IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Transcription

1 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 1 of 31 PageID #: 26 LOIS K. PERRIN 8065 DANIEL M. GLUCK 7959 ACLU OF HAWAII FOUNDATION P.O. Box 3410, Honolulu, HI Telephone: (808) Fax: (808) dgluck@acluhawaii.org Of Counsel: DAVIS LEVIN LIVINGSTON MARK S. DAVIS MICHAEL K. LIVINGSTON MATTHEW C. WINTER Davis Levin Livingston Place 851 Fort Street, Honolulu, HI Telephone: (808) Fax: (808) mwinter@davislevin.com Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII JUSTIN GUY, vs. Plaintiff, COUNTY OF HAWAII, a municipal corporation, CIV. NO MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER OR, IN THE ALTERNATIVE, FOR PRELIMINARY INJUNCTION Defendant

2 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 2 of 31 PageID #: 27 TABLE OF CONTENTS I. INTRODUCTION... 1 II. STATEMENT OF FACTS... 2 A. Interference with Plaintiff Guy s First, Fourth, and Fourteenth Amendment Rights... 2 B. Criminal Prosecution of Plaintiff Guy... 5 C. Attempts to Resolve this Issue Without Litigation... 6 D. Defendant County s Continued Implementation of Policy Banning Solicitation in Public... 7 E. Ongoing, Irreparable Harm to Plaintiff Guy... 7 III. STANDARD OF REVIEW... 8 IV. ARGUMENT...10 A. Plaintiff Is Likely to Succeed On the Merits HCC and 15-20(a) are unconstitutional on their face and as applied to Plaintiff Guy Even if Defendant County s ordinances and actions were content-neutral, any source of authority that purported to allow a wholesale ban from public property is not narrowly tailored...16 B. Plaintiff Is Suffering Irreparable Harm...19 C. The Balance of Equities Tips Sharply In Plaintiff s Favor...21 ii

3 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 3 of 31 PageID #: 28 D. A Preliminary Injunction Is In The Public Interest...22 V. NO SECURITY SHOULD BE REQUIRED...23 VI. CONCLUSION...24 iii

4 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 4 of 31 PageID #: 29 TABLE OF AUTHORITIES Constitutional Provisions U.S. Const., amend. I... 1, 2, 4, 9, 10, 11, 12, 13, 14, 20, 21, 22, 23 U.S. Const., amend. IV... 2 U.S. Const., amend. XIV... 2 Statutes HRS 291C HRS 291C HRS 291C-77(a)... 5 Rules Fed. R. Civ. P. 65(c)...23 Cases ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), aff d 521 U.S. 844 (1997)...21 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir.2011)...8, 22 Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014)... 9 Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999)...23 Benefit v. City of Cambridge, 679 N.E.2d 184 (Mass. 1997)...11 Blair v. Shanahan, 775 F. Supp (N.D. Cal. 1991)...11 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)...17 Coates v. City of Cincinnati, 402 U.S. 611 (1971)...15 iv

5 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 5 of 31 PageID #: 30 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (en banc), cert. denied, 132 S. Ct (2012) , 11, 17, 18 Dex Media West, Inc. v. Seattle, 790 F. Supp. 2d 1276 (W.D. Wash. 2011)...23 Dombrowski v. Pfister, 380 U.S. 479 (1965)...22 Farris v. Seabrook, 677 F.3d 858 (9th Cir. 2012)... 8 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)...15 Frisby v. Schultz, 487 U.S. 474 (1988)...18 Goldie s Bookstore, Inc. v. Super. Ct. of California, 739 F.2d 466 (9th Cir. 1984)...20 Grossman v. City of Portland, 33 F.3d 1200 (9th Cir. 1994)...12 Int l Soc y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)...11 Int l Soc y for Krishna Consciousness v. Kearnes, 454 F. Supp. 116 (E.D. Cal. 1978)... 21, 23 Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003)...24 Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009), cert. denied, 559 U.S. 972 (2010)...20 Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009)... 17, 18 Loper v. N.Y. City Police Dep t, 999 F.2d 699 (2d Cir. 1993)...11 Los Angeles v. Lyons, 461 U.S. 95 (1983)...20 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009)... 8 McCullen v. Coakley, 134 S.Ct (2014)...16 v

