No. 02-36027

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________________________________________________

KENNETH HICKEY, CARROLL JACKSON, and EMILY MALONEY

Plaintiffs,

KENNETH HANKIN, JENNIFER HUDZIEC, STEPHANIE
LANE, DENISE COOPER, and NICOLE PEARSON, on behalf of
themselves and all others similarly situated,

Plaintiffs-Appellants,

v.

THE CITY OF SEATTLE, PAUL SCHELL, and NORMAN STAMPER

Defendants-Appellees.

__________________________________________________

On Appeal from the United States District Court

for the Western District of Washington

The Honorable Barbara J. Rothstein, Presiding

District Court No. C00-1672R

__________________________________________________

PLAINTIFFS-APPELLANTS' OPENING BRIEF

_______________

Steve W. Berman Tyler S. Weaver Hagens Berman LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Tel: (206) 623-7292

Arthur H. Bryant Victoria W. Ni Trial Lawyers for Public Justice One Kaiser Plaza, Suite 275 Oakland, CA 94612 Tel: (510) 622-8150

(additional counsel listed on signature page)

TABLE OF CONTENTS

Page

I.. JURISDICTIONAL STATEMENT 1

II. ISSUES PRESENTED FOR REVIEW 1

III. STATEMENT OF THE CASE..... 2

A.......... Nature of the Case......... 2

B.......... Proceedings and Disposition of the Case......... 3

IV. STATEMENT OF FACTS 5

A.......... “The Vast Majority of Protesters Were Peaceful”......... 5

B.......... The City Responds By Prohibiting All Protests......... 6

1.......... The City Decides To Ban Protesters From the
Downtown Core......... 7

2.......... The Mayor Adopts Order No. 3......... 8

3.......... The Police Implement the No-Protest Zone, Selectively Excluding Protesters......... 9

4.......... The Policy is Enforced as Ordered......... 11

V.. STANDARDS OF REVIEW 12

VI. ARGUMENT 12

A.......... The City’s Policies Prohibited Political Speech in Traditional
Public Fora, Giving Rise to Exacting Scrutiny......... 12

B.......... Precedent from This Court Mandates Reversal of the District
Court’s Summary Judgment Orders......... 14

1.......... Collins v. Jordan Controls the Outcome of this Appeal......... 14

2.......... United States v. Griefen Does Not Trump Collins......... 19

C.......... Defendants’ Policies Constituted a Presumptively
Unconstitutional Prior Restraint......... 22

D.......... The City’s Policies Were Not Reasonable Time, Place,
and Manner Restrictions......... 24

1.......... The Policies Were Not Content-Neutral, Either
Facially or As Applied......... 24

a.......... On Its Face, Order No. 3 Discriminates on
the Basis of Content......... 25

b.......... Order No. 3, As Applied, Discriminated on
the Basis of Content......... 26

2.......... The No-Protest Zone Was Not The Least Restrictive
Means of Promoting Safety, Nor Was It Narrowly
Tailored......... 30

3.......... No Reasonable Alternative Channels......... 33

E.......... The No-Protest-Zone Policies Were Unconstitutionally
Overbroad......... 36

F.......... The City’s Unconstitutional Policies Are Not Rendered
Permissible Under a Doctrine of “Emergency Powers”......... 37

G.......... This Court Should Reverse All Other District Court Orders
That Were Based on the Summary Judgment Orders......... 41

VII. CONCLUSION... 42

VIII. STATEMENT OF RELATED CASES. 43

TABLE OF AUTHORITIES

CASES

Bartinki v. Vopper,

532 U.S. 514, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001),
......... 28

Bay Area Peace Navy v. United States,

914 F.2d 1224 (9th Cir. 1990)......... 31, 34, 35

Boos v. Barry,

485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988),......... 13

Broadrick v. Oklahoma,

413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)......... 36

Burson v. Freeman,

504 U.S. 191,,112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992)......... 24

Clicks Billiards, Inc. v. Sixshooters, Inc.,

251 F.3d 1252 (9th Cir. 2001),......... 11

Collins v. Jordan,

110 F.3d 1363 (9th Cir. 1996)......... passim

Cox v. Louisiana,

379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965)......... 16

Geibel v. Sylvester,

244 F.3d 1182 (9th Cir. 2001) cert. denied, 534 U.S. 858 (2001)......... 30

Grossman v. City of Portland,

33 F.3d 1200 (9th Cir. 1994),......... 13, 22

Heffen v. Int'l Soc'y for Krishna Consciousness, Inc.,

452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981)......... 35

Home Building & Loan Ass'n v. Blaisdell,

290 U.S. 398 (1934)......... 39

Honolulu Weekly, Inc. v. Harris,

298 F.3d 1037 (9th Cir. 2002)......... 31

Int'l Society for Krishna Consciousness v. Lee,

505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992)......... 14

Lakewood v. Plain Dealer Pub. Co.,

486 U.S. 750, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988)......... 23

Lind v. Grimmer,

30 F.3d 1115 (9th Cir. 1994)......... 36, 37

Madsen v. Women's Health Center, Inc.,

512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994)......... 31, 35

Metro Display Adver. v. City of Victorville,

143 F.3d 1191 (9th Cir. 1998),......... 24

Metromedia, Inc. v. City of San Diego,

453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981)......... 29

Meyer v. Grant,

486 U.S. 414, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988)......... 13

Ex parte Milligan,

71 U.S. 2 (1866)......... 39

Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue,

460 U.S. 575, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983)......... 28

New York Times Co. v. United States,

403 U.S. 713 (1971)......... 39

Nunez v. City of San Diego,

114 F.3d 935 (9th Cir. 1997)......... 37

Roundy v. Comm'r of Internal Revenue,

122 F.3d 835 (9th Cir. 1997)......... 21

S.O.C., Inc. v. County of Clark,

152 F.3d 1136 (9th Cir. 1998)......... 27

Sammartano v. First Judicia Dist.l Court,

303 F.3d 959 (9th Cir. 2002)......... 30

Schenck v. Pro Choice Network Of Western New York,

519 U.S. 357, 117 S. Ct. 855, 137 L. Ed. 2d 1 (1997)......... 13, 31, 35

Sec'y of State of Maryland v. Joseph H. Munson Co.,

467 U.S. 947, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984)......... 37

Smith v. Avino,

91 F.3d 105 (11th Cir. 1996)......... 40

Tucker v. California Dep't of Educ.,

97 F.3d 1204 (9th Cir. 1996)......... 27

Turner Broadcasting Sys. v. FCC,

512 U.S. 622, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994)......... 28

United States v. Baugh,

187 F.3d 1037 (9th Cir. 1999)......... passim

United States v. Chalk,

441 F.2d 1277 (4th Cir. 1971)......... 39, 40

United States v. Griefen,

200 F.3d 1256 (9th Cir. 2000), cert. denied
530 U.S. 1234 (2000)......... passim

United States v. Linik, ,

195 F.3d 538 (9th Cir. 1999)......... 23

Vance v. Universal Amusement Co., Inc.,

445 U.S. 308, 110 S. Ct. 1156, 63 L. Ed. 2d 413 (1980),......... 22

Ward v. Rock against Racism,

491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989),......... 22, 23

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 2d 1153 (1952)......... 39

Zisner v. Accufix Research, Inc.,

253 F.3d 1180 (9th Cir. 2001)......... 12

STATUTES

28 U.S.C. § 1291......... 4

28 U.S.C. § 1331......... 4

42 U.S.C. § 1983......... 4, 18, 19

Fed. R. App. P. 32(a)(7)......... 48

Fed. R. Civ. P. 23(a)(2)......... 45

Fed. R. Civ. P. 54(b)......... 5, 6, 9

I. JURISDICTIONAL STATEMENT

This Court has jurisdiction under 28 U.S.C. § 1291. The United States District Court for the Western District of Washington possessed jurisdiction over this civil rights suit under 28 U.S.C. § 1331 and 42 U.S.C. § 1983.

On November 5, 2002, the district court directed the entry of final judgment under Federal Rule of Civil Procedure 54(b) against Plaintiffs-Appellants Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, and Nicole Pearson (hereinafter, “Plaintiffs”). (ER 764-775.)[1] That final judgment was entered on November 8, 2002. (ER 776.) Plaintiffs timely filed their notice of appeal on November 13, 2002. (ER 777-779.) Fed. R. App. Pro. 4(a)(1)(A).

II. ISSUES PRESENTED FOR REVIEW

1. Whether the district court erred in granting Defendants’ motion for summary judgment in part and denying Plaintiffs’ cross-motion for partial summary judgment in part by finding that Defendants’ policies that selectively prohibited protesters from entering downtown Seattle for three days but allowing all or virtually all others to enter without question were content-neutral on their face.

