I. INTRODUCTION

As in the trial court below, Defendants have quietly but entirely conceded several key points: (1) that from December 1, 1999, to December 3, 1999, all form of protest was completely banned in the core of downtown Seattle, (2) that the ban was imposed solely because Defendants were worried there might be some violence, (3) that there was no violence occurring in downtown Seattle at the time the ban was imposed on the morning of December 1, 1999, and (4) that at the same time protest was banned, Defendants allowed virtually all others engaging in an approved form of speech into the area of the ban (the “No-Protest Zone”), including Christmas shoppers and the delegates of the World Trade Organization (the “WTO”), whose viewpoints the protesters opposed.

Instead of addressing these undisputed facts, Defendants paint a picture of Seattle on November 30, 1999, as engulfed in unmitigated violence, a picture that depends on overemphasis of discrete incidents. Response Brief (“Opp.”) at 3-12. In fact, as pointed out in the opening brief at pages 5-6 and elsewhere, Defendants have admitted the protests were predominantly peaceful. (E.g., ER 286-87, 366.) Even the Seattle Police Department reported “most of [the protesters] were non-violent.” (ER 122.) The record shows that the situation was not nearly as dire as Defendants contend. At a minimum, there is an issue of fact that should have prevented the district court from declaring that the No-Protest Zone was necessary for safety and narrowly tailored to protect that interest.

Nor can Defendants point to evidence that any emergency continued in the Zone such that it was necessary to keep the Zone intact. While they create the illusion was violence unchecked on December 1 and 2, a close examination of their descriptions and the portions of the record they cite reveals that any violence was extremely limited and occurred almost entirely outside the Zone. Opp. at 10-12.

In addition to distorting the facts, and in the face of the indistinguishable case of Collins v. Jordan, 110 F.3d 1363 (9thCir. 1997), Defendants attempt to convince this Court to adopt an “emergency test” that has never been followed by any court and would invite abuse by municipalities seeking to rid themselves of “undesirable speakers.”

Defendants also assert that absent their proposed test, their ban on speech was a reasonable time, place, and manner restriction. However, Defendants’ ban on protest discriminated on the basis of content and viewpoint, was not narrowly tailored, and foreclosed on all reasonable avenues of communication.

Defendants also claim, without citing to any relevant evidence, that Plaintiffs failed to establish as a matter of law that the No-Protest Zone was a policy that can subject the City of Seattle to liability under § 1983. However, Plaintiffs carried their burden of proof and Defendants have failed to rebut that showing.

Contrary to Defendant’s arguments, the district court’s ruling on class certification and another order granting summary judgment to Defendants Schell and Stamper are properly before this Court, as Plaintiffs listed those orders in the Notice of Appeal. (ER 777-78.)

II. ARGUMENT

A. The No-Protest-Zone Policies Are Presumptively Unconstitutional

Defendants do not dispute that their No-Protest-Zone policies are subject to heightened, exacting scrutiny because they banned political speech on public streets and sidewalks. Defendants do contend briefly that their policies cannot be considered prior restraints because they did not prevent speech from occurring. Opp. at 41. However, Defendants do not dispute that under their policies, all protest was banned in downtown Seattle for three days. This Court has held that a restriction banning speakers from a specified area is a prior restraint. See, e.g., United States v. Baugh, 187 F.3d 1037, 1042 (9th Cir. 1999) (order banning protest in Presidio was prior restraint). “[E]njoining or preventing First Amendment activities before demonstrators have acted illegally or before the demonstration poses a clear and present danger is presumptively a First Amendment violation.” Collins, 110 F.3d at 1371 (emphasis added), citing Carroll v. President of Princess Anne, 393 U.S. 175, 180-81 (1968). The No-Protest Zone was a presumptively unconstitutional prior restraint.

B. The District Court and Defendants Have Not Distinguished Collins

Defendants cannot distinguish Collins. The strikingly similar facts of Collins are outlined in the Opening Brief at pages 14 to 16. To restate the holding of Collins, it is “clear … that the occurrence of limited violence and disorder … is not a justification for banning all demonstrations, peaceful or otherwise, on the immediately following day.” 110 F.3d at 1372.

The district court attempted to distinguish Collins because it believed “the violence and riots were continuing unabated in Seattle at the time the defendants … implemented the Zone.” (ER 741.) Defendants have disowned this basis for distinguishing Collins, because the record shows the opposite was true – that the violence had completely subsided at the time the Zone was implemented. (E.g., ER 334, 435, 439.)

To escape this flaw in the district court’s order, Defendants claim Collins is inapposite because the restricted area in Collins was larger. The area at issue in Collins did encompass all of San Francisco. Yet, in this case, the No-Protest Zone blanketed as many as 25 square blocks, and was never smaller than 16 square blocks. (ER 415, 419.)[1] Defendants attempt to shrink the Zone by arguing most of the intersections inside the Zone were “within one block of the zone boundaries.” Opp. at 43. This ignores that there were more than 30 blocks’ worth of sidewalks in the Zone that were not within a block of the perimeter. (ER 415.)