6 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 6 of 31 PageID #: 31 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)...22 Police Dep t of Chicago v. Mosley, 408 U.S. 92 (1972)...13 R.A.V. v. St. Paul, 505 U.S. 377 (1992)...13 Sammartano v. First Jud. Dist. Ct., 303 F.3d 959 (9th Cir. 2002)...22 Save our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2004)...23 Schneider v. Town of Irvington, 308 U.S. 147 (1939)...19 Snyder v. Phelps, 131 S.Ct (2011)...12 Speet v. Schuette, 889 F. Supp. 2d 969 (W.D. Mich. 2012)... 11, 13 Terminiello v. City of Chicago, 337 U.S. 1 (1949)... 15, 22 Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622 (1994)...17 United States v. Alvarez, 132 S.Ct (2012)...14 United States v. Grace, 461 U.S. 171 (1983)...14 United States v. Playboy Entm t Grp., Inc., 529 U.S. 803 (2000)... 10, 14 United States v. Raines, 362 U.S. 17, 27 (1960)...22 Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013)...18 Village of Schaumburg v. Citizens for a Better Env t, 444 U.S. 620 (1980)...10 Ward v. Rock Against Racism, 491 U.S. 781 (1989)... 16, 17 Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)... 8 Young v. United States, 481 U.S. 787 (1987)...20 vi

7 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 7 of 31 PageID #: 32 Treatises 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE (3d ed. 2013)...20 Other Authorities Helen Hershkoff and Adam S. Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 HARV. L. REV. 896 (1991)...11 vii

8 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 8 of 31 PageID #: 33 MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER OR, IN THE ALTERNATIVE, FOR PRELIMINARY INJUNCTION I. INTRODUCTION Plaintiff Justin Guy would like to hold a sign, stating that he is homeless and that he needs help, in traditional public fora. He is entitled to do so pursuant to the First Amendment to the United States Constitution. Defendant Hawaii County has repeatedly interfered with Plaintiff Guy s right to do so; most recently, on June 3, 2014, a Hawaii County Police Department ( HCPD ) Officer issued a criminal citation to Plaintiff Guy, citing him for violating a Hawaii County Code ( HCC ) provision prohibiting solicitation but not other kinds of speech in a wide variety of public places. The criminal charges against Plaintiff Guy were dismissed without prejudice on August 18, yet Plaintiff Guy is fearful that he will be subject to further citation, arrest, prosecution, and/or incarceration if he attempts to engage in this type of constitutionally protected speech in the future. Plaintiff s counsel has been attempting to resolve this issue informally with the Hawaii County Office of the Corporation Counsel for more than a year. Specifically, Plaintiff s counsel has contacted the Office of the Corporation Counsel five times since June 2013, asking both the current Corporation Counsel and her predecessor to address several facially unconstitutional ordinances that unlawfully prohibit solicitation in public places in Hawaii County. The Office of

9 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 9 of 31 PageID #: 34 Corporation Counsel has never provided Plaintiff s counsel with a substantive response. The existence of these unconstitutional ordinances (specifically, HCC and 15-20(a)), and Defendant County s apparent policy, practice and/or custom of ordering those engaged in solicitation to leave public property or face criminal prosecution, has caused (and continues to cause) Plaintiff Guy to fear exercising his First Amendment right to speak on public property, and this chilling of speech is causing Plaintiff Guy irreparable harm. As such, Plaintiff seeks a temporary restraining order from this Court to preserve the status quo and prevent Defendant County from threatening him as he engages in protected free speech in public fora. II. STATEMENT OF FACTS A. Interference with Plaintiff Guy s First, Fourth, and Fourteenth Amendment Rights Plaintiff Guy is homeless. Declaration of Justin Guy ( Guy Decl. ) 3. One day in April or May 2014, he stood near the intersection of Luhia and Kaiwi Streets in Kailua-Kona, Hawaii holding a sign saying Homeless Please Help. Id. 4. Specifically, he was standing on Kaiwi Street, immediately before Luhia Street (near the Island Naturals store), next to an electrical/light pole. Id. 5, 7. There is no concrete sidewalk in that area; instead, next to the paved road surface, there is a large shoulder area with gravel. Id. 5 and Ex. 1. Pedestrians frequently walk along the side of the road at that intersection, both on the pavement and on 2