2. Whether the district court erred in denying Plaintiffs-Appellants’ cross-motion for partial summary judgment by declaring that the policy was also constitutional as applied under both the United States and Washington Constitutions. This includes the following sub-issues:

a. Whether the district court’s rulings were directly contrary to the decision of this Court in Collins v. Jordan, 110 F.3d 1363 (9^th Cir. 1996).

b. Whether the Defendants’ policies that excluded political protesters into Seattle’s downtown core while allowing free access to all others were content-neutral and viewpoint-neutral as applied.

c. Whether those policies constituted a prior restraint.

d. Whether those policies were the least restrictive means of furthering Defendants’ stated goals of protecting persons and property.

e. Whether those policies left sufficient alternative avenues of communication open to protesters.

f. Whether those policies were unconstitutionally overbroad.

3. Whether the district court’s denial of class certification should be reversed and remanded for further consideration because the denial of class certification was based on the court’s prior constitutional rulings.

4. Whether the district court’s grant of summary judgment in favor of the individual Defendants should be reversed because it rested solely on the court’s prior constitutional rulings.

III. STATEMENT OF THE CASE

A. Nature of the Case

This is an appeal from the district court’s entry of final judgment in favor of Defendants and against Plaintiffs-Appellants. (ER 776.) The district court entered final judgment against Plaintiffs-Appellants under Fed. R. Civ. P. 54(b) after finding that previous summary judgment orders “effectively eliminated all claims made by these five plaintiffs.” (ER 767.)[2]

In those previous orders granting Defendants partial summary judgment, the district court declared that Defendants’ creation and enforcement of a policy to selectively exclude protesters from the core of downtown Seattle for three days did not violate the First Amendment of the United States Constitution nor the Washington Constitution. (ER 727-749.) These orders extinguished the claims of the five Plaintiffs now appealing, as those Plaintiffs’ claims are based solely on an allegation that the Defendants’ policies were unconstitutional.

B. Proceedings and Disposition of the Case

Plaintiffs are representatives of a proposed class of individuals who were arrested in Seattle, Washington, from November 30, 1999 through December 3, 1999, while protesting the presence and policies of the World Trade Organization (“WTO”). Among other things, Plaintiffs allege that their arrests violated the First, Fourth, and Fourteenth Amendments to the Constitution because they were made pursuant to Defendants’ policies that declared a large, multi-block area of downtown Seattle off-limits to all protests for a period of three days.

Defendants moved for partial summary judgment on several issues, including the question of whether Defendant Mayor Paul Schell’s December 1, 1999, order excluding protesters from downtown Seattle (known as “Order No. 3”) was constitutional on its face. (ER 1-31.) On August 7, 2001, Plaintiffs opposed that motion in a brief filed jointly by the plaintiffs in this case and plaintiffs in several related actions that were consolidated with this case for the limited purpose of deciding common First Amendment issues. (ER 583-645.) Plaintiffs also cross-moved for partial summary judgment, alleging that Order No. 3 was unconstitutional on its face and that the City’s policies regarding protesters were unconstitutional as applied. (Id.)

On October 29, 2001, without hearing oral argument on the motions, the district court granted Defendants’ motion in part, ruling that Order No. 3 was constitutional on its face, and denied Plaintiffs’ cross-motion in its entirety, ruling that the City’s policy of arresting protesters was constitutional as applied. (ER 727-745.) In particular, the district court ruled that the City’s policy of arresting all protesters who entered the core of downtown Seattle, but allowing others to enter, was 1) content neutral, 2) served a significant governmental interest because it responded to “an emergency situation,” 3) was narrowly tailored, and 4) provided ample alternatives for expression. (ER 735-743.) The district court confirmed, in a separate order dated December 7, 2001, that it found Defendants’ policies constitutional, both facially and as applied. (ER 746-749.)

As a consequence of those rulings, on January 8, 2002, the district court adopted a magistrate judge’s recommendation that the district court deny Plaintiffs’ motion for class certification in this matter. (ER 753.) Also as a direct result of its rulings on the First Amendment issues, on August 29, 2002, the district court entered summary judgment on all claims in favor of individual Defendants Paul Schell and Norman Stamper. (ER 757-763.)

On November 5, 2002, in response to Plaintiffs’ motion, the district court directed the entry of final judgment against Plaintiffs-Appellants to allow them to appeal from the consolidated summary judgment order that had eliminated their claims. (ER 764-775.) On November 6, 2002, the district court entered final judgment against Plaintiffs-Appellants. (ER 776.) On November 13, 2002, Plaintiffs-Appellants filed their notice of appeal. (ER 777-779.) The three other Plaintiffs in this case against whom final judgment was not entered are not parties to this appeal and continue to litigate their remaining claims in the district court.

IV. STATEMENT OF FACTS

This putative class action was brought on behalf of hundreds of political protesters who were arrested in downtown Seattle in November and December 1999 pursuant to Defendants’ policy of arresting all protesters while representatives of the World Trade Organization (“WTO”) convened. All of Plaintiffs-Appellants were arrested pursuant to Defendants’ policies – adopted in reaction to predominantly peaceful protests – that declared 25 blocks of downtown Seattle off-limits to all political protesters for the duration of the WTO meetings. Any protester who entered that area was subject to arrest, regardless of how peaceful and otherwise lawful the protest was. As described in detail below, it was only protesters who were targeted for exclusion and arrest, while business owners, WTO delegates, shoppers, workers, and others were given free access to all of downtown Seattle.

A. “The Vast Majority of Protesters Were Peaceful”

On November 30, 1999, there were several large demonstrations throughout downtown Seattle in protest of the WTO proceedings, involving tens of thousands of people. However, despite the large numbers, Defendant Mayor Paul Schell acknowledged that the City “expected the vast majority of the protesters to be peaceful, and, in fact, it turned out that the vast majority of protesters were peaceful.” (ER 286-287.) These largely peaceful protesters included a multi-union Labor March that had approximately 40,000 participants. (ER 325.)

Despite the fact that most protesters were peaceful, a very small group – a few hundred at most – engaged in vandalism (primarily breaking windows and spray-painting graffiti). This group was the so-called “Black Bloc,” which represented far less than one percent of the total number of protesters but received a disproportionate amount of media attention. (ER 366.) A majority of the protesters did not support these self-described anarchists and attempted to keep them from destroying property or injuring others. (Id.)

B. The City Responds By Prohibiting All Protests

The City’s reaction to the sporadic vandalism and violence was not to target the few violent demonstrators but rather to restrict the access of all protesters to the downtown area. On the afternoon of November 30, 1999, Mayor Schell met with Assistant Chief Ed Joiner, who was the Chief Operations Officer in charge of developing the City’s WTO police policies. Mayor Schell followed the advice of Chief Joiner and others by declaring a state of emergency. (ER 277-279, 327, 401-402.)

After discussing how to best police the downtown area, Mayor Schell and his advisors settled on a two-part plan. One part of the plan was to enact a nighttime curfew for the entire downtown area, prohibiting all persons from being outdoors during curfew hours. (ER 290-291, 334.) According to Chief Joiner, this nighttime curfew effectively eliminated the disorder observed earlier in the day, and the downtown was rendered “quite peaceful” in the early morning of December 1. (ER 334.)[3]

The second part of the plan was to create a “buffer zone” extending for many city blocks around the Convention Center, where the majority of the WTO meetings were held. This idea was strongly supported by the police, and the Mayor concurred. (ER 288, 291-293.) This zone would be large enough to encompass not just the Convention Center itself, but also the hotels many blocks away where WTO delegates were staying. The motivation for creating the zone was fear that protesters of any sort might break the law or interfere with the delegates if allowed into this area. As Chief Joiner testified,

Q. At the time you were making the request [to Mayor Schell for a Declaration of Emergency], what intelligence did you have that there would be violence on December 1?

A. I think it was a matter of looking at what was going on at that point in time, and the anticipation was that we would have continued demonstrations throughout the conference. … It was tied to our evaluation of what was going on, and the expectation that it would continue throughout the week.

(ER 328.) See also ER 333 (Joiner testimony) ("We would not have allowed [peaceful protesters] to stay there … because … we could not be assured that the demonstration would remain peaceful given the experience that we already had.")

1. The City Decides To Ban Protesters From the Downtown Core

It has never been disputed that this buffer zone excluded all protesters, peaceful or not, from Seattle’s downtown for the duration of the WTO conference. Mayor Schell stated that it was his "intent that if people who were peacefully protesting, not disrupting traffic or anyone else, were in the zone, that they would … be arrested," if, in "the judgment of the officers and people charged with the responsibility of carrying out that order," they felt such arrests were necessary. (ER 275.) The idea of allowing peaceful protesters into the zone was considered, but rejected. (ER 327.) As Assistant Chief Joiner testified:

Q. And so it's your testimony that if [protesters] were in Westlake Center, not on the street, peacefully protesting they would have been arrested for blocking the street?

