American Civil Liberties Union of Idaho, Inc. et al v. City of Boise

Filing 18

MEMORANDUM DECISION AND ORDER granting in part and denying in part 4 Motion for Preliminary Injunction; denying as moot 16 Plaintiff's Renewed Request for Expedited Consideration. The City of Boise is ENJOINED from enforcing as Prohibited Ac ts Sections 1., B., 2 - 7, and 9-11 of City of Boise Ordinance NO. ORD-34-13. Plaintiffs are not required to post a security bond. The injunction shall remain in place until further order of this Court. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

AMERICAN CIVIL LIBERTIES
UNION OF IDAHO, INC., an Idaho
nonprofit corporation, LARRY
SHANKS, and TROY MINTON,

Case No. 1:13-CV-00478-EJL
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
CITY OF BOISE, an Idaho municipal
corporation,
Defendant.

Pending before the Court in the above-entitled matter is Plaintiffs’ Motion for
Preliminary Injunction (Dkt. 4). The parties stipulated to an expedited briefing schedule
since the ordinance at issue in this case becomes effective on January 2, 2014. Having
fully reviewed the record, the Court finds that the facts and legal arguments are
adequately presented in the briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court conclusively finds that the decisional process would
not be significantly aided by oral argument, this matter shall be decided on the record
ORDER - 1

before this Court without oral argument.
BACKGROUND
Plaintiffs American Civil Liberties Union of Idaho, Inc. (“ACLU”), Larry Shanks
(“Shanks”), and Troy Minton (“Minton”) filed a Complaint and Motion for Preliminary
Injunction alleging Defendant City of Boise’s (“City”) Ordinance NO. ORD-34-13
(“ORD -34-13”) is in violation of the United States Constitution, 42 U.S.C. Section 1983
and the Idaho Constitution. Specifically, the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment. Additionally, Plaintiffs argue the ordinance is
unconstitutionally vague.
ORD34-13 was passed by the Boise City Council and approved by the Mayor on
September 17, 2013 and becomes effective on January 2, 2014. The City maintains the
ordinance does not violate the United States Constitution or the Idaho Constitution and is
not vague or overbroad. The City argues the ordinance was passed to expand the City’s
existing aggressive solicitation ordinance as well as to curb harassing or unsafe
panhandling. The City’s press release indicates the ordinance came in response to
requests from local business owners and residents who have reported an increase in
panhandling activities in recent years.
ORD34-13 defines “aggressive manner” solicitation and prohibits the same.
Plaintiffs do not challenge this portion of the ordinance. Rather, Plaintiff’s challenge
ordinance’s prohibition of non-aggressive solicitations for donations of money or

ORDER - 2

property in other public areas. The Plaintiffs claim the ordinance unlawfully restricts
their freedom of speech. The City argues the restriction of speech is a proper time,
manner and location restriction in order to satisfy a legitimate governmental interests.
Further, the City challenges the Plaintiffs’ standing to bring this action.

STANDARD OF REVIEW
To obtain a preliminary injunction, Plaintiffs must show: (1) a likelihood of
success on the merits; (2) a likelihood of irreparable harm to them in the absence of
preliminary relief; (3) that the balance of equities tips in their favor; and (4) that an
injunction is in the public interest. Winter v. Natural Res. Def Council, 555 U.S. 7, 20-23
(2008). The Ninth Circuit has held that “‘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.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Further, “under Winter,
plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain
a preliminary injunction.” Id. at 1131 (emphasis in original).
For First Amendment challenges where the plaintiff makes a colorable First
Amendment claim, the burden shifts to the defendant to justify its speech restrictions.
Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011).

ORDER - 3

The Court begins with the presumption that the ordinance at issue is Constitutional
and will determine if the ordinance can be interpreted to be satisfy the Constitution. “It is
a ‘well established principle that statutes will be interpreted to avoid constitutional
difficulties.’” Berger v. City of Seattle, 569 F.3d 1029, 1046 (9th Cir. 2009) (internal
citations omitted). See also, Ctr. For Bio-Ethical Reform, Inc., v. L.A. County Sheriff’s
Dep’t, 533 FG.3d 780-791-98 (9th Cir. 2008) (construing an ambiguous statute narrowly
to avoid First Amendment problems).

