewpoint discrimination claim, appellants assert that city police cited appellants for disturbing the peace without probable cause because of disagreement with the subject-matter of appellants’ speech. Appellants also claim that city officials improperly denied sound permits due to prior restraint where applications were rejected based on appellants’ past non-compliance with permit conditions and past violations of the noise ordinance. Finally, appellants argue that the district court erred in not granting relief under the California Constitution‘s broader protections of free speech. We affirm the district court.
I
Appellants are Christian evangelists who are staff members of American Christian Enterprises, a non-profit charity organization. Appellant Rosenbaum operates a ministry affiliated with the “SOS Ministries” in San Francisco, which conducts religious outreach. Since 1978, appellants have preached a Christian evangelical message in the streets and parks of San Francisco with amplified sound.
Appellee City of San Francisco (“the City“) has adopted under section 47.2 of the San Francisco Police Code (“Police Code“) a time, place, and manner restriction that provides, inter alia, that “[a]mplified speech and music shall not be unreasonably loud, raucous, jarring or disturbing to persons of normal sensitiveness.” See
For almost three decades, Rosenbaum and Livingston have requested and from time to time received numerous permits from the City for sound amplification to conduct their outreach. Beginning in late 1995, however, many of appellants’ permit applications were denied or issued with significant restrictions for specific events. In addition, appellants began to encounter increasing attention from the San Francisco police who, in response to citizen complaints on specified occasions, admonished, cited or arrested appellants, or threatened such sanctions, for not having a necessary permit for their amplified sound, for not complying with the limitations on their permit, or for using excessively loud amplification.
On September 19, 1996, appellants filed suit in the United States District Court for the Northern District of California against the City and County of San Francisco and three city officials in their official capacity (collectively “the City“), seeking injunctive and declaratory relief. Appellants asserted eight claims based on events alleged to have occurred between May 28, 1990 and August 9, 1996: (1) “Enjoinment of San Francisco Police Code § 47.2 on grounds of vagueness and overbreadth“; (2) “Enjoinment of Police Code § 47.2 and Penal Code § 415 and unlawful permitting procedures on equal protection grounds“; (3) “Enjoinment of enforcement of the ‘heckler‘s veto’ against plaintiffs“; (4) “Enjoinment of the denial of government permits because said denial is a prior restraint on the free speech rights of the plaintiffs“; (5) “For violation of Title 42 U.S.C. Section 1983“; (6) “For civil conspiracy and for conspiracy to interfere with civil rights in violation of 42 U.S.C. section 1985“; (7) “Violation of the Religious Freedom Restoration Act“; and (8) “Pendent State Claim for violation of California Constitution Article I, sections 1, 2 and 4.” Thereafter, appellants moved for a preliminary injunction to prohibit the City from enforcing
On November 6, 2001, appellants moved to amend their complaint to substitute defendants and to assert a claim for damages by Livingston involving similar circumstances. Aside from granting the substitution of defendants, the district court denied the motion to amend because an additional damages claim under new factual allegations was unduly delayed and would have prejudiced the City.
