Cuviello v. City of San Francisco (940 F. Supp. 2d 1071, 2013)

United States District Court for the Northern District of California 2013-04-15

Citations

Full opinion text

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

Defendants the City and County of San Francisco (“the City”), San Francisco Police Officer N. Yu, and San Francisco Park Ranger J. Mitra (collectively, “Defendants”) bring the current motion to dismiss the First Amended Complaint for Injunctive and Declaratory Relief and Damages (“FAC”) brought by Plaintiffs Joseph P. Cuviello, Deniz Bolbol, and Alex Felsinger. In their complaint, Plaintiffs plead seven different causes of action stemming from Defendants’ enforcement of sections 7.08(d) and 7.15 of the San Francisco Park Code (hereinafter, “section 7.08(d)” and “section 7.15”), as well as their restricting Plaintiffs’ free speech activities to a 20 feet by 20 feet corner of San Francisco’s Union Square. Defendants urge the Court to dismiss all seven causes of action, with the exception of Plaintiffs’ as-applied challenge to the enforcement of section 7.08(d) and their 42 U.S.C. § 1983 claim against the City to the extent it is based on such enforcement.

II. REQUEST FOR JUDICIAL NOTICE

Defendants request judicial notice of three documents: (1) a copy of San Francisco Park Code section 7.15; (2) a copy of San Francisco Park Code section 7.08 as it was in effect at the time of the incident in this case, prior to amendment pursuant to Ordinance No. 120819; and (3) a copy of Ordinance No. 120819. Request for Judicial Notice (“RJN”), Docket No. 63. Plaintiffs do not contest the validity of any of these documents. See Pl.’s Opp’n, Docket No. 67. “Municipal ordinances are proper subjects for judicial notice.” Tollis v. County of San Diego, 505 F.3d 935, 938 n. 1 (9th Cir.2007). Thus, the Court takes judicial notice of these three documents.

When section 7.08(d) was in effect, it read, in relevant part, that

Union Square ... [is a] frequent site[ ] for the issuance of permits involving large groups of people. In order to prevent interference with the progress and enjoyment of these events, no person may engage in petitioning, leaflet-ting, demonstrating or soliciting in th[is] park[ ] while an event is in progress for which a permit has been issued by the Recreation and Park Department except in [the] area[] described below as [a] public assembly area[ ]. No person shall be considered in violation of the prohibition contained in this subsection until he or she has been informed by a member of the San Francisco Police Department, a member of the Park Patrol, or a member of the Recreation and Park Department who displays proper identification of such employment that the event is being conducted pursuant to a valid permit or until the permit pursuant to which the event is being conducted has been shown to such person. The area[ ] in which petitioning, leafletting, demonstrating and soliciting [is] prohibited during permitted events and the designated public assembly area[ ] during permitted events [is] described below.

Union Square—The prohibited area is the western half (Powell Street side) of the Square. The public assembly area is the eastern half (Stockton Street side) of the Square.

RJN Ex. B. Section 7.08(d) was repealed following the filing of Plaintiffs’ complaint. See RJN Ex. C.

Section 7.15 reads, in full:

Any person possessing a valid permit, which states that an area has been reserved for such person’s use, has the exclusive right to use the area or facility specified in the permit for the time specified. It shall be unlawful for any person to refuse to leave an area or facility which has been reserved by a valid permit when asked to do so by the person or party displaying such permit, by a Recreation and Park Department employee, by a police officer, or by a member of the Park Patrol, and no person shall in any manner disturb or interfere with any person or party occupying the area under such a permit, nor with the belongings of such person or party.

RJN Ex. A.

III. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Cuviello, Bolbol, and Felsinger are animal rights activists affiliated with Humanity Through Education, a San Francisco Bay Area group that demonstrates regarding the condition and treatment of animals kept by circuses. FAC, Docket No. 52, ¶¶ 20-23. On September 2, 2011, the Ringling Bros. and Barnum & Bailey Circus (“Ringling Bros.”) held a promotional event in downtown San Francisco at Union Square, a 2.6 acre public plaza. Id. ¶ 24. Plaintiffs and others attended the event to hold signs, hold banners, and distribute leaflets regarding the circus’s mistreatment of animals. Id. ¶ 25.

