CPR FOR SKID ROW, an unincorporated association; HAMID KHAN; PETER WHITE, Plaintiffs-Appellants,
CITY OF LOS ANGELES, Defendant-Appellee
Argued and Submitted, Pasadena, California: January
Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cv-06274-JFW-CW. John F. Walter, District Judge, Presiding.
The panel affirmed in part and reversed in part the district court's summary judgment and remanded in an action challenging a California statutory scheme pertaining to public protests.
Plaintiffs, CPR for Skid Row and two of its members, brought suit after the members were threatened with arrest and plaintiff Peter White was arrested for chanting loudly in protest of an organized walk by public officials and others through Los Angeles' Skid Row. Plaintiffs challenged California Penal Code § 403, which makes it a misdemeanor to " willfully disturb or break up any assembly or meeting that is not unlawful in its character, other than an assembly or meeting referred to in . . . Section 18340 of the Elections Code." Section 18340 makes it a misdemeanor to willfully hinder or prevent, by threats, intimidations, or unlawful violence, " electors from assembling in public meetings for the consideration of public questions."
Affirming in part, the panel held that § 403 was not unconstitutional on its face. The panel rejected plaintiffs' challenge to § 403 on the grounds that it was unconstitutionally vague or an unconstitutional restriction on speech.
Reversing in part, the panel held that California Penal Code § 403 was unconstitutionally applied to CPR's activities. The panel held that the plain language of the statute and its legislative history demonstrate that § 403 does not cover political meetings, including the meeting at issue here. The panel held that because CPR's activities fell within the exception carved out by Elections Code § 18340, § 403 did not criminalize CPR's conduct.
Concurring in part and dissenting in part, Judge Reinhardt agreed with the majority's reversal of the district court's judgment in favor of the defendant and its holding that § 403 of the Penal Code may not be applied to plaintiffs. Judge Reinhardt would hold, however, that § 403 (and § § 18340 and 302 as well) are unconstitutionally void for vagueness and not simply as applied in the particular circumstances. In addition, although he would not decide the question, Judge Reinhardt believes the statutory scheme, or at least a part of it, is likely also unconstitutional as content-based.
Carol A. Sobel (argued), Law Office of Carol A. Sobel, Santa Monica, California, for Plaintiffs-Appellants.
Kimberly Anne Erickson (argued), Deputy City Attorney, Laurie Rittenberg, Assistant City Attorney, and Carmen A. Trutanich, City Attorney, Los Angeles City Attorney's Office, Los Angeles, California, for Defendant-Appellee.
Before: Stephen Reinhardt and Richard R. Clifton, Circuit Judges, and Jennifer A. Dorsey, District Judge.[*] Opinion by Judge Clifton; Partial Concurrence and Partial Dissent by Judge Reinhardt.
Richard R. Clifton, Circuit Judge:
This appeal presents the question of whether California Penal Code § 403, which makes it a misdemeanor to " willfully disturb or break up any assembly or meeting that is not unlawful in its character, other than an assembly or meeting referred to in . . . Section 18340 of the Elections Code," is constitutional. Plaintiffs challenge that statute both facially and as applied to them. We hold that § 403 is not unconstitutional on its face and affirm, in part, the decision of the district court to that effect. Because § 403 does not properly apply to Plaintiffs' activity, however, we reverse the district court's summary judgment dismissing the action and remand for further proceedings.
Plaintiffs are an organization, CPR for Skid Row, and two of its members, Hamid Khan and Pete White (collectively " CPR" or " Plaintiffs" ). CPR was founded in 2011 to advocate for the rights of people who reside in the area of downtown Los Angeles known as Skid Row. White is also a founder and co-director of the Los Angeles Community Action Network.