However, it does not matter whether the Zone was 25 blocks or 100 blocks; it violated clearly established law. Collins was not decided on the basis of the size of the area involved, but in accordance with the principle that a city cannot ban all protests simply because officials are concerned about a repeat of past violent protests. See 110 F.3d at 1372. See also, e.g., Baugh, 187 F.3d at 1043-44 (“a complete ban on First Amendment activity cannot be justified simply because past similar activity led to violence”); Bay Area Peace Navy v. United States, 914 F.2d 1224, 1228 (9th Cir. 1990) (government “is not free to foreclose upon expressive activity in public areas on mere speculation about danger.”). Yet that is precisely what happened here.

Defendants also attempt to distinguish Collins by claiming the violence in Collins was on a smaller scale. There is no basis for distinguishing Collins on that ground. San Francisco was host to “ [a] number of peaceful … demonstrations” in addition to a “a large not-so-peaceful demonstration … that led to a number of violent incidents …” Id. at 1367. In addition to the violence associated with the protests, there were “isolated incidents of looting and vandalism as well.” Id. at 1372. These same words could be used to describe the facts of this case, where on November 30, 1999, there were large, predominantly peaceful demonstrations accompanied by isolated incidents of violence and vandalism. (See, e.g., ER 122, 260, 286-87, 366, 397, 528.)

Defendants also claim Collins should be distinguished because in this case local police were allegedly “overwhelmed.” Yet the violence was neither widespread nor continuing when the No-Protest Zone was implemented on the morning of December 1, 1999. The downtown was so calm that Christmas shoppers were allowed entry. (See, e.g., ER 310-16.) There is no evidence that the Zone was suffering ongoing violence or vandalism – only that Defendants feared there might be unrest. Under Collins, Baugh, and Bay Area Peace Navy, such a fear does not justify a ban on all protest.

As this Court held in Collins:

the proper response to potential and actual violence is for the government to ensure an adequate police presence and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure.

Id. at 1372, citing Cox v. Louisiana, 379 U.S. 536, 551 (1965) and Kunz v. New York, 340 U.S. 290, 294-95 (1951). Defendants knew before the WTO arrived that there would be tens of thousands of protesters in the downtown area and spent months planning for the event. (E.g., ER 76-78, 108-09.) The only logical inference is that if they were overwhelmed, it was because they failed to prepare properly. (ER 560-66 (expert opinion)).

Further, on December 1, 1999, the State, nearby counties and cities, and the National Guard sent hundreds of officers to assist. (ER 487 (more than 800)). There was no attempt to use these resources to accommodate protest. Rather, Defendants used 425 National Guardsmen to maintain the boundaries of the Zone. (ER 331.) It would be a travesty to allow Defendants to skirt the First Amendment because they were allegedly “overwhlelmed” despite having months to prepare and the assistance of hundreds from other jurisdictions. Such a ruling would reward poor planning and encourage municipalities to cry “overwhelmed” at the first sight of mass protest.

Defendants also argue Collins cannot control because it addressed qualified immunity. This is not so. Collins held that it was clearly established that the policy the officer was enforcing was a flat violation of the First Amendment. See 110 F.3d at 1372-73. Collins is precedent not only for the proposition that an officer will not be immune from liability for enforcing a ban on protest based on prior violence, but also for the proposition that the ban itself is unconstitutional. See, e.g., Service Employee Int’l Union, Local 660 v. City of Los Angeles, 114 F. Supp. 2d 966, 971-72 (C.D. Cal. 2000) (invalidating policy under Collins).

Defendants also suggest that if the Court were to follow Collins, it would be holding “that a restriction on speech is warranted only if violence has erupted and is ongoing.” Opp. at 25. That is not Plaintiffs-Appellants’ position, nor is it true. Defendants could have enforced generally applicable criminal laws and taken reasonable and narrowly tailored means of protecting the WTO delegates. They did not do so.

C. Defendants’ Asserted “Emergency Test” Does Not Exist

Defendants attempt to convince this Court to adopt a radical “emergency test” that would allow a city to declare a state of emergency and then selectively ban protest in the city, provided that its officers acted in “good faith” and with “some factual basis.” Opp. at 17. Not only does such a test not exist, the cases Defendants rely on are distinguishable and the proposed test would be a blunt instrument for the destruction of basic rights.