At a bench trial in December of 2002, based on the parties’ stipulation the district court determined at the outset that the following claims remained: (1) an equal protection claim based on the manner in which the City issued permits and enforced permit requirements for amplified sound; (2) a First Amendment claim based on viewpoint discrimination (or “heckler‘s veto“) in the City‘s issuance of permits and enforcement of permit requirements; (3) a First Amendment claim of prior restraint in the alleged denial of permits based on appellants’ past non-compliance with loudspeaker permit restrictions; (4) a First Amendment claim based on the City‘s application of
Before the district court issued its disposition, appellants moved on April 27, 2004 under
The district court issued a Memorandum of Decision on January 12, 2005. As a threshold issue, the district court considered the issue raised in appellants’ Rule 15 motion whether numerous incidents alleged to have occurred between appellants and the San Francisco police after the August 9, 1996 filing of the complaint could be included within the scope of actionable conduct. In particular, appellants had
The district court first narrowed the scope of actionable conduct under the statute of limitations. The district court determined that the appropriate statute of limitations period for claims under
As for post-complaint events, the district court first observed that in appellants’ November 2001 motion to amend the complaint, appellants made no effort to supplement the complaint for the purpose of alleging expanded claims based on incidents alleged to have occurred after the filing of the complaint, and that they waited to move expressly to add factual allegations to encompass post-complaint events until April 27, 2004. The district court held that under Rule 15 the City had neither expressly, nor impliedly, consented to such an expansion of claims based on post-complaint factual allegations. In light of our decision in Rosenbaum II, however, where we held genuine issues of material fact existed as to appellants’ constitutional claims in part in reliance on facts alleged after the complaint was filed, the district court declined to speculate whether we had decided which events fit within the scope of conduct under the complaint. Leaving the question unanswered, the district court addressed appellants’ claims first based solely on alleged conduct between September 19, 1995 and August 9, 1996, and in the alternative, based on alleged post-complaint conduct included in appellants’ opposition to the City‘s motion for summary judgment that we considered in Rosenbaum II. In any event, the district court considered evidence of all incidents, irrespective of date of occurrence, to the extent it bore on any alleged pattern or policy of police misconduct.
Under both the narrow and the expand-ed scope of conduct as described above, the district court rejected all appellants’ claims. This timely appeal followed.
II
We first address what conduct may be considered actionable under the complaint. The City seeks to limit the scope of actionable conduct to events that transpired between September 1995 and September 1996 based on the district court‘s rulings on the statute of limitations and the denial of appellants’ motion on April 27, 2004 under
We review the district court‘s order denying a
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
See
In Patelco Credit Union v. Sahni, we rejected the argument that certain evidence adduced at trial without objection effectively amended the defendant‘s answer to include a statute of limitations defense. 262 F.3d 897, 907 (9th Cir.2001). “While it is true that a party‘s failure to object to evidence regarding an unpleaded issue may be evidence of implied consent to a trial of the issue, it must appear that the party understood the evidence was introduced to prove the unpleaded issue.” Id. (internal quotation marks omitted); see also Consol. Data Terminals v. Applied Digital Data Sys., Inc., 708 F.2d 385, 396 (9th Cir.1983) (“An adverse party cannot be expected to object to the introduction of evidence that is only tangentially related to the issues actually pleaded prior to trial unless the party has notice that the evidence is being introduced as proof on some other unpleaded issue.“).
Here, the district court did not abuse its discretion in concluding that the City had not impliedly consented to try appellants’ claims based on post-complaint conduct simply because the City referred to events in 1997 and 1998 in responding to appellants’ opposition to summary judgment. As the district court correctly found, the thrust of the City‘s motion for summary judgment pertained to its argument that Livingston and Rosenbaum lacked standing to assert claims for injunctive relief because they could not demonstrate a threat of future harm where “over a three year period, plaintiffs obtained loudspeaker permits for at least seventy-eight events; during 1998 alone, plaintiff received permits for twenty-five events.” See Def. Mot. for Summ. J., Nov. 16, 1998, at 11. To the extent appellants referenced post-complaint events in their opposition to summary judgment, the district court concluded that such additional factual allegations “reasonably would have been understood ... to be in response to the City‘s argument.” Also, the City objected at trial to any evidence referring to post-com-
Because appellants do not explicitly contest the district court‘s proper statute of limitations ruling, the scope of actionable conduct begins with events that occurred as of September 1995. Because the district court did not abuse its discretion in narrowing the scope of actionable conduct to events alleged in the complaint, we do not consider events after September 19, 1996, except as relevant to any alleged policy or pattern of police misconduct that would warrant injunctive relief.