10 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 10 of 31 PageID #: 35 the gravel. Id. 5 and Ex. 1. Indeed, even in the Google Maps image of that location, there are pedestrians along the side of the roadway. Id. at Ex. 1. While Plaintiff Guy stood alongside the roadway, holding his sign, an HCPD Officer drove up to him on Kaiwi Street. Id. 7. The Officer rolled down his window and said something to the effect of, What you are doing is illegal. Id. The Officer told Plaintiff Guy to stop engaging in that behavior in front of the Officer. Id. As that Officer started to drive away, a second Officer pulled up in a car right behind him. Id. 8. The second Officer asked Plaintiff Guy something to the effect of, What did that guy just tell you? Id. After Plaintiff Guy told the second Officer about his conversation with the first Officer, the second Officer said something to the effect of, You better leave right now. Id. Approximately one to two months later, on June 3, 2014, Plaintiff Guy went back to the same spot near the intersection of Luhia and Kaiwi Streets and again held a sign saying Homeless Please Help. Id. 9. An HCPD Officer drove up to Plaintiff Guy and said something to the effect of, What you re doing is illegal and you need to leave right now. Plaintiff is informed and believes that the Officer s name is Mario Ochoa. Id. 10. Officer Ochoa was clear in telling Plaintiff Guy that panhandling is illegal and that Plaintiff Guy had to leave the area. Id. Officer Ochoa did not give any indication as to when, if ever, Plaintiff Guy could return to this public property. Id. Officer Ochoa also told Plaintiff Guy to get a job. Id. 3

11 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 11 of 31 PageID #: Plaintiff Guy told Officer Ochoa that he believed panhandling was not illegal, at which point Officer Ochoa parked his car (which Plaintiff Guy believes was a white sport utility vehicle, with a license plate that said something to the effect of combat veteran ). Id. Officer Ochoa then approached Plaintiff Guy and asked him for identification, which Plaintiff Guy provided. Id. Plaintiff Guy did not believe he could refuse the Officer s request or that he could leave the area. Id. Plaintiff Guy told Officer Ochoa that he would go to a different location and hold a sign asking for help in that location instead. Id. 12. Officer Ochoa told Plaintiff Guy that if he did so, he would be arrested. Id. Officer Ochoa cited Plaintiff Guy for Panhandling pursuant to HCC Id. 13 and Ex. 2. The citation states that Plaintiff Guy was told to leave the area. Id. Ex. 2. The citation does not indicate which subsection(s) of HCC Plaintiff Guy allegedly violated, see id., though his conduct does not actually appear to be prohibited by the plain language of HCC These were not the only two instances in which HCPD officers had interfered with Plaintiff Guy s right to engage in protected First Amendment speech. Roughly eighteen months ago, Plaintiff Guy was sitting on a concrete wall near the Hulihee Palace at Alii Drive, between the sidewalk and the beach. Id and Ex.3. He was playing guitar, had his guitar case open on the sidewalk, and had a sign sitting in the case that said Tips. Id. A police 4

12 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 12 of 31 PageID #: 37 officer drove by and told Plaintiff Guy that he could not display the sign. Id. Plaintiff Guy asked whether he could instead display a sign saying donations, and the Officer responded that Plaintiff Guy could not have any signs of any kind. Id. Plaintiff Guy threw those signs away and stopped using them in his guitar case altogether. Id. B. Criminal Prosecution of Plaintiff Guy The Hawaii County Prosecuting Attorney filed an Amended Complaint against Mr. Guy on July 14, charging him with violating Hawaii Revised Statutes ( HRS ) 291C-23. Declaration of Daniel M. Gluck ( Gluck Decl. ) 7 and Ex. 4. Plaintiff Guy attended the arraignment and plea hearing in Kailua-Kona, with counsel, on July 17, Id. 7; Guy Decl. 15. On July 23, Plaintiff Guy s counsel filed a Motion to Dismiss the charge against Mr. Guy. Gluck Decl. 8. On August 5, the Prosecuting Attorney filed a Memorandum in Opposition to Mr. Guy s Motion to Dismiss, and on August 6, Mr. Guy s counsel filed a Reply Brief. 1 Id HRS 291C-23 provides that It shall be a petty misdemeanor for any person to wilfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control, or regulate traffic. The Prosecuting Attorney argued that Officer Ochoa s order was lawful pursuant to HRS 291C-77(a), which prohibits certain kinds of solicitation in some public places. Id To the extent Defendant County relies upon this statute to support or defend its actions in depriving Plaintiff Guy of his constitutional rights, Plaintiff maintains that this statute is unconstitutional, both on its face and as applied to him, pursuant to Comite de Jornaleros de Redondo Beach v. City of 5