There is no case in which a court has allowed a government to selectively ban protest because it had declared a “state of emergency.” Defendants rely on three cases from other jurisdictions holding only that a nighttime curfew applicable to all people may be constitutionally permissible in extreme cases. See United States v. Chalk, 441 F.2d 1277, 1282-83 (4th Cir. 1971) (nondiscriminatory nighttime-only curfew following race riot); Smith v. Avino, 91 F.3d 105, 109-10 (11th Cir. 1996) (nondiscriminatory nighttime-only curfew in wake of Hurricane Andrew); Moorhead v. Farrelly, 723 F. Supp. 1109, 1114 (D. V.I. 1989) (nondiscriminatory nighttime-only curfew in wake of Hurricane Hugo). Defendants seek to extend these cases to selective daylight bans on protest, yet this Court has already refused to do so:

the fact that authority exists to ban everyone from using the streets during nighttime hours does not justify a selective ban on specific First Amendment conduct during daylight hours. Proclaiming a curfew that requires people to remain at home during certain hours is obviously an entirely different matter from prohibiting only specific First Amendment activities during those or other hours. The latter action is far more directly restrictive of the right of free expression.

Collins, 110 F.3d at 1374 (emphasis added).

Not even Chalk, on which Defendants heavily rely, suggests its reasoning should extend to this case. The Chalk court relied on the fact that the curfew was (1) “in effect city-wide,” (2) not discriminatory, and (3) “applied only at night.” 441 F.2d at 1283. The court found it especially persuasive that the curfew was limited to nighttime, citing a study finding violence is most likely to occur at night. Id.

This Court has never even gone as far as the Fourth Circuit in Chalk, and for good reason. While Defendants downplay the cases cited in the opening brief (at 38-39) regarding emergency powers, there is no denying the principle for which those cases stand: that “emergency powers would tend to kindle emergencies.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J., concurring). Defendants ask this Court for an extraordinary and unprecedented power to selectively prohibit protest whenever there is a fear it might be violent. Such a power would only invite abuse; “the government’s restriction of first amendment expression in public areas would become essentially unreviewable.” Bay Area Peace Navy, 914 F.2d at 1228.

Defendants claim rejection of their “emergency test” would leave them without “authority to regulate law-breaking mobs.” Opp. at 20. Wrong. With or without the “emergency test,” Defendants can quell riots and arrest those engaged in violence. What they cannot do is stamp out all protest simply because they have declared a “state of emergency.”

D. Plaintiffs Have Not Conceded That The “Emergency” Was As Serious As Defendants Claim

Defendants contend that Plaintiffs, by pointing to evidence that the “emergency” was not as severe as Defendants contend, contradict a position assumed in the district court. Opp. at 23. Plaintiffs’ position below was clearly stated: “Plaintiffs do not challenge the City’s decision to declare a state of emergency (although they may present evidence … that the emergency was not as severe as claimed … ).” (ER 616.) Plaintiffs have not taken a contrary position before this Court.

E. Defendants’ No-Protest-Zone Policies Were Not Reasonable Time, Place, Or Manner Restrictions, Either Facially Or As Applied

Defendants argue that even if the “emergency test” does not exist, they satisfy the standard test for time, place, and manner restrictions. However, the No-Protest-Zone policies were not content-neutral, they were not narrowly tailored, and they did not leave open adequate alternative avenues of communication.

1. Order No. 3 Discriminated on the Basis of Content and Viewpoint

Defendants have conflated Plaintiffs’ facial and as-applied challenges to the content-discriminatory nature of Order No. 3. However, Plaintiffs challenge the Order on both bases.

a. Order No. 3 is facially discriminatory

Defendants claim that because Order No. 3 did not state “all protest shall be banned in downtown Seattle,” it must be considered content-neutral. That is not so. Order No. 3, on its face, allowed into the No-Protest Zone everyone who would normally be found in downtown – including anyone “necessary to the operation of … businesses” – plus WTO delegates and the media. (ER 413-14, 417-18, 421-22.) Those who drafted this Order knew exactly what it meant: that while shoppers, business owners, and WTO delegates had free access to downtown Seattle, thousands of protesters who lived in Seattle but did not work or shop downtown, and thousands of protesters from outside Seattle, would be excluded. Mayor Schell admitted as much. (ER 308-09.)

Defendants unpersuasively draw parallels to Hill v. Colorado, 530 U.S. 703 (2000). In Hill, the Supreme Court considered a statute that prohibited all people from exercising any First Amendment rights within 8 feet of a person entering an abortion clinic. Id. at 708-09. The Supreme Court concluded the statute was content-neutral because it barred all First Amendment activity in that small area. Id. at 720-21. Hill does not control here, where Order No. 3 explicitly allowed speech in the Zone by those favored by the City: WTO delegates, the media, business owners, and shoppers – and disallowed any speech by a “protester.”

Defendants argue Plaintiffs have not shown that those allowed into the Zone engaged in speech. Opp. at 29. This contradicts Defendants’ admission that Order No. 3 promoted the First Amendment rights of WTO delegates. Opp. at 40 (Zone protected “the right [of non-protesters] to engage in free speech and assembly.”) See also ER 696, lines 3-4 (brief below); ER 739 (district court’s order). The delegates clearly engaged in speech – that was the entire point of their meetings.