CPR and its members oppose walks through the Skid Row neighborhood sponsored by the Central City East Association (" CCEA" ). CCEA is a non-profit corporation that administers two Business Improvement Districts in downtown Los Angeles and " serve[s] as the principal voice of industrial downtown." In conjunction with the Midnight Mission and Los Angeles City Councilperson Jan Perry, the CCEA in 2005 began organizing community neighborhood walks through Skid Row (the " Walks" ). According to the CCEA, the Walks are attended by public officials, law enforcement, members of the judiciary, students, academics, local business owners, social service providers, and the media. The Walks take place on the public sidewalks of the Skid Row neighborhood and, according to the CCEA, allow participants " to see for themselves and learn about the challenges, not through a windshield, but from the experience of walking through [Skid Row] and interacting
with social service representatives, police, residents and business owners."
Members of CPR, in contrast, believe that the Walks " support and promote the criminalization of homelessness and poverty and [are] comprised only of those from outside of [the Skid Row] community." According to CPR, the Walks are " dominated by police officers and representatives of the business community," which are " exactly the same institutions that are promoting the unprecedented levels of police presence, citations and arrests in Skid Row that have made many homeless and poor residents less safe and/or less stable." The Walks " do not represent the interests of the low-income community, nor [CPR's] vision for public safety." CPR members believe that " the public officials who participate [in the Walks] are demeaning and depersonalizing homeless individuals in order to gain support for repressive measures against the low-income residents of Skid Row who need critical assistance."
CPR thus began staging protests of the Walks. In preparation for the July 6, 2011 Walk, Lieutenant Shannon Paulson, the Los Angeles Police Department officer in charge of the Central Area Safer Cities Initiative Task Force in Skid Row, held a meeting with her officers and distributed photographs of particular individuals who had engaged in what she had deemed to be " aggressive" behavior at previous Walks in violation of California Penal Code § 403. White's photograph was not among those distributed.
At the July 6, 2011, Walk, CPR protestors shouted chants, including: " We are not resisting. This is our First Amendment Right." They also banged on drums, often in close proximity to the Walk participants. Lieutenant Paulson and Captain Todd Chamberlain spoke with legal observers from the National Lawyers Guild, informing them that the protestors could demonstrate but that " if it gets to the point when it is disturbing a lawful public meeting, just like we wouldn't let anyone do it to you, we can't let anyone do it to them." They warned the protestors that they could be arrested under § 403. Eventually, White, who was filming the Walk and the protest, was arrested by the LAPD for violating California Penal Code § 403, after he allegedly yelled loudly less than a foot away from one of the Walk attendees. He was booked and released on bail but was not charged with any violation of the law.
CPR filed a lawsuit against the City of Los Angeles asserting that California Penal Code § 403 is unconstitutional, both on its face and as applied, under the First and Fourteenth Amendments of the Constitution and analogous provisions of the California Constitution. The parties filed cross-motions for summary judgment. The district court granted the City's motion, holding that § 403 is constitutional both on its face and as applied, and denied CPR's motions for summary judgment, a preliminary injunction, and declaratory relief. Plaintiffs appeal.
II. Void for Vagueness Challenge
California Penal Code § 403 states, in its entirety:
Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character, other than an assembly or meeting referred to in Section 302 of the Penal Code or Section 18340 of the Elections Code, is guilty of a misdemeanor.
The first exception identified in § 403 is § 302 of the Penal Code. It concerns meetings
" for religious worship" and states, in relevant part:
Every person who intentionally disturbs or disquiets any assemblage of people met for religious worship at a tax-exempt place of worship, by profane discourse, rude or indecent behavior, or by any unnecessary noise, either within the place where the meeting is held, or so near it as to disturb the order and solemnity of the meeting, is guilty of a misdemeanor . . . .
The second exception listed in § 403, and the one particularly relevant to this case, is § 18340 of the Elections Code. It states, in its entirety:
Every person who, by threats, intimidations, or unlawful violence, willfully hinders or prevents electors from assembling in public meetings for the consideration of public questions is guilty of a misdemeanor.
The Elections Code defines " elector" as
any person who is a United States citizen 18 years of age or older and . . . is a resident of an election precinct at least 15 days prior to an election[, or is not a resident but either]
(1) He or she was a resident of this state when he or she was last living within the territorial limits of the United States or the District of Columbia[, or]
(2) He or she was born outside of the United States or the District of Columbia, his or her parent or legal guardian was a resident of this state when the parent or legal guardian was last living within the territorial limits of the United States or the District of Columbia, and he or she has not previously registered to vote in any other state.