A. Could have been, yes.

(ER 332-333.) However, the City did not want to bar everyone from downtown. In particular, the City was concerned because the conference was scheduled for the week after Thanksgiving, the busiest shopping week of the year. (ER 337.) With this in mind, a consensus was reached that certain groups would be allowed into the zone, including Christmas shoppers. (ER 310-316.)

2. The Mayor Adopts Order No. 3

In the early morning hours of December 1, 1999, Mayor Schell signed Local Proclamation of Civil Emergency Order Number 3 (hereinafter, “Order No. 3), which declared as follows:

Commencing immediately on December 1, 1999, no person shall enter or remain in a public place…within the above described limited curfew area except the following:

· Delegates and personnel authorized by the WTO to participate in official WTO functions;

· Employees and owners of businesses within the limited curfew area and other personnel necessary to the operation of those businesses;

· Persons who reside within the limited curfew area;

· Emergency and public safety personnel.

This limited curfew shall continue until 12:00 midnight Friday, December 3, 1999, and shall be enforced by the Police Department and other law enforcement agencies.

(ER 413-414.)

The “limited curfew area” mentioned in Order No. 3 was in fact a wide-ranging area covering 25 square blocks in the heart of downtown Seattle, as depicted in a map attached to the order. (ER 415.) While the geographical scope of that order was later temporarily revised to reduce the size of the area by a few blocks, it was never smaller than 16 square blocks, and the list of those approved to enter the zone was clarified to add “representatives of the press with proper credentials” and “City officials with valid identification.” (ER 281, 284, 417-423.)

As the map depicting the zone shows, the area included most of Seattle’s major hotels, the two primary venues for the WTO convention (the Paramount Theater and the Washington State Convention Center), and block after block of public streets and sidewalks. (ER 415.) The restricted area also included a major downtown public park and gathering area, Westlake Park (see, e.g., ER 262), and the primary shopping area in downtown Seattle, where, in the words of Mayor Schell, “a number of … major retailer stores,” such as Nordstrom, are located. (ER 311.)

3. The Police Implement the No-Protest Zone, Selectively Excluding Protesters

The intent and effect of the City’s policies, as embodied in Order No. 3, was clear: to exclude all protesters from the designated area. In fact, Assistant Chief Harvey Ferguson and the other officers on the night shift who prepared to implement the policy on December 1, 1999, called the area the “No-Protest Zone.” (ER 433.)[4] The police were given broad discretion to enforce the No-Protest Zone, with the on-scene officers responsible for deciding whether a particular person should be excluded from the zone. (ER 275-276, 306-307.)

In exercising that discretion, Assistant Chief Harvey Ferguson, acting on instructions from his superiors, issued a written operations order instructing officers that individuals could enter the No-Protest Zone if they had a “reasonable purpose” for doing so, which included “work, shopping at a specific location within the perimeter, or other like type reasonable activity ….” (ER 435.) According to Assistant Chief Ferguson, carrying a sign or distributing leaflets within the zone was not a legitimate or compelling reason justifying entrance. (ER 430.) Chief Stamper agreed that

a reasonable purpose does not include coming into the area for protests, so I think the language itself gives rise to the claim that this had become a no-protest zone.

(ER 404.) A Seattle Emergency Operations Center situation report made this policy clear, stating that “no demonstrations [would] be allowed to enter” the No-Protest Zone. (ER 439.)

At the start of the day shift, Ferguson’s order was given to Chief Joiner and Captain Pugel, who was in charge of Demonstration Management. (ER 334-335.) Captain Pugel testified that Chief Joiner told him, “No large protests. No people can come marching through. There will be no marches.” (ER 445.) Chief Stamper summarized the instructions given to the officers as follows:

From the officer’s point of view, we have made it clear that we could not permit large groups to gather to block intersections and so forth, and from their point of view what they’re thinking and what they believe is their direction is to make sure that nobody comes into that, into the so-called no-protest zone unless he or she is there to shop or has legitimate business purpose in the downtown area, so from their point of view it effectively meant anybody coming in to protest.

(ER 404). The officers understood that these orders created “a zone where protesters were not allowed,” (ER 450) but where “if you had business to take care of, to be in that curfew area, that you would be allowed in.” (ER 454.) As Chief Joiner stated on a CNN news broadcast on December 1, 1999, “Anyone who goes into that area to protest will be arrested immediately.” (ER 272.)

These instructions also went to the other law enforcement agencies working under the command of the Seattle Police, those being the Washington National Guard and Washington State Patrol. (ER 337.) Those agencies also understood that all protesters were to be kept out of the Zone and that passing out leaflets or displaying signs was forbidden within the Zone. (ER 461-464, 466, 476-478.)

4. The Policy is Enforced as Ordered

The actions of line officers during WTO week were consistent across the No-Protest Zone, and were consistent with the orders given to selectively exclude and arrest all protesters. Police actions on December 1, 1999, included the following incidents:

· Approximately 180 people were arrested in Westlake Park inside the Zone. These people had gathered in a group in the park, not the street, and were holding signs and chanting. The police did not arrest dozens of others who were also in Westlake Park, but not visibly protesting. (ER 261-263.)

· At the southwest edge of the Zone, police similarly stopped people carrying anti-WTO signs, buttons, or stickers, citing the “No Protest Zone” order. Once one witness’s button was removed, he was allowed entrance to the Zone. Other witnesses had signs forcibly taken from their hands and stickers torn from their coats, in at least one case tearing the fabric. Other witnesses had their bags and backpacks searched without permission. One woman, not wishing to be manhandled, reluctantly agreed to take off the stickers herself. After she threw them on the ground in disgust, the officer told her to pick them up because littering was against the law. (ER 500-505, 572-574, 578-582.)

· Just outside the southeast corner of the Zone and directly in front the U.S. Courthouse, police stopped a lone protester on her way to a rally sponsored by a Church, confiscated and destroyed her signs, tore a sticker off her coat, and searched her bag without consent. (ER 508-511.)

· At the Zone’s perimeter, officers informed a person carrying a business card upon which he had written the words “I Protest!” was subject to arrest if he did not leave the area immediately. (ER 517-520.)

Thus, it is undisputed that for three days, the City of Seattle outlawed peaceful protest throughout an expansive portion of its downtown yet allowed all or virtually all others to enter that same area.

V. STANDARDS OF REVIEW

This appeal seeks review of an order granting and denying cross-motions for partial summary judgment, as well as an order granting final summary judgment in favor of some defendants. This Court reviews all grants of summary judgment de novo. See Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9^th Cir. 2001), citing Balint v. Carson City, 180 F.3d 1047, 1050 (9^th Cir. 1999) (en banc). “Viewing the evidence in the light most favorable to the nonmoving party . . . and drawing all reasonable inferences in its favor, [the Court] must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact.” 251 F.3d at 1257.

This appeal also seeks review a denial of class certification. Denials of class certification are reviewed for an abuse of discretion. See Zisner v. Accufix Research, Inc., 253 F.3d 1180, 1186 (9^th Cir. 2001), citing Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 816 (9^th Cir. 1997).

VI. ARGUMENT

A. The City’s Policies Prohibited Political Speech in Traditional Public Fora, Giving Rise to Exacting Scrutiny

It has never been disputed that the City’s No-Protest-Zone policies, by limiting access by protesters, quashed even non-violent political speech on public streets and sidewalks and in public parks. As such, it is subject to the most rigorous scrutiny from the courts. Political speech[5] is not only protected by the First Amendment, it is of “central importance” to the First Amendment, which “reflects ‘a profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide open.’” Boos v. Barry, 485 U.S. 312, 318, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988), quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The protections of the First Amendment are at their “zenith” when a government attempts to regulate political speech, and therefore any such attempt is subject to “exacting scrutiny.” Meyer v. Grant, 486 U.S. 414, 420, 425, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988).

The need for rigorous review of the City’s policies is heightened further by the fact that there is no dispute that those policies barred access by protesters to public parks, streets, and sidewalks, which “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Grossman v. City of Portland, 33 F.3d 1200, 1204-05 (9^th Cir. 1994), quoting Hague v. CIO, 307 U.S. 496, 515 (1939). As the Supreme Court has stated,

Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.