13 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 13 of 31 PageID #: 38 The District Court of the Third Circuit scheduled a hearing on Mr. Guy s Motion to Dismiss for the afternoon of August 18. Id. 11. That morning, the Prosecuting Attorney filed a Motion for Nolle Prosequi Without Prejudice as to All Counts, and the Court entered a Notice of Entry and Judgment (granting the Prosecuting Attorney s Motion for Nolle Prosequi) later that day. Id. and Ex. 5. C. Attempts to Resolve this Issue Without Litigation Beginning in June of 2013, Counsel for Plaintiff repeatedly wrote to the Hawaii County Office of the Corporation Counsel to express concerns regarding the constitutionality of HCC In total, Counsel for Plaintiff has contacted the Office of the Corporation Counsel no fewer than five times since June 2013 to ask that Defendant County remedy this problem. Counsel first contacted Lincoln Ashida (the former Corporation Counsel for the County of Hawaii) regarding HCC and 15-20(a) on June 19, 2013, again on January 7, 2014, and for a third time on April 15, Gluck Decl. 4 and Ex. 1. Counsel also contacted Molly Stebbins (current Corporation Counsel for the County of Hawaii) about the constitutionality of HCC and its application to Plaintiff Guy on June 18, 2014 and again on June 24, Gluck Decl. 5 and Ex. 2. To date, no one from the Office of Corporation Counsel, or Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (en banc), cert. denied, 132 S. Ct (2012); see also Gluck Decl

14 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 14 of 31 PageID #: 39 any other County office, has provided a substantive response to Counsel s inquiries regarding the constitutionality of HCC or 15-20(a). Id. 5. D. Defendant County s Continued Implementation of Policy Banning Solicitation in Public Even after Counsel s most recent outreach to Defendant County in June 2014, Defendant County continued to enforce its policy of banning people engaged in protected free speech activities from public property. In the early afternoon of July 18, 2014 a full month after Plaintiff s Counsel contacted Corporation Counsel Molly Stebbins regarding this issue Plaintiff Guy was riding his bicycle in Kailua-Kona near the Sack N Save on Henry Street. Plaintiff Guy saw a man, who appeared as though he might be homeless, standing on a sidewalk speaking with a police officer. Guy Decl. 16. Plaintiff Guy believes that the officer talking with the man was Officer Ochoa, because he believes he recognized both the Officer and the same white SUV he had seen earlier. Id. After the Officer left, Plaintiff Guy talked to the man who appeared to be homeless. That man told Plaintiff Guy that the Officer stated that panhandling was illegal and that he (the homeless man) had to leave. Id. E. Ongoing, Irreparable Harm to Plaintiff Guy Plaintiff Guy wishes to continue holding a sign on public property, telling the public that he is homeless and that he would like their help. Guy Decl. 19. He wants people to know that it is hard being homeless. Id. He has not held any 7

15 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 15 of 31 PageID #: 40 sign in any public place in Hawaii County since being cited on June 3, however, out of fear that he will be cited or arrested if he does. Id. 20. He fears going to jail for holding a sign and asking for help. Id. He likewise fears soliciting in a public park. Id. 21. III. STANDARD OF REVIEW To obtain a temporary restraining order or a preliminary injunction, a plaintiff must demonstrate that (1) he is likely to succeed on the merits; (2) in the absence of preliminary relief he is likely to suffer irreparable harm; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). The Ninth Circuit has also articulated an alternate formulation of the Winter test, under which serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest. Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)) (internal quotation signals omitted). Plaintiff seeks a prohibitory injunction, maintaining the status quo, and Plaintiff has met his burden here. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, (9th Cir. 2009) (discussing the 8

16 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 16 of 31 PageID #: 41 standard of review for both prohibitory and mandatory injunctions). A prohibitory injunction prohibits a party from taking action, and preserves the status quo id. at 878 (internal quotation signals omitted), whereas [a] mandatory injunction orders a responsible party to take action id. at 879 (quoting Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996)). The status quo means the last, uncontested status which preceded the pending controversy. Id. at 879 (citations and quotation signals omitted). In the instant case, the status quo is allowing Plaintiff Guy to hold a sign in a traditional public forum, soliciting alms from the public. An injunction here would prohibit Defendant County from enforcing HCC and/or 15-20(a), or any other source of authority that purports to allow Defendant County to interfere with Plaintiff s First Amendment rights, such that a prohibitory injunction is the proper standard. See Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1061 (9th Cir. 2014) ( [L]ike other injunctions that prohibit enforcement of a new law or policy, Plaintiffs requested injunction is prohibitory. ). 9