III
We review constitutional issues de novo. See Buono v. Norton, 371 F.3d 543, 548 (9th Cir.2004). A district court‘s determinations on mixed questions of law and fact that implicate constitutional issues are similarly reviewed de novo. Cogswell v. City of Seattle, 347 F.3d 809, 813 (9th Cir.2003). Where, however, the application of the law to the facts requires an inquiry that is “essentially factual,” we review for clear error, see Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002), with exception of issues arising under the First Amendment, where we conduct an independent review of the facts. See Tucker v. California Dep‘t of Educ., 97 F.3d 1204, 1209 n. 2 (9th Cir.1996).
IV
In their equal protection challenge under the Fourteenth Amendment, Rosenbaum and Livingston assert: (1) that they were denied permits where similarly situated applicants received permits; (2) that, irrespective of whether they received a permit for sound amplification, the City police “shut down” their amplified speech whereas other similarly situated groups (mainly street musicians), permitted or not, were left unmolested to engage in sound amplification.
A government entity has discretion in prosecuting its criminal laws, but enforcement is subject to constitutional constraints. See Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).5 To prevail on its claim under the equal protection clause of the Fourteenth Amendment, a plaintiff must demonstrate that enforcement had a discriminatory effect and the police were motivated by a discriminatory purpose.
In addition to the showing of discriminatory purpose and effect, plaintiffs seeking to enjoin alleged selective enforcement must demonstrate the police misconduct is part of a “policy, plan, or a pervasive pattern.” See Thomas v. County of Los Angeles, 978 F.2d 504, 509 (9th Cir.1993); see also id. at 508 (“A state law enforcement agency may be enjoined from committing constitutional violations where there is proof that officers within the agency have engaged in a persistent pattern of misconduct.“); Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1500 (9th Cir.1996) (requiring plaintiffs to establish more than repeated incidents of misconduct). Notwithstanding the availability of injunctive relief, declaratory relief may be appropriate where a plaintiff making a facial or as-applied constitutional attack “demonstrates a genuine threat of enforcement of a disputed state criminal statute.” Steffel v. Thompson, 415 U.S. 452, 475, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
A
As for appellants’ argument urging that there was selective issuance of permits, appellants alleged in their complaint the following instances within the statute of limitations period where they were either denied a permit or issued a permit with restrictions: (1) In February 1996, the City granted two permits for the intersection of Fifth and Market Streets, with the restriction that the speaker be turned away from Market Street; and in March 1996, the City denied Livingston four permit applications for the same intersection. (2) On April 26, 1996, appellants were denied three permits requested for May 4, 11 and 25, 1996 at the corner of Fifth and Market Streets and a resubmitted request for 989 Market Street. (3) On July 1, 1996, appellants received permits for July 20 and August 17, 1996 at 835 Market Street, with the limitation that appellants could not use more than two loudspeakers of no more than 50-watt capacity each.
“The first step in equal protection analysis is to identify the [city‘s] classification of groups.... Once the plaintiff establishes governmental classification, it is necessary to identify a ‘similarly situated’ class against which the plaintiff‘s class can be compared.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir.1995) (internal quotation marks omitted). Appellants argue that the district court erroneously rejected appellants’ alleged control group—any group or individual, permitted or non-permitted, that appellants observed using amplified sound.
Appellants’ control group theory is unconvincing. In their focus on selective enforcement, appellants appear not to recognize the district court‘s distinction between its analysis of alleged equal protection violations based respectively on permit issuance and permit enforcement. Appellants in their complaint refer only to large permitted events that apparently were allowed to continue despite excessive volume and some noise complaints by appellants—the Cinco de Mayo Celebration on May 5, 1996; the “KFOG Sky Concert” on May 11, 1996; the “Making Waves” musical heritage festival on June 21, 1996; and the
B
As for appellants’ argument that they were shut down while others were unmolested in selective enforcement of
Appellants argue that the district court erred in adjudicating their equal protection claims by not acknowledging similarly situated groups—“small un-permitted groups ... allowed to engage in amplified speech activities“—and by requiring that appellants prove that the City had a discriminatory intent. Both theories are unavailing.