When Plaintiffs Cuviello and Bolbol arrived, they were approached by Defendants Yu and Mitra (collectively, the “Officers”), who told them that Ringling Bros. had a permit to use Union Square and that, if Plaintiffs wished to demonstrate, they would have to do so in the designated free speech box, an approximately 20 feet by 20 feet area cordoned off with bike racks in the southeastern corner of Union Square. Id. ¶ 31. Yu told Cuviello and Bolbol that if they demonstrated outside of this free speech area, they would be cited for violation of section 7.15. Id. ¶ 33. Cuviello and Bolbol told Yu and Mitra that Union Square was a public forum and asked Yu to call his watch commander to clarify the law. Id. ¶ 34. Cuviello and Bolbol then went up to the northwestern area of the square and unfurled a banner reading “Ringling Bros. Beats Animals” so that it was viewable by the public watching the circus’s performance. Id. Yu and Mitra grabbed hold of the banner and, despite Plaintiffs’ protest to not touch their property, attempted to pull it down while Cuviello and Bolbol were attempting to hold it up. Id. ¶ 35. Cuviello and Bolbol struggled with Yu and Mitra for several minutes. Id. Mitra told Cuviello that the property was “private” and that Plaintiffs were trespassing by demonstrating outside the free speech zone designated by the officers. Id.

After this incident, Yu informed Cuviello and Bolbol they would be handcuffed and given a citation for violation of San Francisco Park Code section 7.08(b), which prohibits demonstration that substantially obstructs traffic of pedestrians or vehicles. Id. ¶ 36. Cuviello asked to see the San Francisco Park Code and Defendant Yu gave him a copy of excerpts of the code. Id. Yu then told Cuviello that he would only be cited if he continued to protest outside the free speech area. Id. ¶ 39. Cuviello responded that he would take the citation and Yu proceeded to write the citation, taking about fifteen minutes to do so. Id. ¶ 40. During this time, Plaintiff Felsinger arrived and began holding a sign about ten feet from where Cuviello was being cited. Id. ¶ 42. When Yu finished the citation, Cuviello observed that he was cited for violation of section 7.08(d). Id. ¶ 43. After Yu issued the citation, he and Mitra reiterated to Plaintiffs that they could only demonstrate in the designated free speech area. Id. ¶ 46. Yu then proceeded to cite Felsinger for violation of section 7.08(d). Id. Because Bolbol did not have identification, Yu told her she would not be cited and released, but instead taken into custody and transported to the police station for identification. Id. ¶ 48. Based on this threat of arrest, Bolbol ceased demonstrating and leafleting. Id.

After Felsinger asked Yu to confirm that the demonstrators could only demonstrate in the free speech area, Felsinger and Yu looked at the Park Code together. Id. ¶¶ 51-52. Felsinger pointed out that the Park Code stated that demonstrations were allowed on the entire eastern side of Union Square. Id. ¶52. Felsinger and Cuviello then called over their attorney, Whitney Leigh, who agreed that section 7.08(d) permitted demonstrations in the entire eastern half of Union Square. Id. ¶ 53. Yu told Plaintiffs that “the Park” designated the free speech area and claimed that he never told Plaintiffs they had to be in the free speech area. Id. Bolbol then asked Yu if they had to remain in the free speech area, to which Yu responded “no comment” and then told Plaintiffs to wait for his sergeant to arrive. Id. ¶ 54. Based on Plaintiffs’ concern that the event would be over by the time the sergeant arrived, Plaintiffs’ attorney then asked Yu whether the demonstrators could go outside the free speech area. Id. ¶ 55. Yu responded that they could “as long as it doesn’t interfere with the performance.” Id. Plaintiffs and the other demonstrators then set up their banner behind the stage on the eastern side of Union Square and passed out leaflets on the eastern side of Union Square. Id. ¶ 56. Shortly thereafter, San Francisco Police Sergeant Ed Garcia arrived and confirmed that the Park Code allowed Plaintiffs to demonstrate in the eastern half of Union Square, not just the southeastern corner. Id. ¶ 57.