ANALYSIS
1. Standing
The burden to establish standing to bring an action lies with the party seeking
federal jurisdiction. Bennett v. Spear, 520 U.S. 154, 167-68 (1997). Each plaintiff must
show “that (1) he or she personally has suffered some actual or threatened injury as a
result of the challenged conduct; (2) the injury can be fairly traced to that conduct; and (3)
the injury likely will be redressed by a favorable decision from the court. See Valley
Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S.
464, 472 (1982). To establish standing in this case, each plaintiff must show that they
engage in a “course of conduct arguably affected with a constitutional interest and that
there is a credible threat that the provision will be invoked against the plaintiff.” Valle
del Sol v. Whiting, 732 F.3d 1006, 1015 (9th Cir. 2013).

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First, the City challenges the ACLU’s standing to bring this action as the scenarios
alleged which would make the ACLU’s agents in violation of the ordinance are not the
type of actions the ordinance is meant to prohibit. The ACLU claims it raises funds for
its activities from individuals and that such solicitation of monies may occur at sidewalk
cafes or other restricted areas as outlined in ORD 34-13. While it is true City’s purpose
in passing the ordinance appears to be focused on reducing “panhandling” versus
fundraising by non-profit organizations, the wording of the ordinance could arguably be
applied to consensual solicitation efforts by non-profit organizations on sidewalks and
sidewalk cafes in downtown Boise. The ACLU has standing even if prosecution is only
“remotely possible.” Canatella v. State of California, 304 F.3d 843, 855 (9th Cir. 2002).
The Court finds the ACLU has satisfied the requirements for standing in this case based
on the affidavits of its agents regarding their solicitation activities in downtown Boise.
Second, the City challenges the standing of Shanks who avers in the Complaint he
is a street musician and is learning to play for donations on the sidewalks of Boise.
Shanks is concerned any oral request for donations he makes will cause him to violate
ORD-34-13. The City responds the ordinance does not prohibit street performances, so
Shanks has no standing. The City misses the point, it is not the street performances that
create a possible violation, it is the street performer’s request for money or donations to
support the performance that would potentially be in violation if made orally or possibly
even with a sign if the street performer is acting in any manner other than passive. The

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Court finds Shanks has satisfied the requirements for standing in this case.
Third, without explanation, the City argues Minton, a Boise resident who solicits
donations on the streets and sidewalks of Boise has no standing. The Court finds this
argument meritless as Minton admits in his declaration to conducting the type of
solicitation specifically prohibited under the ordinance and plans to continue soliciting in
the future. Minton clearly has more than a remote possibility of being prosecuted under
ORD 34-13 and has standing to bring this action.
For purposes of the motion for preliminary injunction, the Court finds the
Plaintiffs have each carried their burden in establishing standing. The Court will now
address the requirements for a preliminary injunction.

2. Likelihood of Success on the Merits
Plaintiffs bring a facial and overbreadth challenge to the ordinance. This case is
not about whether being asked for a donation of money on a sidewalk makes a person feel
uncomfortable. This case is about whether under our Constitution a person has a First
Amendment right to ask for money in a public forum or whether the government can
reasonably restrict such right to achieve appropriate governmental interests. Based on the
initial briefing of the parties, this Court must decide whether Plaintiffs and the City have
carried their burdens and whether Plaintiffs have a likelihood of success on the merits of
their challenges to ORD 34-13.

ORDER - 6

ORD 34-13 restricts aggressive solicitation. Sec. 1, B., 1. It also prohibits
solicitation while in an open public area while a person is waiting in line to be admitted to
a commercial establishment, while on Boise’s public transportation systems, in open
public areas within twenty (20) feet of an ATM or entrance to a banking establishment,
sidewalk café, mobile or street vendor, any entrance or exit from a public toilet facility
(including temporary port-a- potties), any bus stop, taxi stand or valet drop off/pickup
station or stand, any parking pay box or station. Sec. 1. B., 2 - 6, 10 -11. Solicitation in a
public parking garage is prohibited. Sec. 1., B., 11. The ordinance also restricts
solicitation speech on any parkway or roadway whenever the person soliciting enters the
roadway or would have to accept the money or thing of value and solicitation of
pedestrian whenever the pedestrian “is or may” be impeded from or delayed in crossing
the roadway. Sec. 1, B., 8 -9. Solicitation on private property (even if open to the public)
is prohibited if the property owner/tenant/occupant has informed or posted a sign
prohibiting solicitation. Sec. 1., B., 7.
Solicit or solicitation is defined as “to request, ask, or beg, whether by words,
bodily gestures, signs, or other means, for an immediate donation of money or other thing
of value, including the purchase of an item or service for an amount far exceeding its
value, under circumstances where a reasonable person would understand that the purchase
is a donation.” Sec. 1, A., 7. of ORD 34-13.
ORD34-13 does provide an exception for “passively standing on the public