It is also undisputed that Order No. 3 allowed the media into the Zone. This was a selective protection of a First Amendment right. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577-78 (1980) (media has First Amendment right to be present in public areas).

In addition, Order No. 3 allowed commercial speech to continue unabated. (ER 310-313.) Defendants argue that commercial transactions do not involve speech, as if the business owners and shoppers allowed into the Zone could conduct their transactions in complete silence. This argument flies in the face of common sense. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772 (1976) (commercial speech is speech that “propose[s] a commercial transaction”); Nordyke v. County of Santa Clara, 933 F. Supp. 903, 906 (N.D. Cal. 1996) (“[a] gun may not be sold in silence, without any exchange of verbal communication whatsoever.”).

Thus, Order No. 3 specifically allowed certain types of protected speech, while prohibiting protest. Hill does not permit such a policy, and the other cases Defendants cite are similarly distinguishable because the policies at issue applied equally to all First Amendment activity. See Turner Broadcasting Sys. v. FCC, 512 U.S. 622, 630-34 (1994) (“must carry” rule applied to all cable operators); Ward v. Rock against Racism, 491 U.S. 781, 786-87 (1989) (requirements applied to all); Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 791 (1984) (same); Heffron v. Int’ l Socy. for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981) (applied “evenhandedly to all”).

This case is similar to Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 968 (9th Cir. 2002), in which a city banned clothing indicating affiliation with “biker organizations.” Although the ban did not explicitly regulate speech, it was a proxy for viewpoint discrimination; it “singled out bikers … for the message their clothing is presumed to convey.” Id. at 971. Similarly, those drafting Order No. 3 knew all protesters would be subject to arrest. As in Sammartano, once one considers what Order No. 3 said on its face in the factual context in which it was adopted, it is evident that Order No. 3, on its face, selectively excluded the voice of dissent. See also, e.g., Tucker v. California Dept. of Ed., 97 F.3d 1204, 1215 (9th Cir. 1996) (ban on “religious advocacy” is viewpoint-based; “it is not reasonable to allow employees to post … on all sorts of subjects, and forbid only the posting of religious information”).

Order No. 3 also permitted commercial speech at the same time, and in the same place, that it prohibited political speech, by allowing businesses and shoppers to operate normally in an area where it banned protest. This violated basic principles outlined in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 (1981), where the court held unconstitutional an ordinance banning noncommercial billboards in certain areas but allowing commercial billboards in those same areas. Id. at 512-17. This “invert[ed] [the First Amendment] by affording a greater degree of protection to commercial than noncommercial speech.” Id. at 513. The same is true here.

Defendants point out that Metromedia involved billboards rather than a ban on protest. Yet no matter the factual difference, the logic of Metromedia rings true; government cannot allow unfettered commercial speech where it has banned noncommercial speech. 452 U.S. at 512-17. This is not to say (as Defendants suggest) that noncommercial speech cannot be regulated where commercial speech occurs, but rather that a city cannot simultaneously allow all commercial speech and prohibit all political speech. Order No. 3 discriminated on the basis of content and viewpoint.

b. As applied, Order No. 3 was not content-neutral

Defendants have not addressed Plaintiffs’ argument that Order No. 3 was also discriminatory as applied. It is undisputed Order No. 3 was applied to selectively exclude all protesters. (E.g., ER 272, 337, 404, 430, 435, 439, 445, 450, 461-64, 466.) It is also undisputed that those allowed into the No-Protest Zone included others exercising different First Amendment rights, including WTO delegates, shoppers, and the media. The result was, among other things, a mass arrest of hundreds of peaceful protesters in a public park inside the No-Protest Zone (ER 261-63), police harassment of downtown workers who attempted to enter the Zone with signs (ER 569-71, 575-77), and confiscation of anti-WTO stickers and signs (ER 572-74, 578-82). Even if Order No. 3 did not prohibit protest on its face, it clearly did so as applied, and therefore as applied it discriminated on the basis of content and viewpoint for the reasons discussed above.

2. Defendants’ stated interests do not justify banning all protest

Defendants contend they were justified in erecting the No-Protest Zone because they have an interest in (1) preserving safe streets, and (2) protecting the interest of non-protesters in being “left alone.” Opp. at 33-34. These interests do not justify blunt eradications of speech such as the No-Protest Zone.

As for the interest in safe streets, Plaintiffs have never disputed Defendants could enforce its criminal laws in order to protect citizens or WTO delegates. However, the stated interest in safety can never justify a wholesale ban on free speech simply because a government is concerned that some protests might turn violent. See Baugh and Collins.

As for Defendants’ stated interest in protecting the “rights” of delegates and others to be “left alone,” no Defendant has ever suggested those rights played any role in the adoption of the No-Protest Zone. Cf., e.g., ER 308-09, 329-33 (safety and security were the reasons).