Plaintiffs allege that they were the only individuals restricted to the free speech area and to the eastern half of Union Square, as other individuals, including Ringling employees engaged in pro-circus speech and members of the public, were allowed to move freely through Union Square. Id. ¶ 59.

Plaintiffs Cuviello, Bolbol, and Felsinger filed their initial complaint in this matter on June 12, 2012, asserting claims against the City, the San Francisco Recreation and Park Department, Yu, and Mitra. Docket No. 1. Defendants subsequently-filed their first motion to dismiss on September 14, 2012. Docket No. 47. In lieu of responding, Plaintiffs filed their First Amended Complaint, the subject of the current motion to dismiss, on September 28, 2012. FAC, Docket No. 52. Defendants’ current motion ensued. Docket No. 62.

Plaintiffs’ First Amended Complaint includes the following seven causes of action, which are brought by all Plaintiffs against all Defendants unless otherwise noted: (1) a § 1983 claim arising under (a) the First Amendment right to free speech, (b) the Fourth Amendment right to be free from unlawful seizure, false arrest, and excessive force, and (c) the Fourteenth Amendment right to equal protection under the law; (2) conspiracy to violate the First, Fourth, and Fourteenth Amendments, as well as article I, section 2(a) of the California Constitution pursuant to § 1983 and 42 U.S.C. § 1985; (3) violation of liberty of speech pursuant to article I, section 2(a) of the California Constitution; (4) a facial and as-applied challenge to section 7.08(d) against only the City; (5) a facial and as applied challenge to section 7.15 against only the City; (6) violation of California Civil Code section 52.1; and (7) illegal expenditure of funds pursuant to California Code of Civil Procedure section 526a brought by only Felsinger. Docket No. 52, ¶¶ 99-133.

IV. DISCUSSION

A. Legal Standard

Under Federal Rules of Civil Procedure, Rule 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. See Fed. R.Civ.P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). In considering such a motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although "conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). While "a complaint need not contain detailed factual allegations ... it must plead `enough facts to state a claim to relief that is plausible on its face.’" Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "The plausibility standard is not akin to a `probability requirement,’ but it asks for more than sheer possibility that a defendant acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

B. Section 1983 (First Cause of Action)

Plaintiffs’ first cause of action brought pursuant to 42 U.S.C. § 1983 consists of three separate sub-claims arising under the First, Fourth, and Fourteenth Amendments to the U.S. Constitution. The Court addresses each in turn.

1. First Amendment (§ 1983)

Following the parties’ concessions, Plaintiffs’ First Amendment sub-claim seeks damages from all Defendants based on enforcement of section 7.08(d) and section 7.15, but declaratory and injunctive relief only as to section 7.15 (section 7.08(d) has been repealed). Defendants challenge Plaintiffs’ First Amendment subclaim on the grounds that Plaintiffs lack standing to seek declaratory or injunctive relief regarding enforcement of section 7.15; Plaintiffs fail to state a claim regarding the facial or as-applied constitutionality of section 7.15; Plaintiffs have not pled sufficient facts to state a claim against the City based on their relocation to the southeastern portion of Union Square, pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); and Defendants Yu and Mitra are entitled to qualified immunity.

As confirmed at the hearing in this matter, Defendants do not contest this cause of action as against the City to the extent it asserts a Monell claim and as-applied challenge based on enforcement of section 7.08(d). See Defs.’ Mot., Docket No. 62, at 1:25-27; Hr’g Tr., Docket No. 77, 3:22-24.

a. Standing for Injunctive and Declaratory Relief

As a preliminary matter, Defendants assert that Plaintiffs lack standing to pursue injunctive and declaratory relief with respect to section 7.15.

1. Legal Standard

In order to bring suit in an Article III court, a plaintiff must present a justiciable "case or controversy." Benton v. Maryland, 395 U.S. 784, 788, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). To satisfy the "case or controversy" requirement of Article III, a plaintiff must demonstrate that he has standing, which requires the plaintiff have suffered "injury in fact," that the injury is "fairly traceable" to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and alterations omitted). Where a plaintiff seeks injunctive relief, "[p]ast exposure to illegal conduct does not in itself show a present case or controversy ... if unaccompanied by any continuing, present adverse effects." O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Rather, a plaintiff "must demonstrate that [he is] realistically threatened by a repetition of the violation" at issue. Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir.2006) (quotation marks and citations omitted, emphasis in original). "`[S]ome day’ intentions without any description of concrete plans, or indeed even any specification of when the some day will be," do not suffice to provide standing for injunctive relief. See Lujan, 504 U.S. at 564, 112 S.Ct. 2130. In other words, "there must be a `genuine threat of imminent prosecution [or enforcement].’" Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc) (quoting San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th Cir. 1996)).