ORDER - 7

sidewalk or plaza or sitting on a sidewalk bench or plaza bench with a sign or other
written indication that one is seeking donations without orally addressing the request to
any specific person.” Sec. 1, C. Moreover, the ordinance creates a second exception for
“lawful exercise of one’s constitution right to picket, protest or stand on the sidewalk
even when doing so make passage less convenient for others having to walk around the
person picking, protesting, or standing.” Id.
Except for aggressive solicitation which is a misdemeanor for a first offense, the
other prohibitions are infractions on the first offense and misdemeanors for subsequent
offenses. Therefore, the Court finds it is undisputed that ORD 34-13 criminalizes certain
solicitation speech.
The City does not contest that the many of the areas subject to ORD34-13 are
places generally publicly owned, free and open to the public and available for public
communication. The ordinance defines “open public area,” “parkway,” “plaza” and
“public sidewalk” to include traditional public forums. Sec. 1. A., 2 -5. For purposes of
this motion for injunctive relief, the Court will assume the prohibited areas are traditional
public forums unless otherwise discussed. See American Civil Liberties Union of Nevada
v. City of Las Vegas, 333F.3d 1092, 1100 & n.7 (9th Cir. 2003) (collecting cases
describing factors in evaluating the nature of a forum).
“The protections afforded by the First Amendment are nowhere stronger than in
the streets and parks both categorized for First Amendment purposes as traditional public

ORDER - 8

fora.” Berger v. City of Seattle, 569 F.3d 1029, 1036 (9th Cir. 2009) (citing Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). However, certain
restrictions on speech in public fora are valid and a municipality may issue reasonable
regulations governing the time, place or manner of speech. See Grossman v. City of
Portland, 33 F.3d 1200, 1205 (9th Cir. 1994). To satisfy the Constitution, any time, place
or manner restrictions must meet three criteria: (1) it must be content-neutral; (2) it must
be “narrowly tailored to serve an significant governmental interest”; and (3) it must
“leave open ample alternative channels for communication of the information.” Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989). If a regulation is not content neutral,
which is to say it is content based, then the regulation must withstand a strict scrutiny
review which means the City must show its ordinance is the least restrictive means of
furthering a compelling government interest and that the ordinance is actually necessary
to achieve that interest. See United States v. Alvarez, __ U.S. __, 132 S.C. 2537, 2544
and 2549 (2012). “A content based regulation, on the other hand, is “presumptively
unconstitutional,” . . . and subject to strict scrutiny.” American Civil Liberties Union of
Nevada v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006) (internal citations
omitted).
Under the First Amendment free speech clause, “[a] regulation is content-based if
either the underlying purpose of the regulation is to suppress particular ideas or if the
regulation, by its very terms singles out particular content for differential treatment.”

ORDER - 9

Valle del Sol Inc., v. Whiting, 709 F.3d 808 (9th Cir. 2013) (quoting Berger v. City of
Seattle, 569 F.3d 1029,1051 (9th Cir. 2009).
Charitable solicitation by individuals is protected by the First Amendment. See
Vill. of Schaumburg v. Citizens for a Better Env’t, 44 U.S. 620, 632 (1980); Clatterbuck v.
City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013) (“the speech and expressive
conduct that comprise begging merit First Amendment protection”). Because the
ordinance restricts charitable solicitations in certain areas of the City, the Court finds the
Plaintiffs have presented a colorable First Amendment challenge to ORD 34-13 and the
burden shifts to the City to show that its speech restrictions comply with the First
Amendment requirements.
The City maintains ORD 34-13 is content neutral and cites the Court to a Seventh
Circuit case for guidance. See Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000). This
Court is bound by Ninth Circuit law and finds the analysis in Gresham inconsistent with
recent Ninth Circuit precedents. In examining the definition of solicitation used in ORD
34-13, the Court finds Plaintiffs are likely to succeed on the merits of their claim that the
ordinance is not content neutral. The purpose of the ordinance is to suppress particular
speech related to seeking charitable donations and treats this speech content different than
other solicitation speech. The ordinance does not restrict solicitation of signatures for
petition on a matter of public concern, political support solicitation, religious solicitation,
etc in the same public areas. It only restricts solicitation speech for donations of money