In Hill, supra, Defendants’ primary case, the court did recognize an individual’s “interest” in being left alone. See 530 U.S. at 717 n. 24 (the interest is not a “right.”) Cf. Boos v. Barry, 485 U.S. 312, 322 (1988) (“citizens must tolerate insulting, and even outrageous speech, in order to provide ‘adequate “breathing space” to the freedoms protected by the First Amendment.”’) (citation omitted). However, that interest “must be placed on the scales with the right of others to communicate” and “the right to persuade.” 530 U.S. at 717-18 (emphasis added) (citations omitted). The court found that those competing rights and interests had been properly balanced in that case in part because the 8-foot “buffer” in that case allowed communication “at a normal conversational distance” and allowed for leafletting. Id. at 726-27. The court’s decision was also strongly influenced by the fact that the statute addressed health clinics, one of a handful of areas requiring “unique” protections. Id. at 728.

There was no “unique” area in this case (only public streets and sidewalks), and no attempt to balance the interests of the WTO delegates against the “right of every citizen to ‘reach the minds of willing listeners and … win their attention.’” Id. at 728, quoting Heffron, supra. Defendants insulated the delegates from the voice of opposition. There was no attempt to accommodate both groups. The asserted interest in being “let alone” has only rarely been used to justify a restriction on speech, and no court has held that a municipality could declare its downtown off-limits to protest simply because the targets of the protest did not want to hear it.

The only other case Defendants cite on this point is inapposite. In American Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184 (1921), the Court considered an injunction barring violent or intimidating picketing near a plant. The Court, without addressing the First Amendment, held the injunction partially violated a labor statute. Id. at 201-13. This case has no bearing on the First Amendment issues presented by this case.

Defendants also suggest, without elaboration, that the No-Protest Zone was adopted to protect “the right to familial autonomy,” the right to work, and the right travel. Opp. at 40. Defendants offer no factual or legal support for this proposition, citing only to American Steel and a case establishing a right to use contraception, Carey v. Population Svs. Int’l, 431 U.S. 678 (1977). These cases do not support Defendants’ argument.

3. The policies were not narrowly tailored

Defendants have effectively conceded that if their policies regulated speech based on content, they fail the applicable test: that the No-Protest Zone was the “least restrictive means to further a compelling interest.” S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1146 (9th Cir. 1998).[2] Instead, they argue they satisfy the standard for content-neutral regulation: that it “is not ‘substantially broader than necessary to achieve the government’s interest.’” Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1045 (9th Cir. 2002) (citation omitted). However, they fail this “narrowly tailored” test.

Defendants’ entire argument for why the No-Protest Zone was narrowly tailored is that it was “temporary” and “confined to a small area.” Opp. at 36, 40. Yet it is beyond dispute that Defendants banned all protest for 3 days in an area as large as 25 square blocks. It is also undisputed that this area is Seattle’s core, where one can find, among other things, a public park (ER 262) and “a number of … major retailer stores.” (ER 311.) And as Defendants admit, the Zone included every place WTO delegates were likely to be found – their hotel rooms, their conference centers, and everywhere inbetween. Opp. at 10.

There is no evidence Defendants attempted to accommodate peaceful protest. They in fact rejected that possibility. (ER 327.) On December 1, 1999, armed with 800 additional officers (ER 487), they strangled protest in the downtown area rather than enforce existing laws.

The No-Protest Zone was not the only option. There were other avenues available, including busing delegates and using underground walkways. (ER 566-67.) Moreover, the protest restrictions could have been easily avoided by anyone seeking to do serious harm by simply posing as a downtown employee. (ER 567.) These alternatives and possibilities were never considered; it was more convenient to exclude protesters.

Defendants nonetheless argue that the Zone was narrowly tailored because at some points the Zone’s perimeter was across the street from a hotel where some delegates stayed. Opp. at 37. However, the Zone’s perimeter was that close only at certain parts of the hotels, thus granting delegates exits that were even farther from the Zone’s perimeter. (ER 415.) In addition, the suggestion that protesters could have protested on the perimeter is pure fiction. Not only were protesters harassed at the perimeter (ER 569-71, 575-77), even those engaging in peaceful protest far outside the Zone were arrested. (ER 527-36.) The presence of hundreds of police on the perimeter was a serious deterrent to any attempts to protest there, and Defendants have offered no evidence that protesters lined the perimeter or that they would have been allowed to do so.

Even if the facts were as simple as Defendants claim, the protesters still would have been, at a minimum, across the street from the delegates during the brief time they entered or exited their hotels. This is not sufficient. In Hill, the Court upheld the 8-foot “buffer” because at that distance, a person can still “communicate at a normal conversational distance.” 530 U.S. at 726-27. The Court contrasted that “buffer” with the 15-foot “buffer” in Schenck v. Pro Choice Network, 519 U.S. 357, 377 (1997) that was held to be too great for normal conversation. The distance in this case was well beyond conversational range.