In evaluating the threat of future enforcement of a challenged law, courts consider (1) “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question”; (2) “whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings”; and (3) “the history of past prosecution or enforcement under the challenged statute.” Id. Where a plaintiff has alleged facts showing enforcement of a challenged law against him, he satisfies the second and third prong of this three-factor test. See Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 836-37 (9th Cir.2012); see also Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir.2010) (standing depends on whether (1) plaintiffs have shown “a reasonable likelihood that the government will enforce the challenged law against them”; (2) plaintiffs have “established, with some degree of concrete detail, that they intend to violate the challenged law”; and (3) “the challenged law is inapplicable to the plaintiffs, either by its terms or as interpreted by the government”). Government refusal to disavow future enforcement of a challenged law weighs in favor of granting standing. See American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 508 (9th Cir.1991).

In Thomas, the plaintiffs were landlords with religious objections to unmarried cohabiting couples who sought to challenge laws prohibiting housing discrimination based on marital status. 220 F.3d at 1137. The court found that the plaintiffs could not establish standing because they failed to make a sufficient showing under any of the three prongs of the standing test outlined above. Id. at 1139-40. While they stated that they would turn away potential renters who were unmarried couples, the court found this stated intent too speculative, as any violation of the law would be contingent on an unmarried couple at some point in the future seeking to rent from the plaintiffs. Id. The court also found that there was neither an individual threat of prosecution, nor a history of the relevant agency vigorously enforcing the statute. Id. at 1140. In the twenty-five years the statutes had been on the books, there had been no criminal prosecutions and only two civil enforcement actions, both of which had been precipitated by complaints from actual tenants. Id.

By way of contrast, in Oklevueha, the Ninth Circuit, in analyzing the first factor of the Thomas test requiring the plaintiffs articulate a “concrete plan” to violate the law in question, noted that the plaintiffs had sufficiently alleged a concrete plan because they had used marijuana in violation of the Controlled Substances Act and planned to continue to do so, alleging specific facts regarding daily and semi-monthly marijuana usage. Oklevueha, 676 F.3d at 836. In analyzing the second factor, which requires a plaintiff to show the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, the court found that, even though the plaintiffs had never been arrested in connection with their marijuana consumption, they did not need to “allege a threat of future prosecution because the statute ha[d] already been enforced against them” by the government’s seizure of their marijuana. Id. Lastly, as for the third factor, which requires a plaintiff show a history of past prosecution or enforcement under the challenged statute, the court found that, “because the CSA ha[d] already been enforced against Plaintiffs through the seizure of their marijuana,” the plaintiffs fulfilled the third factor. Id. at 837.

2. Application

Plaintiffs have alleged different operative facts with respect to Cuviello and Bolbol’s standing to challenge section 7.15 (as opposed to Felsinger’s standing). As for Cuviello and Bolbol, Plaintiffs cite to paragraphs 31 through 35 of their FAC, which state, in relevant part:

31. PLAINTIFFS CUVIELLO and BOLBOL were approached by DEFENDANTS YU and MITRA and told that Ringling Bros. Circus had a permit to use the Square and if Plaintiffs wished to demonstrate they would have to do so in the designated free speech box, an approximately 20 feet by 20 feet area cordoned off with bike racks, in the Southeastern corner of the square, which had been set-up prior to Plaintiffs’ arrival in the square....

33. DEFENDANT YU told Plaintiffs that if they demonstrated outside the free speech area designated by he and DEFENDANT MITRA, they would be cited for violation of San Francisco Park Code 7.15....

34 .....Plaintiffs then went up to the Northwestern area of the Square and unfurled their banner, that read “Ringling Bros. Beats Animals,” so that it was viewable by the public watching the Circus’ performance.