Appellants’ first argument is not supported by the district court‘s actual finding. The district court stated that “various street musicians and other entertainers whom plaintiffs observed using amplified sound ... without police interference ... [were] comparable for purposes of equal protection analysis.” (emphasis added). In regard to identifying the control group for purposes of selective enforcement, the district court did not err. Appellants’ claim that the district court erred in applying the wrong legal standard, namely that the City was motivated by a “discriminatory intent,” is similarly belied by the district court‘s emphasis on the discriminatory effect and purpose test in Wayte, 470 U.S. 598, and its conclusion that appellants did not establish that the City engaged in “purposeful discrimination based on the content of plaintiffs’ message.” The district court correctly identified the proper control group and applied the correct legal standard for selective enforcement analysis.
To the extent appellants claim an equal protection violation because large, permitted events were allowed to continue despite noise complaints, whereas appellants’ activities were restricted or terminated in some manner in response to com-
An examination of the events alleged to have occurred post-complaint also does not reveal any pattern of discriminatory noise ordinance enforcement aimed at appellants. To conclude that such a pattern existed, appellants would have to present evidence of a pervasive policy of selective enforcement with respect to the control group of individuals or small groups engaged in unpermitted sound amplification.
In addition to showing that officers within the agency have engaged in a persistent pattern of misconduct, see Hannigan, 92 F.3d at 1500, “[l]iability may attach to a municipality only where the municipality itself causes the constitutional violation through ‘execution of a government‘s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.‘” Ulrich v. City and County of San Francisco, 308 F.3d 968, 984 (9th Cir.2002) (quoting Monell v. Dep‘t of Soc. Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). In a Monell claim, there are three ways to show a policy or custom of a municipality: (1) by showing “a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local government entity“; (2) “by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision“; or (3) “by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.” Ulrich, 308 F.3d at 984-85 (internal quotation marks and citations omitted).
The district court found that there was no discriminatory effect on the following evidence: (1) Appellants’ “maxi-mouse” loudspeaker required a permit, which the police only irregularly enforced against the appellants and similarly situated musicians and performers. (2) Under the expanded chronology of reviewable events, the district court addressed a variety of musical groups who were, with one exception,6
In regard to discriminatory effect, it must be first recognized as a general matter that during the approximate seven-year period covered under the complaint and afterward, appellants were often unmolested in using sound equipment to preach the Christian gospel, whether their activities were permitted or not.8 According to Livingston‘s own testimony, appellants were able to perform on many occasions from 1995 to 1997 in well-populated San Francisco neighborhoods using a 9-watt “maxi-mouse” amplifier without police interference. This admission suggests that appellants were regularly allowed to preach using non-permitted sound amplification.
Evidence relied on by appellants also supports this conclusion. For instance, appellants point to incidents on June 1 and November 6, 1999, at Powell and Market Streets, where appellants complained about a small protest group using a 10-watt loudspeaker without a permit, but the police allowed the protest to continue. Appellants contend that this type of post-complaint police inaction showed the City‘s pattern of selective enforcement; however, when viewed in light of appellants’ own admission that they also were regularly allowed to continue unpermitted activity, their claim of selective enforcement is undercut. Second, in the vast majority of instances, appellants made no showing that they were using amplified sound at the same time and/or location as comparable performers.9
As for discriminatory purpose, the City produced evidence that police were responding to citizen complaints or were alerted to appellants’ illegal activities (whether permitted or not) because of the excessive noise. Evidence at trial revealed only a few occasions where appellants were using amplified sound and complained about other small groups also engaged in sound amplification in the same vicinity. For example, appellants claim that on August 6, 1996 the police failed to cite Reckless Records, a record store that purportedly played loud music to disturb plaintiffs. While it is true that police is-
Appellants’ claimed acts of selective enforcement did not have a discriminatory effect. There was likewise no evidence to suggest that any action or non-action by the police was taken “because of ... its adverse effects upon [the] identifiable group.”11 Wayte, 470 U.S. at 610, 105 S.Ct. 1524. Even if we were to credit the few instances of arguable non-enforcement against similarly situated groups, a pattern or policy of discrimination is not established by these few instances over the entire period where appellants frequently conducted outreach with both permitted and unpermitted amplified sound, and police have discretion to determine the appropriate level of enforcement. See Hannigan, 92 F.3d at 1500 (requiring plaintiffs to establish more the repeated incidents of misconduct sufficient for injunctive relief). Appellants’ claim for injunctive relief is also flawed because of a lack of evidence that the City had a standard operating procedure or policy directed by an official with final policy-making authority. See Ulrich, 308 F.3d at 984-85. We affirm the district court in denying appellants’ equal protection claims.