ORDER - 10

or property. The City indicates the ordinance does not restrict the fundraising activities of
organizations like the ACLU, but the wording of the ordinance does not limit its
application to “who” is making the solicitation. The City also maintains the ordinance
will not be enforced against street performers who solicit for money. This distinction
between street performers is not explained in the ordinance to be an exception. Further,
the City does not explain why a street performer on the city sidewalks asking for money is
materially different that an individual asking for money. Both are soliciting for money.
So every person who solicits for money or property in the public areas defined in the
statute are potentially criminally liable based merely on the content of their speech. Yet
other speech not associated with soliciting money or property towards a person standing
in line on a sidewalk, waiting for bus, eating at an outdoor café, walking towards an ATM
is allowed under the ordinance.
For purposes of this motion, the Court finds the City has not carried its burden in
establishing the ordinance is content neutral. Even if the ordinance could be construed as
content neutral, the Court finds the City has also failed to provide evidence that the
ordinance is narrowly tailored to meet a significant governmental interest. While the
aggressive solicitation prohibition is clearly related to public safety, the restrictions on
non-aggressive solicitation do not appear to raise the same public safety governmental
interest. Business owners and residents simply not liking panhandlers in acknowledged
public areas does not rise to a significant governmental interest. While the ordinance

ORDER - 11

does leave open the ability to sit or stand passively in a very limited public area with a
sign requesting money or property, this is not an ample alternative channel for
communication of the information.
Having found portions of the ordinance to be content based, the City has failed to
carry its burden for most of the regulation in providing evidence that there is a
compelling governmental interest that can only be achieved by limiting solicitation speech
in the manner set forth in the ordinance. The City must do more than identify interests, it
must produce “tangible evidence that speech-restrictive regulations are necessary to
advance the proffered interests. . . .” Edwards v. City of Coeur d’Alene, 262 F.3d 856,
863 (9th Cir. 2001). Further, under the strict scrutiny standard, the City has not carried its
burden in establishing the restricted areas (which for example are many in the Downtown
corridor) are the least restrictive means at achieving the governmental interest. The Court
finds that Plaintiffs have established a likelihood of success on the merits on many of the
sections of the ordinance. Specifically, as to Sections 1., B., 2-6 and 9-11, the Plaintiffs
have established a likelihood of success on the merits.
However, the ordinance at issue contains a severability clause. Sec. 2. Therefore,
the Court can uphold portions of the ordinance while granting an injunction on other
portions of the ordinance. Because the Plaintiffs are not challenging the aggressive
solicitation portion of the ordinance and the City has shown that definition in the
regulation reasonably limits what can be determined to be aggressive solicitation, the

ORDER - 12

Court finds the City has met the requirements for a time, place and manner restriction on
such behavior and speech. The aggressive solicitation prohibition in the ordinance
appears likely to survive a constitutional challenge since it is related to the safety and
protection of its citizens. The Court will therefore not enjoin enforcement of Sec. 1., B.,
1 at this time.
In reviewing the other acts prohibited by the ordinance, the Court the finds the City
has carried its burden at this stage that there is a substantial and compelling governmental
interest in traffic safety and that restricting solicitation of donations where the solicitor
has to step into the roadway or parkway to accept the donation in Sec. 1., B., 8 is likely to
survive a constitutional challenge. “Promoting traffic safety is undeniably a substantial
governmental interest.” See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08
(1981). It is unlikely a municipality wants people soliciting for any purpose in a roadway.
This creates a danger to the individual as well as to the operators of vehicles. It is not the
nature of the speech that causes the violation of the ordinance but the physical location of
the person who is soliciting that creates a prohibited act. Because it is possible for this
portion of the ordinance to be interpreted as Constitutional, this portion of the ordinance
will not be enjoined at this stage in the litigation.
The parties did not provide specific evidence or argument regarding the restriction
of solicitations on public transportation such as a city bus. Unlike a city sidewalk, park,
or plaza area it is much more difficult for a person to avoid unwanted solicitations while