Schenck v. Pro Choice Network Of Western New York, 519 U.S. 357, 377, 117 S. Ct. 855, 137 L. Ed. 2d 1 (1997). Political speech in public places is entitled to the greatest protection, and therefore any regulation of such speech in a public place “is subject to the highest scrutiny.” Int’l Society for Krishna Consciousness v. Lee, 505 U.S. 672, 678, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992). This Court must examine the City’s policies under the Court’s brightest lights, and those policies simply cannot withstand such a searching constitutional review.

B. Precedent from This Court Mandates Reversal of the District Court’s Summary Judgment Orders

In order to decide this appeal, the Court need look only to its decision in Collins v. Jordan, 110 F.3d 1363 (9^th Cir. 1997), in which the Court struck down an indistinguishable policy that banned all protests in downtown San Francisco in response to sporadic violence that occurred in demonstrations the previous day. The case is so oddly similar to this case that it warrants particular attention and should have been dispositive of the motions below. The district court nonetheless rejected the holding of Collins in favor of what it perceived to be the holding of United States v. Griefen, 200 F.3d 1256 (9^th Cir. 2000), cert. denied, 530 U.S. 1234 (2000) a case that is entirely distinguishable. Given the importance of these two cases to this appeal and the district court’s order, Plaintiffs-Appellants demonstrate below why Collins controls the outcome of this appeal and why Griefen does not.

1. Collins v. Jordan Controls the Outcome of this Appeal

Collins spawned from civil unrest that erupted in San Francisco in 1992 following the acquittal of the Los Angeles police officers that beat Rodney King. On April 30, 1992, “a number of peaceful, though angry, demonstrations occurred in various parts of San Francisco. There was also a large not-so-peaceful demonstration in the downtown Civic Center area that led to a number of violent incidents, mostly involving property damage, although a few involved minor injuries, as well.” Id. at 1367. In response to the violence, the Mayor of San Francisco declared an emergency and the next day the City adopted an order directing officers to “take all steps necessary to cause the dispersal and prevent the continuation of any gatherings of people anywhere in … San Francisco” where the officer had “reason to believe that the gathering endangers or is likely to endanger persons or property.” Id. at 1367. The order further directed the officers to arrest anyone who did not obey an order given under the policy. Id. Based on this order, officers banned all protests, whether peaceful or not. Id. at 1369.

On May 1, 1992, the day the policy was instituted, San Francisco officers encountered a group of people gathering at a BART station. The officers read the mayor’s emergency order to the group and ordered them to disperse. Some dispersed, some did not. Those who did not were arrested. Id. at 1367. Other, similar mass arrests rippled through other parts of San Francisco as a result of the mayor’s order, resulting in hundreds of arrests. Id. at 1368.

Several of those arrested at the BART station brought suit under 42 U.S.C. § 1983, alleging among other things that the mayor’s policy (and their resulting arrests) violated their First Amendment rights. One of the individual defendants moved for summary judgment on the grounds of qualified immunity, and the district court denied the motion. Id. at 1369. The defendant appealed that decision, and this Court affirmed it.

This Court framed the issue on appeal as follows:

whether given the established state of First Amendment law [as of May 1992], a reasonable officer would have known that a decision to prevent all demonstrations based on events of the preceding day would violate the constitutional rights of those desiring to engage in peaceful protests.

Id. at 1370. The Court’s unequivocal holding was that the law was clear that prior restraints on speech in traditional public fora cannot be justified by reference to previous outbreaks of violence:

[The defendant] argues that instances of previous violence or unlawful activity either create an exception to the “clear and present” test or are sufficient to meet that test. Thus, he contends that he reasonably could have believed, in light of the violence that transpired on the previous evening, that it was lawful to prevent all demonstrations on May 1, 1992. We disagree. As a matter of law, it was clear at that time, as it is today, that the occurrence of limited violence and disorder on one day is not a justification for banning all demonstrations, peaceful or otherwise, on the immediately following day (or for an indefinite period thereafter).

Id. at 1372 (emphasis added). The Court emphasized that the proper response to acts of sporadic violence during demonstrations is not to ban all demonstrations, but rather to ensure that there are sufficient numbers of officers on hand to arrest any violent protesters:

The law is clear that First Amendment activity may not be banned simply because prior similar activity led to or involved instances of violence. There are sound reasons for this rule. Demonstrations can be expected when the government acts in highly controversial ways …. The more controversial the event, the more likely people are to demonstrate. Some of these demonstrations may become violent. The courts have held that 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 (citation omitted). See also, e.g., United States v. Baugh, 187 F.3d 1037, 1043-44 (9^th Cir. 1999) (“a complete ban on First Amendment activity cannot be justified simply because past similar activity led to violence”); Cox v. Louisiana, 379 U.S. 536, 550, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965) (arrests of protesters could not be justified by police perception that “violence was about to erupt”).

The similarities between this case and Collins are obvious and striking. In both cases, in response to sporadic violent protest on day 1, an emergency was declared, and on day 2 all protests were barred in a wide-ranging area of public sidewalks and parks, without concern for whether those protests were (or would be) peaceful. This Court could hardly have been more clear in its holding that such a ban can never be justified by reference to prior violence – yet that is precisely the justification Defendants offered for their policies (ER 15-18, 687-691), and the primary grounds on which the district court based its ruling (ER 736-742).

The district court did not ignore Collins but instead attempted to distinguish the case because (1) “the violence and riots were continuing unabated in Seattle at the time defendants issued … Order [No. 3] and implemented the zone,” and (2) “the defendants created a circumscribed zone surrounding the WTO conference.” (ER 741.) In so holding, the district court not only ignored Collins’ central holding that sporadic violence cannot support a subsequent shutdown on all protest, the court also misconstrued the undisputed factual record.

The district court’s characterization of the No-Protest Zone as “circumscribed” avoids the truly enormous size of the area the Zone covered. The Zone at its zenith encompassed 25 square blocks of Seattle’s downtown, and was never smaller than 16 square blocks. (ER 415, 419.) At all times, it included most of Seattle’s major hotels, the two primary venues for the WTO meetings (the Paramount Theater and the Convention Center), and extensive public streets and sidewalks. (Id.) It also included a central public park (see, e.g., ER 262.) and the primary shopping area in downtown Seattle where “a number of … major retailer stores” are located. (ER 311.) Plaintiffs-Appellants respectfully disagree that such an expansive portion of any major city’s central downtown could ever be considered “circumscribed.”

The district court also erroneously represented the record by asserting that “violence and riots were continuing unabated” when the No-Protest Zone first went into effect. (ER 741.) The record shows otherwise. Chief Joiner, who had ultimate authority for implementing WTO policy, testified as follows:

On [the night of November 30^th] when we had adequate numbers of officers in place and some of the protests and some of the violence had died down – so it was roughly 8 o’clock [p.m. on November 30^th] – we lined the officers up … and then the officers in effect marched northward. And the intent was to go all the way down to Denny Street…. I think as it turned out the officers only had to go as far as I think Howell Street…. At that time all of the demonstrators had left. The situation was under control. It was quite peaceful. … [D]uring that lull, the perimeter was of course established.

(ER 334) (emphasis added). The activity log kept by the Seattle Police confirms that the late hours of November 30 and the early morning hours of December 1 passed without incident. (ER 169.) There is no evidence in the record that the City of Seattle was in a state of violence or riot when Defendants implemented the No-Protest Zone. To the contrary, Chief Joiner testified that the Zone was not designed to eliminate existing violence but rather was intended to prevent all future demonstrations in Seattle’s downtown core for the duration of the meetings of the WTO, in the anticipation that they might involve violence:

it was a matter of looking at what was going on at that point in time, and the anticipation was that we would have continued demonstrations at the conference. … It was tied to our evaluation of what was going on, and the expectation that it would continue throughout the week.

(ER 328.) He also stated, “we would not have allowed [peaceful protesters] to stay [in the No-Protest Zone] because we couldn’t – we could not be assured that the demonstration would remain peaceful given the experience that we already had.” (ER 333.) The district court’s characterization of the record was erroneous and cannot be considered as supporting its attempts to distinguish Collins.

However, even if the district court’s reading of the record were accurate, it would still not serve to distinguish Collins from this case. Even if violence had been occurring at dawn on December 1, 1999, and even if the Zone could be considered “circumscribed” because it did not ban protesters from the entire city, the fact remains that Defendants banned all protest in a 25-square-block region of downtown Seattle because of previous, sporadic violence. The law is clear that “a complete ban on First Amendment activity cannot be justified simply because past similar activity led to violence.” Baugh, 187 F.3d at 1043-44, citing Collins. The district court’s attempts at distinguishing the facts of this case from the facts in Collins ignored the central holding of Collins. Collins is applicable here and this Court should reverse the district court on the basis of that precedent alone.