V
Appellants advance three main theories in claiming that the City engaged in viewpoint discrimination in violation of the First Amendment. First, appellants argue that the City gave effect to an improper “heckler‘s veto” when officers responded to noise complaints initiated by citizens who disagreed with the content of appellants’ Christian message. Appellants contend that the district court erred in examining the enforcing officer‘s state of mind to reject discriminatory intent. Second, appellants contend that the district court erred in rejecting viewpoint discrimination because the City exercised unbridled discretion in issuing permits and because the City used the grounds of excessive volume as a pretext for denying loudspeaker per-
“Discrimination against speech because of its message is presumed to be unconstitutional.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995).
A
Appellants argue that the City applied an improper “heckler‘s veto” when, in regulating amplified speech under
A “heckler‘s veto” is an impermissible content-based speech restriction where the speaker is silenced due to an anticipated disorderly or violent reaction of the audience. See Brown v. Louisiana, 383 U.S. 131, 133 n. 1, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 137, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (invalidating ordinance that allowed county administrator to adjust parade permit fees based on anticipated cost of security). In Forsyth County, Chief Justice Rehnquist pointed to the risk of a “heckler‘s veto” where a permittee might be subject to higher fees because of higher security costs associated with a hostile crowd. Id. at 142, 112 S.Ct. 2395 (Rehnquist, J., dissenting).
Here, the district court‘s findings after bench trial rejected such a nexus. The district court found the testimony of the responding officers to be credible that they were responding only to noise complaints. The district court correctly concluded that there was no “heckler‘s veto” because appellants did not demonstrate with any evidence that the San Francisco police officers who responded to these specific incidents, or any incidents more generally, knew about, agreed with or adopted any views of the complainants. To the contrary, the record is clear that officers responding to these two incidents instructed appellants to lower the volume, which would have allowed appellants to express their Christian views; when they refused, however, the officers were again dispatched to control the unreasonably loud speech in response to citizen complaints. The district court also credited police officer testimony that when appellants were told to stop the non-permitted amplified speech that was excessively loud, investigating officers regularly informed appellants that they could continue to preach, albeit without amplification. This reinforces the conclusion that the City was concerned about unacceptable noise levels and not with the content of appellants’ Christian message.
B
Appellants claim that the district court erred in not addressing their claim of unbridled discretion, which appellants contend allowed the City to engage in viewpoint discrimination. Appellants also contend that because no volume specification was called for on permit applications, evidence that police officers were responding to excessive noise is pretextual and betrays viewpoint discrimination.
“The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward, 491 U.S. at 791, 109 S.Ct. 2746. An ordinance that affords city officials unbridled discretion to determine whether or not to enforce limitations on First Amendment activity may support the inference of viewpoint discrimination. See City of Lakewood v. Plain Dealer Publ‘g Co., 486 U.S. 750, 757, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). As noted above, however, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791, 109 S.Ct. 2746.