ORDER - 13

riding public transportation. Whether this difficulty to avoid the solicitation rises to an
appropriate governmental interest or if another governmental interest is at issue with
public transportation is a question for another day. Since neither party addressed whether
or not public transportation meets the requirements for a “traditional public forum,” and
in an abundance of caution regarding not circumscribing an individual’s First
Amendment right without the City carrying its burden to restrict the same, the Court will
enjoin the enforcement of this portion of the ordinance at this stage of the litigation. The
parties are directed to file further briefing on this issue with the Court.
The same is true as to the ordinance’s restriction of solicitation on private property,
including private property open to the public, where the requisite signs are posted and/or
notice is given to the solicitor. Sec. 1, B., 7. The Court is concerned that the ordinance is
ambiguous as to what “private property open to the public” is and whether or not it is a
traditional public forum. As such, the Court finds the City has not carried its burden at
this stage as to the private property restriction for properties open to the public. For this
reason, the Court will also enjoin this section of the ordinance, Sec. 1, B., 7, as it applies
to private property open to the public. If the parties choose to do so, they may file further
briefing on this section, with citations to authority, asking the Court to consider lifting the
injunction. The Court will not, however, enjoin any restriction under the ordinance to the
extent it applies to solicitations on private properties that are not open to the public. Such
properties are clearly not public forums and the owners of non-public private property

ORDER - 14

may lawfully restrict solicitation upon their property.

3. Irreparable Harm
“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Associated Press v. Otter, 682 F.3d 821,
826 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). “A chilling of the
exercise of First Amendment rights is, itself, a constitutionally sufficient injury.”
Libertarian Party of Los Angeles County v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013).
Because the enforcement of sections 1., B., 2-6 and 9-11 could have a chilling effect on
the First Amendment rights of Plaintiffs and others, the Court finds Plaintiffs have
established irreparable harm if the Court does not enjoin the enforcement of certain
sections of ORD 34-13.

4. Balance of Equities
The Court finds the balance of equities tips in favor of Plaintiffs as the City has
failed to carry its burden to set forth substantial or compelling interests it is achieving
through the restrictions on freedom of speech.

5. Public Interest
The Constitution protects the rights of all citizens. Freedom of speech may be the

ORDER - 15

most important right to protect in order to maintain our republic. The Court is mindful
that citizens asking or even begging other citizens for money can make the person being
asked feel uncomfortable and imposed upon. But in public places, all citizens must
tolerate speech they don’t agree with, find to be a nuisance, insulting or outrageous. See
Scheneck v. Pro-Choice Network of Western New York, 519 U.S. 357, 383 (1997). In
Berger, the en banc Ninth Circuit panel found “it is unlikely the City’s asserted interest in
reducing obnoxious behavior” and “deterring harassment” could ever be compelling
enough to survive First Amendment scrutiny. Berger, 569 F.3d at 1053, 1041.
Certainly, the First Amendment can lead to public inconvenience and annoyance,
but such is a minor price to pay when the non-aggressive solicitations at issue can easily
be ignored or avoided. The public’s interest in restricting a person from asking for money
in a non-aggressive manner does not outweigh a person’s right to make a request for a
charitable contribution.
CONCLUSION
The Court finds Plaintiffs have standing to bring this facial and overbreadth
challenge to ORD 34-13. The Court also finds Plaintiffs have satisfied the requirements
for the issuance of a preliminary injunction on portions of ORD 34-13. The Court will
enjoin the enforcement of certain portions of the ordinance to return to the status quo that
was in effect prior to the effective date of the ordinance so that the merits of the legal
issues can be addressed on their merits. The injunction on portions of the ordinance shall

ORDER - 16

remain in place pending a final resolution on the merits of this litigation or the Court
revises its position based on further briefing submitted by the parties. The Court will also
grant Plaintiffs request to waive the bond requirement of Fed. R. Civ. P. 65(c) .

ORDER
IT IS ORDERED:
1. Plaintiffs’ Motion for Preliminary Injunction (Dkt. 4) is GRANTED IN PART
AND DENIED IN PART. Consistent with this Memorandum Decision and Order, the
City of Boise is ENJOINED from enforcing as “Prohibited Acts” Sections 1., B., 2 - 7,
and 9-11 of City of Boise Ordinance NO. ORD-34-13. Plaintiffs are not required to post
a security bond. The injunction shall remain in place until further order of this Court.
The Court will calendar a scheduling conference to set additional briefing deadlines and a
case management order in this case.
2. Plaintiffs’ Renewed Request for Expedited Consideration (Dkt. 16) is DENIED
AS MOOT.
DATED: January 2, 2014

Honorable Edward J. Lodge
U. S. District Judge

ORDER - 17