2. United States v. Griefen Does Not Trump Collins

The district court apparently rejected Collins in favor of what it saw to be a more similar case, United States v. Griefen. (ER 740-742.) This was erroneous, as Griefen is distinguishable on several key points.

In Griefen, the Forest Service issued a policy that required all members of the public, including protesters, to stay at least 150 feet from a road construction site in a public forest. That policy, which resulted in the arrest and conviction of certain protesters, had been adopted in order to protect the safety of both the workers and the public. See Griefen 200 F.3d at 1260-61. The plaintiffs, at the time of their arrest, had not only violated the 150-foot zone, but had placed themselves in positions from which they could not be readily removed (e.g., placing themselves in elevated structures “defended by nails”), thereby endangering both themselves and the workers. Id. at 1259. This Court found that given the nature of what the plaintiffs were doing when arrested (“they presented a ‘clear and present danger’” to themselves and others), the relatively small 150-foot boundary, and the availability to the protesters of alternative methods of communication, the arrests and convictions were constitutional. Id. at 1260-61.

There are numerous fundamental ways in which Griefen is different from this case. Most obviously, the Griefen policy excluded all people not engaged in the construction from the 150-foot zone – not just protesters, as was the case here. Second, the policy concerned protests on public forests, not the quintessential public fora of streets, sidewalks, and parks, at issue in this case. Third, Griefen concerned a limited, 150-foot “zone” while the zone in this case was an enormous 25 square blocks of public parks, sidewalks, hotels, convention centers and shopping centers normally filled with pedestrians. Fourth, because Griefen concerned a construction site, there was a real danger to the safety of anyone who entered the buffer, whereas here the No-Protest Zone was not a hazardous area and in fact was deemed safe enough for entry by the average shopper. Fifth, the protesters were arrested only after they had violated the zone and engaged in unprotected speech that constituted a “clear and present danger,” id. at 1260, while there is no evidence of any such behavior by Plaintiffs-Appellants. As Defendants in this case made clear, even peaceful protesters were subject to arrest simply for being in the Zone. (E.g., ER 275, 332-333.)

Despite these key distinctions between this case and Griefen, and the direct parallels between this case and Collins, the district court appears to have not followed Collins in favor of Griefen, which the court perceived as holding that the First Amendment does not prohibit a government policy that prevents entry into a public forum by anyone other than “those necessary for it to function.” (ER 740.) Plaintiffs-Appellants respectfully disagree that Griefen made any such holding. As the Court stated in that case:

Our holding does not imply that an order that closes a public forum is sacrosanct. Should it appear that the true purpose of such an order was to silence disfavored speech or speakers, or that the order was not narrowly tailored to the realities of the situation, or that it did not leave open alternative avenues for communication, the federal courts are capable of taking prompt and measurably appropriate action.

200 F.3d at 1265. In other words, even under Griefen, a policy allowing for “normal operations” must pass the standard First Amendment tests of constitutionality.

As discussed at length later in this brief, the No-Protest Zone simply cannot survive an application of those principles. However, this Court need not undertake a lengthy analysis, as the decision in Collins is dispositive. Griefen is entirely distinguishable and does not support the district court’s opinion.[6] However, even if this Court does not agree that Collins, on its own, is dispositive, the No-Protest-Zone policies were also unconstitutional under other First Amendment precedents.

C. Defendants’ Policies Constituted a Presumptively Unconstitutional Prior Restraint

In addition to being subject to heightened scrutiny because it regulated political speech in traditional public fora, Defendants’ No-Protest-Zone policies were also presumptively unconstitutional because they constituted a prior restraint on speech. A prior restraint is any regulation that gives “public officials the power to deny use of a forum in advance of actual expression.” Ward v. Rock against Racism, 491 U.S. 781, 795 n.5, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989), quoting Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 553 (1975). The No-Protest Zone was clearly such a restraint, as it denied demonstrators the right to speak freely in the public areas of downtown Seattle in advance of any law-breaking on their part. See also, e.g., Baugh, 187 F.3d at 1042 (regulation prohibiting protesters from entering park was prior restraint).

Prior restraints “are the most serious and the least tolerable infringement on First Amendment rights.” Grossman, 33 F.3d at 1204.

Any prior restraint … [bears] a heavy presumption against its constitutional validity. [citations omitted] “The presumption against prior restraints is heavier – and the degree of protection broader – than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse the rights of speech after they break the law than to throttle them and all others beforehand.”

Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 316 n.13, 110 S. Ct. 1156, 63 L. Ed. 2d 413 (1980), quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59 (1975). As this Court stated in Collins, “enjoining 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.” 110 F.3d at 1371.

Prior restraints are particularly offensive where, as here, the prior restraint vested individual officers with broad discretion to prohibit speech. (E.g., ER 275-276, 206-307, 339.) The Supreme Court has noted:

[W]e have often and uniformly held that such statutes or policies [that give unbridled discretions to government officials] impose censorship on the public or the press, and hence are unconstitutional, because without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or the viewpoint of the speaker.

Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 763-64, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988).

Defendants did not dispute before the district court that their No-Protest Zone constituted a prior restraint on speech. However, the district court held that it was not, reasoning that because the district court found the No-Protest Zone content-neutral, it could not be considered a prior restraint. (ER 743 n.4.) Even accepting for the sake of argument that the Zone was content-neutral, this is an erroneous interpretation of the law. The presumption of unconstitutionality applies to prior restraints whether they are content-neutral or content-based; whether a restraint is content-based is relevant only for the purposes of determining whether the restraint can overcome the burden of that presumption. See, e.g., Baugh, 187 F.3d at 1042 (determining whether prior restraint was content-neutral). It is well-established that a prior restraint may be declared constitutional only if it is (1) content-neutral, (2) narrowly tailored to serve (3) a significant government interest, and (4) leaves open ample alternative channels for expression of the message in question. See id., citing Ward, 491 U.S. at 791; United States v. Linik, 195 F.3d 538, 543 (9^th Cir. 1999). The district court concluded that Defendants’ policies satisfied this test, but that ruling was erroneous as demonstrated below.

D. The City’s Policies Were Not Reasonable Time, Place, and Manner Restrictions

The district court concluded that the No-Protest Zone was a reasonable time, place, and manner restriction. This was erroneous. Defendants’ policies were not content-neutral, they were not the least restrictive means necessary to promote the stated interest in safety, and they did not leave open adequate alternative means for protesters to communicate with the WTO delegates. The district court should have found those policies unconstitutional.

1. The Policies Were Not Content-Neutral, Either Facially or As Applied

The district court ruled that Order No. 3 and the attendant policies that resulted from Order No. 3 were content-neutral, both on their face and as applied. However, “[i]t is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Metro Display Adver. v. City of Victorville, 143 F.3d 1191, 1195 (9^th Cir. 1998), citing Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819 (1995). A government policy that regulates or prohibits political speech but “does not reach other categories of speech, such as commercial solicitation, distributions, and display” is a policy that discriminates on the basis of content – “the First Amendment’s hostility to content-based regulation extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an entire topic.” Burson v. Freeman, 504 U.S. 191, 197,112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992) (plurality opinion). In this case, the Defendants’ policies, both on their face and as applied, isolated those engaging in a particular type of speech – political protest – and selectively kept them from engaging in that speech in public areas. The policies thus clearly discriminated on the basis of the content of the protesters’ speech.

a. On Its Face, Order No. 3 Discriminates on the Basis of Content

Order No. 3 is unconstitutional on its face because it allowed virtually all persons other than demonstrators to enter the No-Protest Zone. Order No. 3 as originally adopted broadly proclaimed to prohibit anyone from entering the No-Protest Zone but the “exceptions” swallowed the rule by permitting everyone except protesters into the Zone. Those allowed into the Zone included (1) WTO delegates and personnel, (2) employees and owners of business and others “necessary to the operation of those businesses,” (3) people who lived in the No-Protest Zone, and (4) emergency and public safety personnel. (ER 413-414.) These were later amended to clarify that the press and City officials could also enter the Zone. (ER 310-316, 330, 477-478.) In particular, Order No. 3 allows entry by anyone “necessary to the operation of … businesses” inside the Zone, an extraordinarily broad and vague exception that is easily read to let anyone into the Zone who could normally be found there, including shoppers. (ER 414.)

Order No. 3, on its face, excluded anyone who planned to protest the WTO but allowed entry by anyone with a different purpose. If this left any doubt as to whether Order No. 3 specifically targeted WTO protesters, the duration of Order No. 3 – it was in effect for only the length of the WTO meetings – erased all such doubt. (ER 414.) Order No. 3 discriminated on the basis of the content of the demonstrator’s speech.