In pressing their theory that the City fell prey to viewpoint discrimination due to its alleged exercise of unbridled discretion, appellants rely on our decision in American Jewish Cong. v. City of Beverly Hills, 90 F.3d 379 (9th Cir.1996). In that case, we considered a claim under the Establishment Clause of the First Amendment where defendant city generally proscribed erection of unattended displays on public property, with a single exception that permitted the presence of a 27-foot menorah during the Chanukah season. Id. at 380-81. When the city denied permits to two applicants, who were respectively seeking to create a “winter solstice” scene and plant a Latin cross on public property, we concluded that the unique exception to allow the menorah violated the Establishment Clause because it demonstrated a preference for the Jewish religion, see id. at 383, and because the ordinance vested city officials with unbridled discretion. Id. at 384 (“The City may not have a general policy banning unattended private displays, but, on an ad hoc basis with no standards to guide it, choose one religious group and permit it to erect a display while denying all other groups permission to erect displays.“). In American Jewish Congress, we held that the “ad hoc and structureless nature of the City‘s permitting process leaves open the possibility of improper discrimination by the City.” Id. at 385.
Contrary to appellants’ contentions, under
In denying appellants permits, the City based its decision on the fact that the proposed use of amplified sound was unsuitable for the area covered by the requested permit under several statutory criteria. For instance, in the Notice of Decision on May 23, 1996 denying appellants’ permit application, the hearing officer noted citizens’ complaints that they were being subjected to excessive volumes that disrupted businesses during the day and disturbed residents with children in the evening because of the unreasonably loud volume. The hearing officer also cited repeated direct requests by citizens to Livingston and Rosenbaum to reduce their sound levels. Moreover, the hearing officer credited police statements that appellants routinely could be heard at a distance of more than 250 feet from the sound source. Finally, the hearing officer found that appellants were often unwilling to reach an accommodation with these area
Appellants also assert a claim of pretext that the police routinely requested or forced appellants to cease their permitted amplified speech based on excessive noise, although, according to appellants, the City had no grounds to do so because appellants never requested a particular volume level when applying for a permit. As an initial matter, this factual claim is inaccurate because permits issued under
Because
C
Appellants’ third theory of viewpoint discrimination is that the City made no legitimate showing of probable cause when citing Livingston and Rosenbaum under
In Knox v. Southwest Airlines, we recognized the constitutional principle that “[t]he First Amendment does not prevent enforcement of disorderly conduct statutes so long as they are not vague or applied to curb protected speech.” 124 F.3d 1103, 1109 (9th Cir.1997) (alteration in original) (holding officer‘s motive for the arrest could not be resolved on summary judgment) (internal quotation marks omitted).
Here, appellants alleged in their complaint two separate incidents where they contend that they were cited under
At the time of the citation [on August 2, 1996], plaintiff Rosenbaum was using amplified sound in a mixed residential/commercial neighborhood after 9:00 p.m. He did not have a permit to use amplified sound. Officer Mark Landon, a police officer on vehicle patrol, heard the sound from a block away with his windows closed, responded and asked Rosenbaum to turn the sound down. Approximately fifteen minutes later, Officer Landon was dispatched on a noise complaint, at which time the complainant, Joe Narvik, signed a citizen‘s arrest card. Narvik reported that Rosenbaum was keeping his children awake and had refused to turn the sound down when Narvik requested that he do so.
At approximately 9:30 p.m. [on August 9, 1996], at Broadway and Columbus Avenue, Livingston was preaching using amplification and had no permit for such amplification. Officer Milan Kangrga, on patrol in the North Beach area, responded to a noise complaint and requested that Livingston turn down his sound, which he did. Officer Kangrga returned, again in response to a noise complaint, at which time the volume was loud, and the complainant, Harry Wamack, who, by his address as indicated in the police report, resides near that intersection, signed a citizen‘s arrest card. There is no indication of any encounter between the complainant and Livingston in this instance, however, or of the particular manner in which the complainant‘s peace was disturbed. Nevertheless, given Livingston‘s lack of permit, his knowledge of a complaint, and his increasing the volume of his amplifier to a high level once the police had left the scene, it cannot be said that Officer Kangrga had no reasonable cause to believe Livingston did so not to communicate but rather to annoy the individual who had seen fit to report him.
