Wednesday, April 16, 2008
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Court Overturns Ruling Striking Long Beach Parade Ordinance
By KENNETH OFGANG, Staff Writer
A federal district judge erred when he struck down Long Beach’s parade permit ordinance in its entirety two years ago, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Intervening case law, Judge William Fletcher wrote for the court, demonstrates that Long Beach Municipal Code Sec. 5.60 is valid to the extent that it distinguishes between expressive and other activity; allows the city manager to set conditions for a “special event” permit, including requiring proof of insurance, and to investigate claims that a sponsor is indigent for purposes of getting a waiver of the permit fee; and imposes criminal penalties for violations.
Fletcher agreed with U.S. District Judge S. James Otero, however, that the ordinance is unconstitutional to the extent that it requires a “special event” permit for any event involving 75 or more persons if the event “may require the provision of city public services in response thereto”; requires 24 hours’ notice of a “spontaneous” event, that is, one that is held in response to a newsworthy event that occurred or was disclosed in the previous five days; requires that event organizers grant the city a broadly worded hold-harmless and indemnification agreement; and grants officials unbridled discretion as to whether or not to waive permit fees and charges for city services.
The case was sent back to the lower court so that the judge can determine whether the valid and invalid provisions are severable.
Challenged by Activists
The ordinance was challenged by the Long Beach Area Peace Network, which Otero described as “an unincorporated, loosely organized group of peace activists without an office, organizational phone, organizational email or insurance.” The network brought the federal action after losing a small claims case in which it was held liable for nearly $6,000 in costs incurred by the city in connection with an antiwar march and rally held in March 2003.
Otero concluded that the ordinance was, in its entirety, an unconstitutional restraint on free speech. He granted a permanent injunction barring its enforcement.
While the city’s appeal was pending, however, the Ninth Circuit largely upheld a similar ordinance in Santa Monica, which had been challenged by a group called Food Not Bombs. Among other things, the court in Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006), upheld requirements that holders of expressive events indemnify the city for any claims resulting from the event, and that holders of non-expressive events indemnify the city and insure against possible losses.
The panel in the Long Beach case asked the parties to brief the impact of the Santa Monica decision, and concluded yesterday that it controlled as to some of the issues raised.
Fletcher yesterday distinguished cases holding that ordinances giving local officials unbridled discretion to deny permits or to impose conditions are unconstitutional.
Under the Long Beach measure, he noted, permit conditions set by the city manager must be reasonable; may be imposed only for specified reasons, such as protection of public safety and property, avoidance of conflicting uses of public property, and traffic control, with the manager required to offer a written explanation of the reason for each condition; and may not unduly interfere with constitutionally protected activity.
In addition, Fletcher pointed out, conditions may be appealed to the city council or the state courts.
In concluding that Long Beach’s insurance requirement is valid, Fletcher noted that it does not apply to constitutionally protected expressive activities if the sponsors sign a hold-harmless and indemnification agreement, or if they “agree to redesign or reschedule the permitted event to respond to specific risks, hazards and dangers to the public health and safety identified by the city manager as being reasonably foreseeable consequences” of the activity.
Provision Held Unconstitutional
The judge agreed with the plaintiffs, however, that the hold-harmless provision of the ordinance is unconstitutional because it would allow the city to hold marchers responsible for costs incurred as a result of responses by those with other points of view, or those resulting from negligence or misconduct by the city and its own employees.
Fletcher further concluded that the ordinance failed to narrowly define the types of services for which event organizers could be charged or the procedure for determining which groups would have to pay the charges and which would not.
Judge Harry Pregerson concurred in Fletcher’s opinion. Judge Marsha S. Berzon joined in the opinion but wrote separately to explain that she believed the insurance requirement to be content-based and thus unconstitutional, but was bound to uphold it under Food Not Bombs.
Attorneys on appeal were Randall C. Fudge of the Long Beach City Attorney’s Office for the city and Santa Monica sole practitioner Carol A. Sobel for the plaintiffs.
The case is Long Beach Area Peace Network v. City of Long Beach, 05-55083.
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