17 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 17 of 31 PageID #: 42 IV. ARGUMENT Plaintiff meets the standard for a temporary restraining order (or preliminary injunction. First, Plaintiff has a substantial likelihood of success on the merits of his claim because Defendant s interference with Plaintiff s free speech rights is unconstitutional. Second, Plaintiff is suffering and is likely to continue suffering irreparable harm, insofar as his constitutional rights have been and continue to be violated. Third, the balance of equities tips in Plaintiff s favor: there is no hardship to Defendant, because Defendant has other means of achieving its goals than a wholesale restriction on constitutionally protected speech. Fourth, remedying constitutional violations is in the public interest. A. Plaintiff Is Likely to Succeed On the Merits The government bears the burden of proving the constitutionality of its actions when it restricts speech. United States v. Playboy Entm t Grp., Inc., 529 U.S. 803, 816 (2000). Defendant County cannot meet its burden here. Solicitation for money is protected expression under the First Amendment. In Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980), the U.S. Supreme Court recognized that charitable appeals for funds, on the street or door to door, involve a variety of speech interests communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes that are within the protection of the First Amendment. 10

18 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 18 of 31 PageID #: 43 Lower courts have concluded both that there is no meaningful distinction under the First Amendment between charitable solicitations by organized charities and personal solicitations for financial assistance, and that begging is a form of political speech. See, e.g., Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 944 (9th Cir. 2011) (en banc), cert. denied, 132 S.Ct (2012) (citing Int l Soc y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, (1992)); Loper v. N.Y. City Police Dep t, 999 F.2d 699, 704 (2d Cir. 1993) (anti-begging statute was not content neutral because it prohibit[ed] all speech related to begging, while allowing speech on other topics); Speet v. Schuette, 889 F. Supp. 2d 969, (W.D. Mich. 2012) (ordinance contentbased because it distinguishes between types of speech charitable solicitations vs. other types of advocacy ); Blair v. Shanahan, 775 F. Supp. 1315, (N.D. Cal. 1991); Benefit v. City of Cambridge, 679 N.E.2d 184, 188 (Mass. 1997). Begging, in particular, brings the problems of the poor off of the margins of society and into the mainstream, Helen Hershkoff and Adam S. Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 HARV. L. REV. 896, 914 (1991), and it frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation, Loper, 999 F.2d at 704. The Supreme Court has determined that sidewalks, as traditional public fora, occup[y] a special position in terms of First Amendment protection. Snyder v. 11

19 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 19 of 31 PageID #: 44 Phelps, 131 S.Ct. 1207, 1218 (2011); see also Grossman v. City of Portland, 33 F.3d 1200, 1204 (9th Cir. 1994) ( public fora have achieved a special status in our law; the government must bear an extraordinarily heavy burden to regulate speech in such locales ) (internal quotation signals, citation, and brackets omitted)). Twice this year, Plaintiff Guy was standing along the side of a public roadway (i.e., a traditional public forum) when HCPD officers ordered him to leave because he was soliciting (i.e., engaging in protected First Amendment speech). Guy Decl On June 3, Officer Ochoa seized Plaintiff Guy; told him that panhandling was illegal and that he (Plaintiff Guy) would be arrested if he attempted to engage in his speech somewhere else; ordered him to leave the area without providing any indication as to when, if ever, he might return or how, if at all, he might contest such a ban; and issued him a criminal citation. Id Plaintiff Guy was initially cited pursuant to HCC Guy Decl. Ex. 2. As set forth in subsection (i), infra, HCC (like HCC 15-20(a)) is a content-based restriction on speech that fails strict scrutiny. Nevertheless, as set forth in subsection (ii), infra, even if Defendant County points to some other source of authority to justify its declaration that panhandling is illegal (and that those engaged in solicitation speech may be cited, threatened with arrest, and/or banned from public property for indefinite periods of time), such authority would 12