35. DEFENDANTS YU and MITRA grabbed hold of Plaintiffs’ banner and, despite Plaintiffs’ protest to not touch their property, the officers grabbed Plaintiffs’ banner and attempted to pull it down while Plaintiffs were attempting to hold it up. PLAINTIFFS CUVIELLO and BOLBOL, in their attempt to display their banner, struggled with YU and MITRA for several minutes. DEFENDANT MITRA told PLAINTIFF CUVIELLO that the property was “private” and that Plaintiffs were trespassing for demonstrating outside the free speech zone designated by the officers.

FAC ¶¶ 31, 33-35.

Here, section 7.15 contains essentially two independent restrictions; it provides that (1) it is “unlawful for any person to refuse to leave an area or facility which has been reserved by a valid permit when asked to do so” and (2) “no person shall in any manner disturb or interfere with any person or party occupying the area under such a permit, nor with the belongings of such person or party.” RJN Ex. A.

Construing the facts in the light most favorable to Plaintiffs, Defendants Yu and Mitra enforced both restrictions against Plaintiffs. As for the first restriction, Yu told Plaintiffs that they could not demonstrate outside the free speech area and that they would be cited for violation of section 7.15 if they demonstrated outside the free speech area, effectively a preemptive request for Plaintiffs to leave the area outside the free speech zone. FAC ¶¶ 31, 33. Defendants Yu and Mitra then tore down Plaintiffs’ banner when they did demonstrate outside the free speech area, thereby enforcing section 7.15. See FAC ¶ 35; see also Black’s Law Dictionary (9th ed. 2009) (“enforcement” is “[t]he act or process of compelling compliance with a law....”). Not only was this an arguable enforcement of the first provision of section 7.15, but also an enforcement of the second provision which provides that “no person shall in any manner disturb or interfere” with a permitted event. In this regard, this case resembles Oklevueha, 676 F.3d at 835, in which the seizure of the plaintiffs’ marijuana from FedEx was held to constitute enforcement, even though the plaintiffs were not subject to prosecution.

In addition, the City has not disavowed its ability to employ section 7.15 to stop demonstrators in the future, and thus section 7.15 could be similarly invoked in the future. See Defs.’ Mot. 5-7; Defs.’ Reply 1-4; Am.-Arab Anti-Discrimination Comm., 970 F.2d at 508 (failure to disavow weighs in favor of standing).

However, Plaintiffs must still “artieulate[] a ‘concrete plan’ to violate the law in question.” Thomas, 220 F.3d at 1139. In order to fulfill this first prong, a plaintiff must allege more than just “[a] general intent to violate a statute at some unknown date in the future .... ” Id. Here, Plaintiffs do not even aver to a general intent to violate either restriction in section 7.15 in the future, let alone any concrete plans to do so. Rather, they generally allege that Cuviello and Bolbol are “members of Humanity through Education, a San Francisco Bay Area grassroots group dedicated to the humane treatment of animals,” and that they speak out by “holding signs and banners, exhibiting video footage of various circuses’ treatment of different animals, and offering leaflets with information about the condition and treatment of animals kept by circuses.” FAC ¶22. In order to have standing, Plaintiffs must allege facts showing “concrete plans” to violate each restriction of section 7.15. At a minimum, Plaintiffs must allege facts showing plans to conduct similar demonstrations in an area in San Francisco which has been reserved by permit, a requisite to the enforcement of section 7.15. They have not done so. Nor have they alleged facts suggesting that they have cancelled planned future demonstrations at permitted events for fear of enforcement of section 7.15.

Felsinger fails to an even greater extent to plead facts showing his intent to violate section 7.15; in fact, his allegations show he is not likely to violate section 7.15. Felsinger’s activities are alleged in the past tense: he “frequented Humanity Through Education demonstrations prior to moving out of state.” Id. ¶ 21. As Felsinger has now moved out of state, it is highly unlikely that he will be able to allege facts showing concrete plans to violate section 7.15 in the future. See Lujan, 504 U.S. at 564, 112 S.Ct. 2130 (“some day” intentions without description of concrete plans or specification of when that some day will be do not suffice). Moreover, unlike for Cuviello and Bolbol, section 7.15 was never enforced against Felsinger, as he did not arrive at the scene until after Yu threatened to enforce section 7.15 and subsequently did so by taking Cuviello’s and Bolbol’s banner. See id. ¶¶ 33, 35, 42. At best, Felsinger has pled that the second provision of section 7.15 was enforced against Cuviello and Bolbol, which does not lend much weight to a finding of standing for him. See Thomas, 220 F.3d at 1140-41 (looking at record of enforcement of statute showing only two instances of civil enforcement). He does “not claim that [he has] ever been threatened with prosecution, that prosecution is likely, or even that prosecution is remotely possible,” as required by the second prong of the three-factor test. See id. at 1140.