“The test for probable cause is whether facts and circumstances within the officers’ knowledge are sufficient to warrant a prudent person, or one of reasonable caution, to believe, in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense.” Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir.2005) (internal quotation marks omitted). Although it is not dispositive, the City introduced testimony that under an informal policy, its police officers have probable cause to believe a speaker “maliciously and willfully” caused a “loud and unreasonable” noise for purposes of
As for the August 2, 1996 citation, the district court reasonably inferred that Rosenbaum had not adequately lowered the volume of his loudspeakers despite Officer Landon‘s admonishment, because the volume remained sufficiently loud to rouse a neighborhood resident to complain and sign a citizen arrest form. Testimony to bolster appellants’ contention here that Rosenbaum turned off one of his loudspeakers, and turned down the second loudspeaker, was not so credible as to overcome the inference that his purpose was to annoy Narvik, who, according to the investigating officer, had also requested that Rosenbaum reduce the volume. See Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (recognizing that trial court‘s credibility findings are subject to clear error and deserve special deference). Rosenbaum‘s amplified speech was loud enough to draw Officer Landon to the scene twice within fifteen minutes. There was no clear error in the district court‘s determination that Rosenbaum‘s amplified sound remained at an unreasonable volume despite police warnings, from which we may conclude that Officer Landon had probable cause to issue a citation under
The circumstances surrounding the August 9, 1996 citation also support probable cause for a violation of
Because both incidents of citation under
VI
Appellants argue that the City engaged in unconstitutional prior restraint in rejecting several permit applications based on appellants’ non-compliance with conditions attached to sound permits issued in the past.16
Laws that impose a prior restraint on the free exercise of speech have been disfavored as tantamount to censorship. See Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). In Fernandes v. Limmer the Fifth Circuit espoused the broad principle that a “[d]enial of a permit for prior violations unquestionably entails a total abridgement of a citizen‘s right to use the forum....” 663 F.2d 619, 632 (5th Cir. Unit A Dec.1981). In that case, the Fifth Circuit confronted a local ordinance governing literature distribution and fund solicitation at the Dallas-Fort Worth Airport, which provided, inter alia, that permits could be withheld in the event “the Applicant or any agent or representative of the Applicant ... has previously violated ... Regulations of the Dallas-Fort Worth Regional Airport Board, or has violated any of the terms and provisions of any prior Permit.” Id. (quoting local ordinance) (alteration in original). Because this statutory subsection effected a categorical denial of permits for prospective activity based solely on the fact of prior violations, the Fifth Circuit invalidated the ordinance on grounds of prior restraint. Id.; see also Kunz v. New York, 340 U.S. 290, 293, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (holding denial of permit to engage in outdoor religious activity based on earlier revocation of speech permit, where administrative officer had un-bounded discretion, was impermissible prior restraint).
The City relies on a Notice of Decision, issued on May 23, 1996, that upheld the denial of appellants’ application for an amplified sound permit proposed for five days in March of 1996 at the intersection of Fifth and Market Streets.17 A hearing was held on May 8, 1996, at which Sergeant Terence Collins (head of the Permit Section) reviewed letters written by proponents and opponents of appellants’ use of amplified speech, in addition to hearing live public comment.