20 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 20 of 31 PageID #: 45 be unconstitutional because it is not narrowly tailored to protect First Amendment rights. 1. HCC and 15-20(a) are unconstitutional on their face and as applied to Plaintiff Guy Any content-based restrictions including any restrictions that apply to solicitation but not to other kinds of speech are subject to strict scrutiny. Content-based restrictions on speech are presumptively invalid. R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992); see also Police Dep t of Chicago v. Mosley, 408 U.S. 92, 95 (1972). Prohibiting one category of speech (soliciting donations) while permitting other categories of speech (such as solicitation of passersby to sign a petition, or solicitation of motorists to support one political candidate over another) is a content-based restriction: a police officer must evaluate what a person says (the content of her speech) to determine whether she has violated the ordinance. See Speet v. Schuette, 889 F. Supp. 2d 969, 976 (W.D. Mich. 2012) (ordinance content-based because it distinguishes between types of speech charitable solicitations vs. other types of advocacy ); Loper, 999 F.2d at 705 (anti-begging statute was not content neutral because it prohibit[ed] all speech related to begging, while allowing speech on other topics). Hawaii County Code and 15-20(a) contain content-based restrictions that is, HCC and 15-20(a) prohibit solicitation/begging in multiple situations where other speech would be allowed. For example, HCC 14-13

21 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 21 of 31 PageID #: 46 75(5) prohibits solicitation within twenty feet of a public toilet, but allows any other kind of speech political campaigning, religious proselytization, signaturegathering for an anti-gmo petition, and so on in that same buffer zone. Similarly, HCC 15-20(a) prohibits begging in public parks, but contains no other restrictions on non-commercial speech. These are content-based restrictions. See Berger, 569 F.3d at 1051 (ordinance is content-based because, by its very terms, [it] singles out particular content for differential treatment ). Under the strict scrutiny test, a content-based restriction on speech will fail unless the government can prove that (1) it has a compelling justification for the restriction and (2) no less restrictive alternative exists. See United States v. Alvarez, 132 S.Ct. 2537, 2549 (2012) ( The First Amendment requires that the Government s chosen restriction on the speech at issue be actually necessary to achieve its interest. There must be a direct causal link between the restriction imposed and the injury to be prevented. (citation omitted)); United States v. Playboy Entm t Grp., Inc., 529 U.S. 803, 813 (2000) ( [A] content-based speech restriction... can stand only if it satisfies strict scrutiny.... [I]t must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government s purpose, the legislature must use that alternative. (citations omitted)); United States v. Grace, 461 U.S. 171, 177 (1983) (When a law imposes an absolute prohibition on a particular type of expression 14

22 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 22 of 31 PageID #: 47 within a traditional public forum, it will be upheld only if narrowly drawn to accomplish a compelling governmental interest. ). Defendant County cannot meet either prong of this test to justify a contentbased restriction on solicitation. First, Defendant County has no compelling interest in banning solicitation. The United States Supreme Court has consistently held that mere public intolerance or animosity cannot be the basis for abridgment of... constitutional freedoms, Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971), and speech cannot be punished on account of its profound unsettling effects or public inconvenience, annoyance, or unrest. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992) ( Listeners reaction to speech is not a content neutral basis for regulation. ). In other words, Defendant County has no constitutionally legitimate interest in banning panhandling because some residents and visitors might prefer not to see or hear the messages of panhandlers. Second, there are readily available alternatives to HCC 14-75, which completely prohibits solicitation twenty-four hours a day, every day of the year, on innumerable sidewalks, streets, and other traditional public fora. For example, if Defendant County were concerned that demonstrators in a political rally may cross a roadway in an unsafe manner, the proper response would be to cite those 15

23 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 23 of 31 PageID #: 48 pedestrians for jaywalking not to ban those demonstrators from speaking altogether. See HRS 291C-73. Similarly, there are readily available alternatives to HCC 15-20(a), which completely prohibits begging in every County park at all times: if the government is concerned that those engaged in begging will be hostile, it can prohibit (and has prohibited) assault, harassment, and the like; if the government is concerned about public safety at night, it can prohibit certain activities (or access to the parks) during certain hours. In sum, HCC (with the exception of HCC 14-75(a)(4)) and HCC 15-20(a) are content-based restrictions on speech that fail strict scrutiny. Plaintiff is therefore likely to succeed on the merits. 2. Even if Defendant County s ordinances and actions were content-neutral, any source of authority that purported to allow a wholesale ban from public property is not narrowly tailored As the United States Supreme Court recently explained, even if a law is content neutral, it must still be narrowly tailored to serve a significant governmental interest. McCullen v. Coakley, 134 S.Ct. 2518, 2534 (2014) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 796 (1989)). Defendant County may regulate the time, place, and manner of speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the 16