The district court nonetheless concluded that Order No. 3 was content-neutral on its face because “the language does not address expression.” (ER 736.) However, although Order No. 3 does not specifically state that protesters will be excluded, the listed “exceptions” are so broad that it is clear, on its face, that Order No. 3 is designed to maintain the status quo in downtown Seattle and to exclude those who might disrupt the status quo, namely protesters. On its face, Order No. 3 allows everyone who would normally be found downtown into the downtown area – plus WTO delegates. The district court endorsed a verbal slight of hand by holding that a policy that does not actually say “no protesters” but contains “exceptions” for every category of person other than a protester is somehow different than a policy that honestly states that it is excluding protesters. Order No. 3 is clear on its face – everyone except political protesters was allowed into the Zone. This was a facially discriminatory policy. The district court should have denied Defendants’ motion for partial summary judgment on that issue and should have granted Plaintiffs’ cross-motion on the same issue.

b. Order No. 3, As Applied, Discriminated on the Basis of Content

Even if Order No. 3 is content-neutral on its face, it was certainly not neutral as applied. It has never been disputed that regardless of what Order No. 3 said, it was understood by all involved to order police to target and identify all anti-WTO demonstrators, exclude them from the No-Protest Zone, and arrest any who did enter the Zone. (See, e.g., ER 404, 479, 445, 450, 454, 461-464.) Under the no-protest policies, among numerous other incidents, officers arrested large groups of demonstrators assembled in a public park downtown but did not arrest non-demonstrators in that same park (ER 261-263) and officers refused entry to the Zone by downtown workers until the workers removed “No WTO” stickers from their clothing (ER 500-505; 578-582).[7] In contrast, there is no evidence in the record that anyone supporting the WTO’s policies was ever molested by police as a result of the No-Protest Zone, nor is there any evidence that any shoppers or business owners had difficulty penetrating the boundaries of the Zone. It is undisputed that, as applied, the No-Protest-Zone policies excluded protesters while those with different agendas and viewpoints were allowed entry.

There is no dispute that hundreds of people were arrested for being on public sidewalks and parks in downtown Seattle, and hundreds more were prevented from entering downtown Seattle, solely because they were determined to be protesters. The City’s policies clearly discriminated based on the type of speech that they anticipated they might hear from protesters and favored commercial speech and the speech of WTO delegates over that of protesters. The No-Protest Zone thus regulated speech based on its content.

This Court has held that similar prohibitions were content-based, and therefore unconstitutional, even when the restrictions did not affect traditional public fora. See, e.g., Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 970-72 (9^th Cir. 2002) (policy excluding any individuals wearing “biker” clothing from a non-public forum constitutes unconstitutional viewpoint discrimination); Tucker v. California Dep’t of Educ., 97 F.3d 1204, 1215-16 (9^th Cir. 1996) (order banning discussion of “religious advocacy” topics in non-public forum invalid due to viewpoint discrimination).

However, the district court erroneously held that the No-Protest-Zone policies were also content-neutral as applied, even though it was entirely undisputed that, in practice, those policies were applied to attempt to exclude all demonstrators from the Zone simply because they were protesters. (ER 737-738.) The district court reasoned that the policies were content-neutral because they were adopted to “allow[] normal [business] operations to continue” and “allow[] the [WTO] conference to continue as planned ….” Id. This analysis simply begs the question of whether Defendants, in attempting to allow “normal operations to continue,” discriminated between speakers based on the content or viewpoint of their speech.

To the extent the district court’s ruling was that the No-Protest-Zone policies were content-neutral as applied because the motivations of those implementing the policies were content-neutral, the district court erroneously applied First Amendment law. As the Supreme Court has stated,

The purpose, or justification, of a regulation will often be evident on its face. But while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content-based, it is not necessary to such a showing in all cases. Nor will the mere assertion of a content-based purpose be enough to save a law which, on its face, discriminates based on content.

Turner Broadcasting Sys. v. FCC, 512 U.S. 622, 642-43, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). It has long been “recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment.” Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 592, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983). See also, e.g., Bartinki v. Vopper, 532 U.S. 514, 526 n.9, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001), citing Turner. Regardless of what actually motivated Defendants to adopt their no-protest policies, there is no dispute that in practice, those policies excluded protesters from the core of downtown Seattle while letting all or virtually all others into that area.

The district court further stated that the no-protest policies, as applied, did not favor commercial speech over non-commercial speech. (ER 737.) However, the record is undisputed that commercial speech was allowed to continue unabated in the No-Protest Zone, by permitting business owners, employees, and customers to roam freely within that Zone, while anyone considered to be a protester was either denied entry or arrested for entering. Defendants favored commercial speech over political speech, thereby discriminating between speakers based on content and “inverting” First Amendment jurisprudence, which gives its greatest protection to non-commercial, political speech. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981).

The district court also noted, but dismissed, the fact that WTO delegates were allowed free reign over downtown Seattle to express their views while any and all anti-WTO protesters were denied access to the same area. (ER 737-38.) The district court offered no explanation for why the Zone was nonetheless content-neutral, stating only, “the defendants allowed the conference to continue as planned and protected the safety of the WTO delegates.” (ER 738.) Plaintiffs-Appellants do not dispute that Defendants successfully permitted the WTO to conduct its business, but that does not explain how a policy preserving one group’s speech at the expense of an exactly opposing group’s speech could ever be considered viewpoint-neutral, much less-content neutral.

Plaintiffs-Appellants suggest that Defendants’ policies, by prohibiting “speech by particular speakers,” discriminated on the basis of viewpoint, and therefore were per se unconstitutional. See, e.g., Geibel v. Sylvester, 244 F.3d 1182, 1188-89 (9^th Cir. 2001) cert. denied, 534 U.S. 858 (2001). In any event, at a minimum, such a restriction is content-based and is valid only if it is the least restrictive means of preserving safety in downtown Seattle. See, e.g., S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1146 (9^th Cir. 1998). The district court should have granted Plaintiffs’ motion to the extent that it contended Defendants’ policies were not content-neutral on their face or as applied, and should have denied Defendants’ motion for partial summary judgment on the issue of whether Order No. 3 was content-neutral on its face.

2. The No-Protest Zone Was Not The Least Restrictive Means of Promoting Safety, Nor Was It Narrowly Tailored

The district court erroneously ruled that the No-Protest Zone was narrowly tailored because it “affected only a section of downtown and not the entire city” and “covered only enough territory for the WTO delegates and the President to move safely from their hotel to the convention center and lasted only during the conference.” (ER 742.) In other words, the district court ruled that the Zone was narrowly tailored because it barred all political protest from “only” 25 square blocks of a major American city over a period of “only” 3 days. Not only did the district court apply the wrong standard, its conclusion was erroneous even under the standard it did apply.

Where, as here, a government policy is based on the content of speech, it satisfies the First Amendment only if it is the “least restrictive means to further a compelling interest.” S.O.C., Inc. 152 F.3d at 1146. Where a policy is content-neutral, the policy passes constitutional muster only if it is “narrowly tailored to serve a significant government interest” such that “the regulation is not ‘substantially broader than necessary to achieve the government’s interest.’” Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1045 (9^th Cir. 2002) (citation omitted). The district court erroneously applied the latter test, having found the No-Protest-Zone policies to be content-neutral. However, regardless of which standard is applied, the No-Protest Zone was unconstitutionally broad.

There are numerous cases invalidating zones that were far smaller, on the grounds that the zones were not narrowly tailored. See, e.g., Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 760-61, 774-75, 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994) (300-foot no-protest zone around abortion clinic and private residences excessively broad even in light of need for home privacy); Baugh, 187 F.3d at 1040 (150 yards from park visitor center excessive); Schenck, 519 U.S. at 358 (15 feet from clinic entrances is acceptable, but floating 15-foot “floating buffer” around individuals is excessive); Bay Area Peace Navy v. United States, 914 F.2d 1224, 1236 (9^th Cir. 1990) (75 feet from military reviewing stand excessive, reduced to 25 feet).

Even if one accepts Defendants’ stated reasons for erecting the No-Protest Zone, the sheer size and 3-day duration of the Zone belies any argument that the Zone was narrowly tailored, much less that it was the least restrictive means of addressing Defendants’ concerns. The map of the Zone is particularly enlightening. (ER 415.) Defendants crafted the Zone to include most of the major downtown hotels, the two primary venues for the WTO meetings (the Paramount and the Convention Center), and a vast number of blocks between and surrounding each of these points. (Id.) This included all of the public sidewalks and roads within a 25-square-block area (eventually 16 square blocks), a central downtown public park, and a large number of major stores. (ER 262 (describing Westlake Park) and ER 311 (describing stores).)