There was also no way for a protester, should she have waited at the perimeter for a delegate who might come by, to distribute leaflets from across the street. Even a distance of 15 feet renders leafletting ineffective. Schenck, 519 U.S. at 377. The Hill court was particularly concerned about the right to leaflet from just 8 feet but ultimately found that “buffer” constitutional because protesters could still stand in a person’s line of vision and offer the leaflet. 530 U.S. at 727. That option was not available where the Zone imposed a distance of at least a street’s width.[3]

There was no attempt by Defendants to tailor the Zone to accomplish their stated goals of safety and security without obliterating the protesters’ rights to leaflet, protest, and converse with WTO delegates and the public. Even if the record does not establish that the Zone was not narrowly tailored, at a minimum there are genuine issues of material fact concerning the scope of the Zone, and the nature of the “emergency” that led to its adoption, that should have prevented the district court from ruling in Defendants’ favor.

4. The policies did not leave open alternative avenues

Defendants also claim the No-Protest Zone left open adequate alternative avenues for protest. Their arguments fall apart on close inspection.

Defendants’ primary argument is that protesters might have been able to protest across the street from where a delegate entered or exited a hotel. The shortcomings of this argument are discussed above in Section II.D.3.

Defendants also argue the media gave the protesters a method to reach WTO delegates. Opp. at 37. If media coverage was sufficient for First Amendment purposes, no time, place, or manner restriction could ever be invalidated for failing to leave open alternatives for communication. Media coverage simply does not adequately protect the right to “reach the minds of willing listeners.” Heffen, 452 U.S. at 655.

Nor does Defendants’ suggestion that protesters could have used “amplification equipment” to reach the delegates in their rooms constitute an adequate alternative. If the only avenue for communication was through amplification, the only ones who could communicate would be those with amplifiers. See Bay Area Peace Navy, 914 F.2d at 1229 n.3 (alternative not sufficient if it requires special equipment). Even then, they would not be able to carry on a conversation with their intended audience.

Defendants also claim the distance between the delegates and any protesters who dared to line the perimeter might have made signs easier to see and made it “easier for law-abiding demonstrators to convey their messages.” Opp. at 37-38. As a matter of common knowledge, a sign of average, reasonable size cannot be easily read from across the street, much less from farther away. Nor can Defendants seriously contend that it that it is easier to communicate with a person from across the street – or farther – than it is from a normal conversational distance. Defendants rely on Hill, where the court suggested that signs and oral communication might be more effective from 8 feet away than they would be from directly in a person’s face. 530 U.S. at 726. That may be true at 8 feet; it is not true from across the street or farther.

Defendants fail to distinguish cases cited by Plaintiffs. Opening Brief at 33-36. As for Baugh, all Defendants say is that the 175 yards at issue in that case was farther than the width of a street. However, the exact distance is not the issue; the issue is whether a speaker can reach her “intended audience” from the imposed distance. 187 F.3d at 1044. The Zone ensured protesters could not.

Defendants also inaccurately state that the 75-yard barrier at issue in Bay Area Peace Navy was unconstitutional because there had been no previous breaches of security. However, this Court found all adequate means of communication were closed because (1) demonstrations are ineffective from 75 yards, (2) leafletting is not an option where a protester cannot approach the audience, and (3) amplification required special equipment. 914 F.2d at 1229. The same is true here.

The Zone did not leave open alternatives for communication. At a minimum, there are issues of fact that precluded a ruling in Defendants’ favor.

F. Defendants Have Not Shown That Griefen Governs

Defendants continue to argue that United States v. Griefen, 200 F.3d 1256 (9th Cir. 2000), cert. denied, 530 U.S. 1234 (2000) is more similar to this case than Collins. Their unpersuasive arguments are already addressed in large part in the opening brief at pages 19 to 21.

Their new argument is that the area in Griefen “dwarfs” the No-Protest Zone because the narrow restricted corridor in Griefen extended along five forest service roads. Opp. at 47. Yet while the total square footage at issue in Griefen was greater than that of the No-Protest Zone, the Zone was several times larger from one side to the other (several blocks) than the Griefen area was (300 feet). Nor can it be overlooked that Defendants imposed their ban on the public streets and sidewalks in a major city, while the Griefen ban concerned a remote public forest.

In their attempts to argue Griefen controls, Defendants in fact make it clear Collins controls, as they admit Order No. 3 was adopted based on “what the conditions were before the order was entered.” Opp. at 48. This undermines their argument that the Zone was permissible because Griefen allows action to close “a street engulfed in riot or an unlawful assembly.” 200 F. 3d at 1263. It should be clear from Defendants’ argument and failure to rebut Plaintiffs’ evidence (see, e.g., Opening Brief at 18-19) that downtown Seattle was not engulfed in riot or unlawful assembly when the Zone went into effect.