24 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 24 of 31 PageID #: 49 information. Ward, 491 U.S. at 791 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)); see also Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 945 (9th Cir. 2011) (en banc), cert. denied, 132 S.Ct (2012) (discussing same); Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, (9th Cir. 2009) (discussing same). The government bears the burden of showing that the remedy it has adopted does not burden substantially more speech than is necessary to further the government s legitimate interests. Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 665 (1994) (quoting Ward, 491 U.S. at 799). The United States Supreme Court recently reiterated both the meaning of and reasons for the narrow tailoring requirement: The tailoring requirement does not simply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily sacrific[ing] speech for efficiency. Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). McCullen, 134 S.Ct. at (emphasis added). See also Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, (9th Cir. 2008). The ordinance must target[] and eliminate[] no more than the exact source of the 17

25 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 25 of 31 PageID #: 50 evil it seeks to remedy, Frisby v. Schultz, 487 U.S. 474, 485 (1988), without significantly restricting a substantial amount of speech that does not create the same evils, Comite de Jornaleros, 657 F.3d at 947. scrutiny. Defendant County s ordinances and practices cannot survive constitutional Assuming arguendo that traffic safety is a substantial government interest, any statute or ordinance purporting to authorize HCPD officers to order Plaintiff Guy to leave a public thoroughfare for engaging in free speech is not narrowly tailored. Such an order an order banning an individual from an indeterminate area for an unspecified period of time does not allow ample alternatives for expression. As the Ninth Circuit has explained: The third criterion applicable to time, place and manner restrictions is that regulations must leave open ample alternatives for communication. Several considerations are relevant to this analysis. First, an alternative is not ample if the speaker is not permitted to reach the intended audience. Second, if the location of the expressive activity is part of the expressive message, alternative locations may not be adequate. Third, we consider the opportunity for spontaneity in determining whether alternatives are ample, particularly for political speech. Fourth, we consider the cost and convenience of alternatives. Long Beach Area Peace Network, 574 F.3d at 1025 (citations, internal quotation signals, and alterations omitted); see also Valle Del Sol Inc. v. Whiting, 709 F.3d 808, (9th Cir. 2013) (concluding that prohibition on roadside hiring of day 18

26 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 26 of 31 PageID #: 51 laborers was unconstitutional because Arizona s interest in traffic safety could have been advanced by enforcing or enacting more speech-neutral regulations). Defendant County cannot overly restrict protected speech in the name of traffic safety or blight any more than the government may forbid pamphlet distribution because recipients may litter. See Schneider v. Town of Irvington, 308 U.S. 147, 160 (1939). If drivers are behaving erratically in the vicinity of a person holding a sign, Defendant County can respond by citing those individual drivers not punishing the person holding the sign. The government must offer a contentneutral restriction that is narrowly tailored to meet the government s significant interests. No such authority exists. Any wholesale prohibition on soliciting in public fora whether based on HCC 14-75, HCC 15-20(a), or some other source of authority is unconstitutional. Defendant County enforces such a prohibition: it has repeatedly threatened Plaintiff Guy and has subjected him to criminal prosecution. Plaintiff is likely to succeed on the merits. B. Plaintiff Is Suffering Irreparable Harm Defendant is chilling Plaintiff s speech: Plaintiff is refraining from soliciting in public fora because of fear of being charged and prosecuted. Guy Decl

27 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 27 of 31 PageID #: 52 This chilling of Plaintiff s speech harms him irreparably. As the Supreme Court held, The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); accord Klein v. City of San Clemente, 584 F.3d 1196, (9th Cir. 2009), cert. denied, 559 U.S. 972 (2010). See also Goldie s Bookstore, Inc. v. Super. Ct. of California, 739 F.2d 466, 472 (9th Cir. 1984) ( An alleged constitutional violation will often alone constitute irreparable harm. ). Plaintiff will continue to suffer these harms unless Defendant is enjoined by this Court. See 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE (3d ed. 2013) (a plaintiff seeking injunctive relief must show that he or she can reasonably expect to encounter the same injury in the future ) (discussing Los Angeles v. Lyons, 461 U.S. 95 (1983)). Plaintiff Guy should not have to risk further citation, arrest, prosecution, and/or incarceration to vindicate his First Amendment rights. An arrest or the initiation of a criminal prosecution immediately produces a wrenching disruption of everyday life. Young v. United States, 481 U.S. 787, 814 (1987). Every arrest and prosecution is a public act that may seriously interfere with the defendant s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. United States v. 20

