Monday, December 15, 2008
Ninth Circuit Rules Seattle Parade Ordinance Facially Unconstitutional
By SHERRI M. OKAMOTO, Staff Writer
The Ninth Circuit U.S. Court of Appeals on Friday overturned as facially unconstitutional a City of Seattle ordinance granting the chief of police wide discretion when issuing parade permits to require marchers to use sidewalks instead of city streets.
Reversing a district court’s grant of summary judgment in favor of the city, a divided panel ruled that the municipal ordinance violated the free speech guarantees of the First Amendment because it did not require the licensing official to justify his decision or provide any forum for appeal.
Seattle’s municipal code defines a “parade” to include “any organized movement or march of persons and/or things which requires the closure of streets to prevent a conflict with the regular flow of vehicular traffic,” and provides that the chief of police “shall grant a permit” upon written notification of a parade.
However, it also provides the chief with discretion to “modify the place and hour of formation, the proposed line of movement or march, and the scheduled starting time in the interest of vehicular or pedestrian traffic safety.”
Although Washington courts had not interpreted the ordinance, Seattle’s chief of police interpreted it as providing him with authority to require marchers to use the sidewalks in lieu of the streets, and to require marchers to obey traffic signals.
The Seattle affiliate of the October 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation sought a permit each year from the Seattle chief of police starting in 2001 to conduct a parade on October 22 coordinated with affiliates in 40 cities across the country to protest police brutality.
The organization had been staging parades in Seattle since 1996, and testified that it intended to continue holding similar events to publicly commemorate its “National Day of Protest to Stop Police Brutality” in the future.
However, in both 2002 and 2004, the Seattle chief of police issued the group a parade permit requiring marchers to use the sidewalk and obey traffic control signals if there were fewer than 200 marchers present, the group said.
Although a 2003 parade permit did not contain any minimum numbers requirement, the group said that on the day of the march police told an estimated 80-100 marchers that the permit had been “rescinded” based on their number, and the parade proceeded on the sidewalk along a designated route, with police escorting marchers on foot and bicycle.
The group filed suit in the U.S. District Court for the Western District of Washington, contending that the conduct of Seattle’s police officers at the 2003 parade violated their free speech and due process rights, and that the parade ordinance violated the First Amendment, but U.S. District Judge Robert S. Lasnik upheld the ordinance on a motion for summary judgment.
On the group’s appeal, Judge Raymond C. Fisher reasoned that the ordinance language permitting the chief of police to “modify…the proposed line of movement” granted him authority to alter parade routes by requiring marchers to use sidewalks instead of streets.
But, he cautioned that constructive denial of a permit could occur if police officials confined marchers to the sidewalk without providing a street escort or other police services, which could be challenged on an as-applied basis.
Even though the ordinance did not allow the chief of police to deny a request for a permit, Fisher explained, it was also susceptible to a facial challenge because it conferred unfettered discretion on the chief of police to modify the parade permits issued.
“The exclusive purpose of the Ordinance is to regulate constitutionally protected expressive activity, thereby creating a greater danger of both censorship and self-censorship than laws of general applicability that may incidentally be misused to burden expression,” he wrote.
“The danger of abuse is acutely presented in this case, where the speech the Coalition seeks to engage in—protesting police brutality—is directly critical of the governmental body that administers Seattle’s permit scheme.”
Citing a lack of standards to guide official discretion in applying the ordinance, combined with the absence of a requirement that officials articulate their reasons for modifying permits or an administrative-judicial review process, Fisher concluded that the ordinance created a risk of abuse that was “intolerable under the First Amendment.”
Judge Ronald M. Gould joined Fisher in his opinion, but Judge Sandra S. Ikuta dissented, characterizing the ordinance as “a garden-variety content-neutral time, place and manner restriction,” which was “far removed from a grant of unbridled discretion.”
She suggested that the traffic safety standard in the Seattle ordinance was sufficiently objective and defined to render city officials’ decisions subject to effective judicial review because a court was capable of evaluating whether permit modifications were based on personal feelings or prejudices.
“[N]either Supreme Court precedent nor our own case law supports the majority’s elevation of procedural safeguards to central importance in determining whether an ordinance grants officials unfettered discretion,” she commented.
The case is Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation v. City of Seattle, 06-35597.
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