Cal. Elec. Code § 321.
A. CPR's Challenge
CPR contends that § 403 is void for vagueness because it is not clear what conduct is subject to the criminal penalties of § 403 and what conduct is covered by § 18340 and thus excluded from the reach of § 403. Section 18340 refers to " public meetings for the consideration of public questions," a category of meetings that, argues CPR, appears from the face of the statute to encompass the type of meeting at issue in this case. Electors, similarly, by the statutory definition, include anyone over 18 who resides in any election precinct. That is a vast group of potential participants that, again, encompasses the participants in the meeting at issue here.
This is significant, argues CPR, because § 18340 sets forth a standard for a misdemeanor that is different from, and higher than, the standard for a misdemeanor under § 403. While a person is subject to criminal penalties under § 403 if he " willfully disturbs or breaks up" a meeting, under § 18340 he is subject to penalties only if he uses " threats, intimidations, or unlawful violence" --more egregious conduct--to hinder or prevent the meeting in question from assembling. Thus, knowing what type of meeting is covered by § 18340, and therefore excluded from coverage under § 403, is critical to understanding what type of conduct exposes a person to criminal penalties under § 403.
A penal statute must " define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). An insufficiently definite statute is void for vagueness. Id. " [S]tandards of permissible statutory vagueness are strict in the area of free expression." NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). " Laws that are insufficiently clear are void for three reasons: (1) To avoid
punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of the laws based on arbitrary or discriminatory interpretations by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms." United States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir. 1996).
" [W]here a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked." Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (internal quotation marks, footnote, and alterations omitted). That § 403 " abuts upon sensitive areas of basic First Amendment freedoms" is evident in the facts of this case and in every available case involving the statute, all of which involve not merely speech or expressive conduct but core political speech. See, e.g., In re Kay, 1 Cal.3d 930, 936, 83 Cal.Rptr. 686, 464 P.2d 142 (1970) (rhythmic clapping during a congressman's speech); McMahon v. Albany Unified Sch. Dist., 104 Cal.App.4th 1275, 1280--81, 129 Cal.Rptr.2d 184 (Cal. Ct.App. 2002) (dumping gallons of garbage on the floor during a school board meeting as part of a speech about the problem of litter in the area of the high school); Saraceni v. City of Roseville, No. C041085, 2003 WL 21363458, at *2 (Cal. Ct.App. June 13, 2003) (attempting to address the city council and city attorney at a city council meeting after the public comment period had ended); Norse v. City of Santa Cruz, 629 F.3d 966, 970 (9th Cir. 2010) (en banc) (giving a silent Nazi salute and whispering to another meeting attendee in city council meetings); Sanchez v. City of Los Angeles, No. CV 07--5132 GHK (JC), 2011 WL 6951822, at *2 (C.D. Cal. Oct. 31, 2011) (attending a city council meeting with a pillow case, attached to a shirt, that read " CRA Destroys Communities" ).
" [A] plaintiff seeking to vindicate his own constitutional rights may argue that an ordinance is unconstitutionally vague or impermissibly restricts a protected activity." Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033 (9th Cir. 2006) (citations, alterations, and internal quotation marks omitted). Where, as here, plaintiffs make a facial constitutional challenge to a state law, " a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered." Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).
The California Supreme Court has interpreted § 403 only once. In re Kay, 1 Cal.3d 930, 936--37, 83 Cal.Rptr. 686, 464 P.2d 142 (1970), concerned the arrest and conviction of four people for engaging in " rhythmical clapping" and " some shouting for about five or ten minutes" during the speech of a congressman in a public park at an Independence Day celebration. The California Supreme Court noted that § 403 could be read to cover speech protected by the First Amendment. Applying the common presumption that the legislature intended to enact a valid statute, however, it interpreted the statute more narrowly to render it constitutional. It held that § 403 requires " that the defendant substantially impair the conduct of the meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or ...