28 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 28 of 31 PageID #: 53 Marion, 404 U.S. 307, 320 (1971). It would take a hardy person who would risk defying HCC and/or 15-20(a) on the prediction that the order will subsequently be found unlawful, particularly when the penalty for predicting inaccurately is a criminal conviction. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 856 (E.D. Pa. 1996) ( Criminal prosecution... could itself cause incalculable harm. No... individual, non-profit corporation, or even large publicly held corporation[] is likely to willingly subject itself to prosecution for a miscalculation [of what speech is protected].... A successful defense to a criminal prosecution would be small solace indeed. ), aff d 521 U.S. 844 (1997). C. The Balance of Equities Tips Sharply In Plaintiff s Favor Defendant would suffer no discernible harm by the issuance of an injunction, and the balance of equities tips decidedly in favor of a preliminary injunction. See Int l Soc y for Krishna Consciousness v. Kearnes, 454 F. Supp. 116, 125 (E.D. Cal. 1978) (ruling, in a discussion on the First Amendment, that the existence of constitutional questions weighs heavily in the balancing of harms, for the protection of those rights is not merely a benefit to plaintiff but to all citizens ). While Plaintiff will continue to suffer irreparable harm, insofar as he will continue to be deprived of the ability to exercise his right to speak freely, Defendant County will not suffer any legitimate harm. Defendant had other laws at its disposal to address any problems with traffic safety and hostile behavior by individuals, and 21

29 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 29 of 31 PageID #: 54 speech cannot be punished merely because of public inconvenience. Terminiello, 337 U.S. at 4. Similarly, Plaintiff Guy should not have to risk further criminal prosecution to test his First Amendment claims. Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) ( Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression of transcendent value to all society, and not merely to those exercising their rights might be the loser. ). Because Plaintiff suffered and continued to suffer from irreparable harm while Defendant has no legitimate interests at stake, the balance of equities tips sharply in Plaintiff s favor. D. A Preliminary Injunction Is In The Public Interest Securing constitutional rights is clearly in the public interest, and courts have consistently recognized the significant public interest in protecting fundamental rights. See United States v. Raines, 362 U.S. 17, 27 (1960) ( [T]here is the highest public interest in the due observance of all the constitutional guarantees[.] ); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) ( [I]t is always in the public interest to prevent the violation of a party s constitutional rights. ) (citation and internal quotation signals omitted). This is particularly true for cases involving First Amendment freedoms. Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002) ( Courts 22

30 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 30 of 31 PageID #: 55 considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles. ), abrogation on other grounds recognized by Dex Media West, Inc. v. Seattle, 790 F. Supp. 2d 1276, 1289 (W.D. Wash. 2011); see also Int l Soc y for Krishna Consciousness, 454 F. Supp. at 125. In addition, an injunction here is in the public interest because the ordinances in question infringe upon the First Amendment rights of many persons who are not parties to this lawsuit. In sum, a temporary restraining order or preliminary injunction will protect Plaintiff s First Amendment rights, and will similarly serve to protect the rights of the public more generally. Issuance of an injunction is in the public interest. V. NO SECURITY SHOULD BE REQUIRED Waiver or imposition of a minimal bond is appropriate under Fed. R. Civ. P. 65(c) where, as here, a public interest organization is enforcing public rights on behalf of an individual plaintiff. See Save our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2004) (recognizing the court s long-standing precedent that requiring nominal bonds is perfectly proper in public interest litigation ); Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999) (district courts have discretion to waive Rule 65(c) s bond requirement). A bond is unnecessary when [the district court] concludes there is no realistic likelihood of harm to the defendant from enjoining his or her conduct. Jorgensen v. Cassiday, 320 F.3d 23

31 Case 1:14-cv Document 2-1 Filed 09/08/14 Page 31 of 31 PageID #: , 919 (9th Cir. 2003). Plaintiff requests that the Court set the bond amount at zero, or, in the alternative, set a minimal bond of no more than $ VI. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court grant Plaintiff s Motion for a Temporary Restraining Order or Preliminary Injunction. DATED: Honolulu, Hawaii, September 8, /s/ Daniel M. Gluck DANIEL M. GLUCK LOIS K. PERRIN AMERICAN CIVIL LIBERTIES UNION OF HAWAII FOUNDATION MARK S. DAVIS MICHAEL K. LIVINGSTON MATTHEW C. WINTER DAVIS LEVIN LIVINGSTON Attorneys for Plaintiff 24