Thus, the Court GRANTS Defendants’ motion to dismiss Plaintiffs’ claim for prospective relief based on section 7.15. The Court dismisses such prospective relief without prejudice and with leave to amend. Thus, even though Plaintiffs do not have standing to pursue declaratory or injunctive relief with respect to their as-applied challenge, they do have standing to seek damages.

b. Damages

Regardless of Plaintiffs’ standing to seek prospective relief, the Court must still consider whether they have adequately set forth a claim for damages based on violation of the First Amendment. Here, Plaintiffs allege essentially three different actions on the part of Officers Yu and Mitra that could constitute a violation of Plaintiffs’ rights under the First Amendment:

1. Plaintiffs allege that Officer Yu threatened them with citation and arrest if they demonstrated outside of the designated free speech area. See FAC ¶¶ 33, 39.

2. Plaintiffs allege that Officers Yu and Mitra tore down their banner when they demonstrated in the northwestern corner of Union Square. See id. ¶¶ 34-35.

3. Plaintiffs allege that they were cited with violation of section 7.08(d). See id. ¶ 43.

Analysis of each action requires separate analysis of each Defendant’s liability.

Moreover, Plaintiffs allege alternate theories for these actions: first, that they constitute enforcement of unreasonable, content-neutral time, place, or manner restrictions and, second, that they were aimed at Plaintiffs because of the viewpoint of their speech, each of which requires separate analysis. See, e.g., FAC ¶ 89.

In Moss v. U.S. Secret Serv., 675 F.3d 1213 (9th Cir.2012) (Moss II), amended by 711 F.3d 941, 963-66 (9th Cir.2013), the Ninth Circuit considered the distinction between a content-neutral policy as opposed to a viewpoint-based application of such a policy. In Moss II, the plaintiffs brought a Bivens action against two United States Secret Service agents assigned to protect President George W. Bush during a 2004 campaign appearance in Oregon. 675 F.3d at 1219-20. The plaintiffs, anti-Bush demonstrators, alleged that they were subjected to a security perimeter that was not equally applied to pro-Bush demonstrators. Id. The court noted that, while content-neutral time, place, or manner “buffer zones” may be upheld where “content and viewpoint neutral,” they are invalid where enforcement is based on viewpoint discrimination. See 711 F.3d at 964-66 (citing Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)).

1. Viewpoint Discrimination

Plaintiffs allege that they were targeted because of their anti-circus views in violation of the First Amendment. See FAC ¶¶ 75, 80-81, 89, 92. For either the City or the Officers to be liable for violation of Plaintiffs’ First Amendment rights, there must first be “an underlying constitutional deprivation or injury.” See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (municipal liability); Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (officer liability). If the Court finds that there is an underlying constitutional deprivation or injury, it still must consider whether such deprivation or injury was the result of an official custom or policy in order to hold the City liable under a Monell theory and whether the Officers are entitled to qualified immunity,

(a) Underlying Violation

It is well established that viewpoint discrimination by the government contravenes the First Amendment. “ ‘[Viewpoint discrimination’ occurs when the government prohibits ‘speech by particular speakers,’ thereby suppressing a particular view about a subject.” Giebel v. Sylvester, 244 F.3d 1182 (9th Cir.2001) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 59, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (Brennan, J. dissenting)). “A restriction on speech is viewpoint-based if (1) on its face, it distinguishes between types of speech or speakers based on the viewpoint expressed; or (2) though neutral on its face, the regulation is motivated by the desire to suppress a particular viewpoint.” Moss II, 675 F.3d at 1224. To prevail in a viewpoint discrimination claim, a plaintiff must establish that the government took action against it “because of not merely in spite of’ its message. See Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) (Moss I).