G. Defendants Have Failed To Raise An Issue Of Material Fact As To The Alleged Lack Of A Policy

Defendants argue that reversal of the denial of Plaintiffs’ motion for partial summary judgment would be improper because of an unspecified issue of fact as to whether an official policy existed for the purposes of liability under § 1983. However, there is no issue of material fact.

A municipality “ can be sued directly under § 1983 … where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement … or decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). Under Monell, a policy will give rise to liability both where it is promulgated by the person with the final decision-making authority for the particular policy involved and where the policy was adopted and promulgated by a person or persons who have been delegated the authority to create municipal policy. See Pembaur v. Cincinnati, 475 U.S. 469, 483 n.12 (1986); St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).

Defendants suggest – without any citation to the record – that the No-Protest-Zone policies do not satisfy this standard because they were adopted by “a few, random officers [who] may have acted inappropriately.” Opp. at 51. The record is to the contrary. The No-Protest Zone was not the brainchild of rogue officers; it was the result of policy set by Mayor Schell and his delegates. On November 30, 1999, Mayor Schell met with, among others, Assistant Chief Ed Joiner, the officer in charge of developing WTO enforcement policy. The mayor decided to declare a state of emergency and adopt Order No. 3. (ER 288, 291-95.) It was known and accepted by Mayor Schell that this meant protesters would be excluded from downtown Seattle for three days simply because they were protesters. (ER 275, 308-09, 311-16.) Those drafting Order No. 3 considered, but rejected, the possibility of permitting peaceful protest. (ER 327.) Mayor Schell then delegated the authority for deciding final details to Chief Joiner and the police department. (ER 275-76, 293, 314-16.)

From the outset, it was clear that the policy was to exclude all protesters. In a CNN broadcast, Chief Joiner unequivocally stated that “anyone who goes into that area to protest will be arrested immediately.” (ER 272.) Chief Joiner and other police supervisors issued numerous orders that protesters entering the Zone were subject to arrest. (ER 404, 430, 435, 439, 445, 450.) These orders were given not only to Seattle officers but also to officers of other agencies. (ER 337, 461-64, 466.) These officers implemented the Zone as ordered, arresting protesters who entered the Zone and stopping individuals attempting to carry protest signs into the Zone. (ER 261-63, 500-05, 508-11, 517-20, 572-74, 578-82.) This was a well-coordinated implementation of City policy. Whether one considers the record as establishing that Mayor Schell promulgated the policy, or whether it was promulgated by Chief Joiner and the police department under Schell’s delegation, the policy satisfies Monell.

Defendants have not disputed these facts. Plaintiffs carried their burden on the issue of Monell liability, and Defendants did not respond with contrary evidence. Plaintiffs are therefore entitled to summary judgment on this issue. See, e.g., Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

Defendants nonetheless argue Plaintiffs are not entitled to summary judgment because they believe there is an issue of fact as to whether Mayor Schell intended to stifle speech. Opp. at 52-53. However, Mayor Schell’s intent is irrelevant; Monell focuses solely on whether the policy existed and whether it was an official policy; this does not require inquiry into intent. See, e.g., Monell, 436 U.S. at 690 (describing inquiry). In any event, as to intent, Mayor Schell adopted Order No. 3 with knowledge that it would result in the exclusion of protesters (ER 275, 308-09) and intended that pursuant to the policy, a peaceful protester could be arrested solely for being in the Zone. (ER 275.) Defendants’ suggestion that he did not know the consequences of Order No. 3 is false. Plaintiffs were, and are, entitled to summary judgment on this issue.

H. The No-Protest Zone Was Unconstitutionally Overbroad

Defendants’ three challenges to Plaintiffs’ overbreadth argument are all ineffective. Defendants argue Plaintiffs have not demonstrated a policy that could have been overbroad. However, Order No. 3, both on its face and as applied, excluded all protesters from downtown. It is this policy of excluding protesters that was overbroad. Cf. Murphy v. Shaw, 253 F.3d 1151, 1152 (9th Cir. 2001) (recognizing as-applied overbreadth challenge).

Defendants also argue Plaintiffs cannot challenge an ordinance if they engaged in protected expression, citing Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997). However, as Nunez states, a plaintiff who engaged in protected expression can challenge a policy for overbreadth if it ‘“create[s] an unacceptable risk of the suppression of ideas.”’ Id. at 949 (citation omitted). That is Plaintiffs’ challenge – that the protest ban was so broad that it prevented or discouraged any form of protest, even outside the Zone. Even content-neutral policies that close a particular avenue to speech pose a “danger … to the freedom of speech that is readily apparent – by eliminating a common means of speaking, such measures can suppress too much speech.” City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994).

Defendants argue Order No. 3 was not “substantially” overbroad. However, the No-Protest Zone excluded all protesters from the downtown core and anyone else subject to “exception” from Order No. 3. They were excluded without regard to whether they had violated or would violate the law. Thousands were barred from entering the Zone (or arrested for doing so) because Defendants worried some might turn violent.