Among other evidence, the hearing officer considered the testimony of Officer Dan Gallagher. Officer Gallagher initially denied the March 1996 applications, and, in the preceding months, had fielded complaints from frustrated citizens who disparaged appellants’ use of excessively loud
The hearing officer reviewed letters and heard comment by various neighborhood civic and business associations who similarly expressed frustration with appellants’ persistently loud amplified speech and music. These association representatives mentioned that their members’ businesses were disrupted and residents were subject to loud volumes in the late evening when children were trying to sleep. In the case of an assistant manager of the City‘s Visitor‘s Information Center, the hearing officer heard that many visitors, some of whom could not speak English well, were unable to communicate effectively because of appellants’ use of amplified sound. In addition to recounting a few alleged incidents of being baselessly “shut down,” Rosenbaum testified that the problem was not the level of sound, but rather “members of the homosexual community who oppose him.”18
Appellants are correct that in the May 23, 1996 Notice of Decision, the City cited prior instances in 1995 and early 1996 where plaintiffs were unwilling to comply with permit conditions as part of its grounds for denial. However, this cannot be viewed in isolation. Aside from the past violations, what is plain from the varied public comments documented in the Notice of Hearing was that appellants’ persistent use of unreasonably loud amplified speech and music was disruptive to both businesses and residents at the specified location, the intersection of Fifth and Market Streets. The hearing officer considered not only the misconduct inherent in the past violations, but also previous instances where plaintiffs received permits in March 1996 despite the widespread complaints in order to provide an “opportunity to reduce the volume of amplified sound in an effort to co-exist with the businesses in the area.”19 Despite this acknowledged
In this light, appellants’ reliance on the Fifth Circuit‘s decision in Limmer is inapt. The categorical permit ineligibility at issue in Limmer is different from the guided discretion exercised under
In the successful facial challenge in Limmer, the impermissible prior restraint was effectuated because under no circumstances could an applicant purge the taint of a previous violation. In sharp contrast, the evidence here supports the finding that the City police and its citizens engaged in an ongoing negotiation with appellants to reach accommodation despite the widely complained-of noise violations under
The Supreme Court decision in Kunz, 340 U.S. 290, 71 S.Ct. 312, on which appellants also rely, is inapposite. In Kunz, the defendant city revoked a Baptist minister‘s permit to hold an outdoor public meeting because he had in the past violated a New York statute forbidding the ridicule and denunciation of other religions. Id. at 292, 71 S.Ct. 312. The Supreme Court held that the permit denial due to a past violation of this statute was unconstitutional prior restraint because “the ordinance does not specify this as a ground for permit revocation.” Id.; see also id. at 294, 71 S.Ct. 312 (“[W]e have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.“).
Here, the hearing officer‘s reference to appellants’ past violations in context do not show an absolute prohibition based on past violation, but rather that the City hearing officer sought to balance, within constitutional bounds, the competing interests at the proposed permit location. In doing so, the hearing officer reasonably surmised from the instances of past misconduct, on-
VII
Appellants contend that the district court erred in not applying a substantive analysis of their free speech claims under article 1, section 2(a) of the California Constitution, which, in appellants’ view, provides more expansive rights than federal protections, including a burden on the state to prove that the speech activity was “incompatible” with the public forum. In failing to show incompatibility, appellants argue, the City did not prove that amplified speech by Livingston and Rosenbaum “blocked the sidewalks, caused congestion or otherwise interfered with the use of the public forum....” See App. Br. at 24. While acknowledging the asserted broader freedoms under article 1, section 2(a) of the California Constitution, the district court found, without further substantive analysis, “no reason” to conclude that appellants demonstrated a violation of state constitutional rights.
Article 1, section 2(a) of the California Constitution guarantees that “[e]very person may freely speak, write and publish his or her sentiments on all subjects.”
Here, appellants’ contention that their repeated use of amplified sound at exces-
In contrast to Pruneyard Shopping, regulation under
VIII
In conclusion, San Francisco‘s enforcement of its noise abatement ordinance, in its permitting and its law enforcement activities, did not violate the federal constitutional guarantee of equal protection of the laws, or its protection of First Amendment rights. Similarly, San Francisco‘s enforcement of its noise restrictions against appellants did not offend the California Constitution.
AFFIRMED.
RONALD M. GOULD
UNITED STATES CIRCUIT JUDGE