The Zone was anything but narrowly tailored. Rather than expend the effort necessary to ensure clear passage for the delegates to and from the venues without infringing unnecessarily on protesters’ rights, Defendants enveloped every facet of the WTO’s activities and denied entry to all protesting voices. Defendants chose to stamp out all protest in every corner of a 25-square-block area rather than, for example, create narrow corridors for the WTO delegates to proceed through, limit the Zone to the areas immediately surrounding the venues, or limit the hours the Zone was in place.

The breadth of the No-Protest Zone was grossly out of proportion to the sporadic violence on November 30. As Mayor Schell acknowledged, he “expected the vast majority of the protesters to be peaceful, and, in fact, it turned out that the vast majority of protesters were peaceful.” (ER 286-287.) Yet there was no attempt to improve efforts to selectively arrest protesters that were breaking the law, rather than block all protest; Defendants considered but rejected the possibility of allowing only peaceful protesters in the Zone. (ER 327.) This was the case even though on December 1, 1999, the Seattle Police Department had enlisted several hundred National Guardsmen and Washington State Patrol officers to assist in enforcing the City’s laws. (ER 487 (City received assistance on December 1 from 425 National Guardsmen, 320 State Troopers, and 71 officers from nearby cities and counties).) See also ER 331 (testimony of Chief Joiner) (The National Guard “allowed us to maintain the police perimeter, freeing up officers that we could then use to deal with ongoing demonstrations that we had throughout the downtown area.”). There was no attempt to preserve lawful protest and arrest only those who broke the law, just an attempt to ban all protest – and a successful attempt, at that.

The Zone was not “narrowly tailored” so as to not be substantially broader than necessary. Instead, it was sloppily tailored to prevent all protesters’ speech in Seattle’s downtown for a full three days. The Zone was also far from the “least restrictive means” of protecting WTO delegates and permitting stores to operate. The district court erred in concluding that the Zone was narrowly tailored (and in not applying strict scrutiny), and should have granted Plaintiffs’ motion for partial summary judgment on that basis.

3. No Reasonable Alternative Channels

The district court also concluded that the 25-square-block No-Protest Zone offered demonstrators “ample avenues for expression” because they “could protest just outside … the zone” and “had access to the media and to the public beyond the Zone.” (ER 742-43.) However, even under the precedents cited by the district court, this holding was erroneous.

As already discussed, the No-Protest Zone was drawn to keep protesters completely away from the WTO delegates and the public officials in town for WTO-related events. If anyone was going to protest the WTO without violating the City’s policies, they would have to do it where the WTO could not hear or see them. Even outside the Zone, there was a significant risk of arrest for protesting. (Compare ER 527-536 (documenting mass arrest 11 blocks outside the Zone) and ER 415 (map of Zone).)

As the district court itself stated, “an alternative that does not allow speakers to reach their intended audience does not suffice.” (ER 742-743.) In support of this statement, the district court cited Baugh, in which the U.S. Park Service had barred demonstrators from coming closer than 150 to 175 yards from the offices where the officials who the demonstrators sought to influence worked. This Court ruled that the policy was unconstitutional because “[s]uch distancing of the demonstrators from the intended audience does not provide a reasonable alternative means for communicating of [plaintiffs’] views.” Id. at 1044.

The Baugh panel relied in particular on Bay Area Peace Navy, which is the only other case cited by the district court in its opinion on this issue. In Bay Area Peace Navy, this Court found unconstitutional a “safety zone” that required all boats to stay at least 75 yards away from all Navy ships, which in application meant that peace protesters were unable to approach naval officers attending a local parade of Navy ships. The Court found that there were no viable alternative modes of communication with the officers because the demonstrators could not approach them. See id. at 1229.

These cases, cited by the district court in support of its ruling, only serve to demonstrate why that ruling was erroneous. The No-Protest Zone was designed specifically to prevent all close contact between the WTO delegates and the protesters. Defendants erected a “buffer zone” of not just 75 or 150 yards, but a buffer of several city blocks that prevented demonstrators from even approaching the place where the WTO was meeting. There was no way for the protesters to voice their opinion directly to those whose views they wanted to change, and Defendants ensured that was the case. They left no viable alternatives to speak to the WTO delegates directly or provide them with literature setting forth the protesters’ views.

The district court, however, apparently believed that it was sufficient that the protesters “had access to the media and to the public beyond the zone.” (ER 743.) While those are certainly significant channels for speech, they are not sufficient for constitutional purposes. Plaintiffs-Appellants had the right to approach WTO officials and delegates and express their views. As the Supreme Court stated in striking down an injunction that prohibited protesters from approaching any person who was within 300 feet of an abortion clinic,

[i]t is difficult, indeed, to justify a prohibition on all uninvited approaches [to individuals on the streets] regardless of how peaceful the contact may be, without burdening more speech than necessary.… Absent evidence that the protesters’ speech is independently proscribable (i.e., “fighting words” or threats), or is so infused with violence so as to be indistinguishable from a threat of physical harm, this provision cannot stand.

Madsen, 512 U.S. at 774 (citation omitted, emphasis in original). The No-Protest Zone took away the protesters’ right to communicate directly with WTO delegates and other public officials in the public parks and public sidewalks, and provided the protesters no alternative method of direct communication. This violated Plaintiffs-Appellants’ First Amendment rights. See also Schenck, 519 U.S. at 337 (ordinance left no viable alternatives and was invalid because it prevented “communicating a message from a normal conversational distance or handing leaflets to people … walking on the public sidewalks”); Heffen v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 655, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981) (“The First Amendment protects the right of every citizen to ‘reach the minds of willing listeners and to do so there must be an opportunity to win their attention.”’) (citation omitted).

It is telling that, under the reasoning of the district court, the restrictions invalidated in Baugh and Bay Area Peace Navy would have been found constitutional because protesters will always have access to the media and the general public. If that were enough to satisfy the First Amendment, the requirement that a regulation leave open ample alternative modes for communication would be rendered entirely meaningless. The district court erroneously relied on the presence of the media to justify Defendants’ denial of all access by protesters to the WTO officials and delegates they sought to influence. There were no other sufficient avenues of communication with these people, and the No-Protest Zone was unconstitutional for that reason alone.

E. The No-Protest-Zone Policies Were Unconstitutionally Overbroad

In addition to failing all of the constitutional tests discussed above, the No-Protest-Zone policies were also fatally overbroad, as they prevented and prohibited a “real” and “substantial” amount of protected speech “judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). See also, e.g., Lind v. Grimmer, 30 F.3d 1115, 1122 (9^th Cir. 1994).

Defendants’ No-Protest-Zone policies were clearly overbroad, as they prohibited a vast, substantial amount of protected political speech. It is undisputed that Defendants sought to exclude all protesters from entering the core of downtown Seattle for three days, a policy that had a direct and serious effect on any speaker wishing to protest the WTO’s presence and policies. This is clearly substantial when considered in light of the policy’s “legitimate sweep,” to the extent it had one. Defendants have not identified what the “legitimate sweep” of their policies were, and it is difficult to find one here, where the record indicates protesters were the only group clearly and consistently excluded from the No-Protest Zone. Indeed, this appears to be a case where the policy in question has no “core of easily identifiable and constitutionally proscribable conduct that the statute prohibits.” Sec’y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965-66, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984). As such, the No-Protest Zone was overbroad and should be invalidated.

The district court erroneously declined to consider Plaintiffs-Appellants’ argument that the policies were overbroad because it viewed such a challenge as barred by the fact that Plaintiffs-Appellants alleged that they had engaged in constitutionally protected speech. (ER 735.) However, as this Court has recognized, this is “a technical academic point” that does not prevent any plaintiff from challenging on its face a government policy or statute that “create[s] an unacceptable risk of the suppression of ideas.” Nunez v. City of San Diego, 114 F.3d 935, 949 (9^th Cir. 1997) (citations omitted). See also Lind, 30 F.3d at 1122 (permitting overbreadth challenge by plaintiff who had already established policy was unconstitutional to him as applied). The district court should have considered Plaintiffs-Appellants’ overbreadth challenge and this Court should direct entry of partial summary judgment in favor of Plaintiffs-Appellants on that issue.

F. The City’s Unconstitutional Policies Are Not Rendered Permissible Under a Doctrine of “Emergency Powers”

In addition to erroneously concluding that the No-Protest Zone was a reasonable time, place, and manner restriction, the district court appears to have concluded that that the Zone was also permissible on the additional, independent ground that Defendants were warranted in exercising their “emergency power” to shut down Seattle’s downtown core to protesters, and only to protesters. (ER 738-41.) This was also an erroneous application of First Amendment jurisprudence because the First Amendment applies with equal force during times of peace and times of “emergency.”