Hill is distinguishable. The Court held the policy there was not overbroad because everyone entering a health clinic shared the same interests and therefore it was proper to place an 8-foot barrier that applied to everyone. 530 U.S. at 730-31. Here, on the other hand, there was an arbitrary choice as to who should and should not be allowed into the Zone, resulting in a selective yet overbroad exclusion of undesirable voices.

I. This Court Should Reverse All Other District Court Orders That Were Based On The Summary Judgment Orders

According to Defendants, this Court lacks jurisdiction to reverse the January 28, 2002, denial of class certification, and the August 29, 2002, grant of summary judgment in favor of Defendants Schell and Stamper, because “plaintiffs’ Notice of Appeal only discussed the consolidated summary judgment order.” Opp. at 54. This is not true. The Notice of Appeal was clear that Plaintiffs-Appellants sought review of several orders, including the denial of class certification and the August 29, 2002, summary judgment order. (ER 777-78.) A copy of each order was attached to the Notice of Appeal. The same is true of the Civil Appeals Docketing Statement. Thus, Defendants’ argument is groundless.

Defendants also suggest that this Court should affirm the denial of certification on grounds not addressed by the district court, namely that issues common to the class would not predominate over individualized issues. As this Court held in Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997) (quoting Rosetti v. Shalala, 12 F.3d 1216, 1232 (3d Cir. 1993)), an appellate court “‘cannot review [class certification] decisions before they are made,’” because an appellate court cannot review for an abuse of discretion where the trial court has not exercised that discretion. In Wade, the district court denied a class certification without analyzing the criteria under FRCP 23. 118 F.3d at 669. The plaintiffs sought review of that decision but this Court refused to consider issues not addressed by the trial court and remanded for full consideration of class certification. See id. at 670. The same is true here.

III. CONCLUSION

For the reasons stated above and in Plaintiffs’ opening brief, this Court should grant the relief sought by Plaintiffs.

Dated March 20, 2003.

HAGENS BERMAN LLP

Steve W. Berman, WSBA No. 12536

Tyler S. Weaver, WSBA No. 29413

1301 Fifth Avenue, Suite 2900

Seattle, WA 98101

(206) 623-7292

Lead Counsel for Plaintiffs-Appellants

Arthur Bryant

Victoria Ni

TRIAL LAWYERS FOR PUBLIC JUSTICE

One Kaiser Plaza, Suite 275

Oakland, CA 94612-3684

(510) 622-8150

Michael E. Withey

STRITMATTER KESSLER WHELAN WITHEY COLUCCIO

200 Second Avenue West

Seattle, WA 98119-4204

(206) 448-1777

FRED DIAMONDSTONE

Attorney at Law

700 Dexter Horton Bldg

710 Second Ave

Seattle, WA 98104

(206) 568-0082

YVONNE KINOSHITA WARD

Attorney at Law

128 14^th St. S.E.

Auburn, WA 98002

(253) 887-8686

John Muenster

MUENSTER & KOENIG

Wells Fargo Center

999 Third Ave., Suite 4100

Seattle, WA 98104

Benjamin Schwartzman

THE GRANT LAW FIRM

1218 Third Avenue, Suite 1000

Seattle, WA 98101

ERWIN CHEMERINSKY

Professor of Law

Univ. of So. Calif. Law School

University Park

Los Angeles, CA 90089-0071

Counsel for Plaintiffs-Appellants

CERTIFICATE OF COMPLIANCE
PURSUANT TO CIRCUIT RULE 32-1

Case No. 02-36027

I certify that:

Oversize Briefs:

The court granted permission to exceed the length limitations set forth at Fed. R. App. P. 32(a)(7) by an order dated ______________________.

An enlargement of brief size is permissible under Ninth Circuit Rule 28-4.

The brief is

Proportionately spaced, has a typeface of 14 points or more and contains 6981 words

or is

Monospaced, has 10.5 or few characters per inch and contains words or lines of text.

or is

In conformance with the type specifications set forth at Fed. R. App. P. 32(a)(5) and does not exceed pages.

HAGENS BERMAN LLP

Steve W. Berman, WSBA No. 12536

Tyler S. Weaver, WSBA No. 29413

1301 Fifth Avenue, Suite 2900

Seattle, WA 98101

(206) 623-7292

Lead Counsel for Plaintiffs-Appellants

[1] According to Defendants, the size of the Zone at its largest was “approximately .14 square miles.” Opp. at 43. This assertion is unsupported by the record.

[2] Defendants mention this test but their analysis is no different than the analysis offered for the “narrowly tailored” test. Opp. at 39-41. Since Defendants fail to establish the Zone was narrowly tailored, they certainly fail the “least restrictive means” test.

[3] Defendants attempt to distinguish Schenck and other cases on the basis that they addressed injunctions subject to a high standard. However, as the No-Protest Zone was a prior restraint on political speech in a public forum, it is subject to the highest level of scrutiny.