The district court’s reasoning was that because there was some sporadic violence committed by protesters on November 30, 1999, and there was a possibility that there might be more unrest on December 1, 1999, the City faced an “emergency” that enabled it to take any action that was “in good faith” and undertaken for “some reason.” (ER 739.) In other words, the district court appears to have taken the position that the perceived “emergency” means that the No-Protest Zone is subject to the lowest level of scrutiny possible.

Assuming for the moment that the district court correctly interpreted the factual record, the court’s “emergency powers” holding was in direct contravention of this Court’s ruling in Collins v. Jordan. To restate the key holding of Collins:

As a matter of law, it was clear [as of May 1992], as it is today, that the occurrence of limited violence and disorder on one day is not a justification for banning all demonstrations, peaceful or otherwise, on the immediately following day (or for an indefinite period thereafter).

110 F.3d at 1372. Thus, regardless of what happened on November 30, 1999, Defendants did not have virtually unfettered discretion to enact whatever measures they saw fit to prevent any possibility of future violence. As the Supreme Court has stated:

Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system.

Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 425-26 (1934). Indeed, “there is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden,” and those are limited to times “when the Nation ‘is at war.’” New York Times Co. v. United States, 403 U.S. 713, 726 (1971) (Brennan, J., concurring) (citation omitted).

Any other rule would simply encourage the declaration of emergencies in order to suspend constitutional rights. The rule suggested by the district court – that the simple declaration of an emergency can dilute basic constitutional rights – has been soundly rejected:

No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false ….

Ex parte Milligan, 71 U.S. 2, 121 (1866). See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650, 72 S. Ct. 863, 96 L. Ed. 2d 1153 (1952) (Jackson, J., concurring) (because “emergency powers would tend to kindle emergencies,” the framers of the Constitution “made no express provision for exercise of extraordinary authority because of a crisis.”)

Despite the Supreme Court’s repeated rejection of an “emergency powers” doctrine, and in the face of Collins, the district court nonetheless found support for its holding in a case decided in the Fourth Circuit, United States v. Chalk, 441 F.2d 1277 (4^th Cir. 1971). In Chalk, in response to a riot, a North Carolina mayor declared an emergency and imposed a broad nighttime curfew that applied to all citizens. The Fourth Circuit upheld the curfew, and a conviction for violation of the curfew, noting that the curfew “applied to all,” and that it “applied only at night,” thereby minimizing its effect on protected speech. Id. at 1283 (emphasis added). It did not apply only to protesters, nor did it apply during the daylight hours when the vast majority of protected speech occurs. This case is not a challenge to the nighttime curfew Defendants enacted. This case is a challenge to their selective daytime arrest and exclusion of protesters. Thus, while Chalk appears to apply a lessened standard of review to “emergency” orders, it cannot be taken out of the context from which it arose – and indeed, no court has ever applied the case to a selective, daylight curfew in a published opinion. It was erroneous for the district court to do so here.

The same is true of the other case the district court cited, Smith v. Avino, 91 F.3d 105, 108 (11^th Cir. 1996), in which the Eleventh Circuit upheld a nighttime curfew that was imposed without exception to all people in Dade County in the wake of Hurricane Andrew. Again, the case involved only a nighttime curfew that applied to all individuals, not a selective daylight curfew aimed at political protest.

Moreover, even if these cases could be said to mandate the application of a lower standard of review in times of “emergency,” they would be in direct conflict with the law of this Court as expressed in Collins, and the Court should not follow them. The only precedent binding on this Court that the district court cited for its “emergency powers” holding was Griefen, in which this Court stated in dicta that a government could temporarily close “a street engulfed in riot or an unlawful assembly.” 200 F.3d at 1263. Plaintiffs-Appellants do not dispute that once people have been allowed to speak, and that speech has devolved into violent or otherwise unlawful behavior, that officials may take steps to enforce valid laws. However, even the Griefen dicta does not indicate a government could keep the street closed to all protests, and only protests, for an extended period of time out of a fear of future violence. Collins expressly forbids such a closure and Griefen does not hold otherwise.

In addition, the district court mistakenly concluded based on the record before it that at the time the No-Protest Zone was implemented in the morning of December 1, 1999, “there is no evidence that the violence was expected to subside,” and that “[c]haos and vandalism continued unabated.” (ER 739, 740.) In fact, the undisputed evidence before the district court was that the nighttime curfew had rendered the streets “quite peaceful” as of the morning of December 1, 1999, and that the No-Protest Zone was implemented despite that calm. (ER 334.) Indeed, if downtown Seattle was in “chaos” with “unabated” vandalism, why would Defendants have deemed it safe enough for entry by all individuals other than protesters? To the extent the district court based its ruling on its perception that uncontrolled violence persisted throughout the night and into the daylight hours of December 1, 1999, the district court seriously misconstrued the record and its ruling should be reversed for the reason alone.

The district court applied an “emergency powers” doctrine to this case in the face of precedent from this Court directly to the contrary. The district court’s decision should be reversed with directions to grant Plaintiffs-Appellants’ motion for partial summary judgment on the constitutionality of the No-Protest Zone.

G. This Court Should Reverse All Other District Court Orders That Were Based on the Summary Judgment Orders

Following its ruling that the No-Protest-Zone policies were constitutional, both on their face and as applied, the district court issued two other key orders in this case that were based entirely on its previous rulings. Given that the rulings on the constitutionality of those policies should be reversed, the other orders should also be reversed.

The first of the resulting orders was a denial of class certification. On January 8, 2002, the magistrate recommended to the district court that the district court should deny Plaintiffs’ motion for class certification (which was filed before the summary judgment rulings were issued) because the summary judgment rulings defeated commonality under Fed. R. Civ. P. 23(a)(2) and the requirements of Fed. R. Civ. P. 23(b)(3). (ER 752.) The district court adopted this recommendation, also on January 8, 2002. (ER 753.) Given that this ruling was based entirely on the erroneous constitutional rulings of the district court, the denial of class certification should be reversed and remanded for further consideration by the district court.

Similarly, on August 1, 2002, Defendants moved for summary judgment in favor of the individual Defendants, Schell and Stamper, on the ground that “now that the zone has been found constitutional, there [was] no remaining basis in plaintiffs’ Complaint to proceed against defendants Schell and Stamper individually.” (ER 754.) On August 29, 2002, the district court granted this motion, on the basis that its prior orders on the constitutionality of the No-Protest Zone foreclosed upon all claims against Schell and Stamper. (ER 762.) Since this summary judgment order was based on the district court’s rulings on the constitutionality of the Zone, it should also be reversed.

VII. CONCLUSION

For the reasons stated above, Plaintiffs-Appellants request that this Court (1) reverse the district court’s grant of partial summary judgment to Defendants on the facial constitutionality of Order No. 3, (2) reverse the district court’s denial of Plaintiffs’ motion for partial summary judgment and direct that the district court grant that motion on remand, (3) reverse the district court’s denial of Plaintiffs’ motion for class certification and remand it to the district court for further consideration, and (4) reverse the district court’s entry of summary judgment in favor of the individual Defendants, Schell and Stamper.

VIII. STATEMENT OF RELATED CASES

A related case, Menotti, et. al. v. City of Seattle, et. al., No. 02-35971, is simultaneously on appeal with this Court. The Court has already noted these cases as related and has scheduled them for hearing by the same panel.

Dated January 6, 2003.

HAGENS BERMAN LLP

By_______________________________

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

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 ______________________.

or

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 12697 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

By

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

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[1] The Excerpts of Record are referenced as ER.

[2] The district court has not entered final judgment against the other three plaintiffs who originally filed this suit. Those plaintiffs, Robert Hickey, Carroll Jackson, and Emily Maloney, are not part of this appeal at this time, and their claims are currently proceeding before the district court.

[3] Plaintiffs-Appellants do not challenge this nighttime curfew.

[4] This term is not of Plaintiffs’ making and in fact was the term commonly used by Defendants to describe the restricted area. See, e.g., ER 357, 485-486.

[5] “Core political speech” is defined as “interactive communication concerning political change.” Meyer v. Grant, 486 U.S. 414, 422 n.4, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988).

[6] Even if Griefen could be said to hold something different than Collins, Collins remains the law of this Court because it was decided first. See, e.g., Roundy v. Comm’r of Internal Revenue, 122 F.3d 835, 837 (9^th Cir. 1997) (decision can only be overruled by later en banc ruling).

[7] This is not to say that mass arrests of WTO protesters were limited to areas within the boundaries of the No-Protest Zone. On December 1, 1999, the Seattle police also conducted mass arrests of protesters and bystanders at locations well outside of the Zone. Compare ER 527-536 (description of such an arrest) and ER 415 (map of Zone).