In Moss v. U.S. Secret Service, multiple iterations of the complaint were analyzed by the Ninth Circuit, demonstrating just what sort of allegations are sufficient to demonstrate government intent to target on the basis of viewpoint. The first iteration of the complaint, was subject to the methodology laid out in Iqbal in assessing a motion to dismiss, whereby

[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Moss I, 572 F.3d at 970 (quoting Iqbal, 129 S.Ct. at 1950).

First, the Ninth Circuit determined that “[t]he bald allegation of impermissible motive on the [Secret Service] Agents’ part, standing alone, [was] conclusory and [was] therefore not entitled to an assumption of truth.” Id. Moreover, it determined that an allegations of “officially authorized sub rosa Secret Service policy of suppressing speech critical of the President” and “systematic viewpoint discrimination at the highest levels of the Secret Service, without any factual content to bolster it” were insufficient under Iqbal. Id. Second, the court “evaluate[d] Plaintiffs’ specific factual allegations to determine whether [it could] reasonably infer a First Amendment violation from those facts.” Id. The plaintiffs alleged that Secret Service Agents had “ordered the relocation of their demonstration, but left a similarly situated pro-Bush demonstration undisturbed” and that diners and guests inside an inn where the President was visiting “were not subjected to security screening or asked to leave the premises, despite their close proximity to the President.” Id. at 971. The court determined that neither factual allegation was sufficient, as Plaintiffs alleged that they were moved “to a location situated a comparable distance from the Inn as the [pro-Bush] demonstrators,” Plaintiffs failed to allege how the Secret Service Agents’ actions were tied to those of the local police, and the diners and guests inside the inn “did not engage in expressive activity of any kind and were not located in the public areas outside of the Inn .... ” Id.

In Moss II, the Ninth Circuit considered a subsequent iteration of the complaint in the same case. In their revised complaint, the plaintiffs added additional factual allegations that “the agents did indeed direct that the anti-Bush demonstration be moved farther from the Inn than the pro-Bush demonstration” as well as “twelve detailed allegations, relying on published reports, of similar instances of viewpoint discrimination against protestors expressing negative views of the President.” 675 F.3d at 1224-26. This was found sufficient to state a claim of viewpoint discrimination.

Here, in addition to conclusory averments that sections 7.08(d) and 7.15 were “used for the purpose of interfering with and preventing PLAINTIFFS’ exercise of constitutionally-protected rights of free expression,” that Defendants “[r]etaliat[ed] against Plaintiffs for their exercise of their First Amendment rights,” and that Defendants “[s]ingl[ed] out Plaintiffs because of their viewpoints and the perceived content of their expression” (see FAC ¶¶ 75, 80-81, 89, 92), Plaintiffs allege more specific facts to substantiate their allegations of motive. First, they allege that “Ringling routinely communicates and confers with municipalities about their desires and expectations at events it holds on public property”; the communications included comments on “how to handle anticipated animal rights’ demonstrators and restrict free speech activity,” including past instances in Oakland, Stockton, and San Jose in which it “me[t] with public entities to establish specific security protocols regarding animal rights demonstrators”, “directing] security to prohibit animal rights’ demonstrators from accessing certain areas normally open to the public” and “instigating] the unlawful arrests of animal rights’ demonstrators.” Id. ¶¶ 71-72. It is a reasonable inference that the police in this instance acted at the request or behest of Ringling. Furthermore, Plaintiffs allege that, while they were prohibited from demonstrating in the western half of Union Square, “other members of the public [were allowed] to move freely throughout the Square, including Ringling employees who were engaging in pro-Cireus free speech activities without restriction” and “promoting] ... the Circus event that Plaintiffs sought to protest.” Id. ¶¶ 50, 59, 73. While the latter allegation does not establish a Fourteenth Amendment violation as discussed below, it does provide some support of Plaintiffs claim of viewpoint discrimination in meeting the pleading requirements of Twombly and Iqbal.

While not as specific as the allegations in Moss II, the Court finds the allegations sufficient to state a plausible claim of viewpoint discrimination.

(b) City Liability

In order to hold the City liable for the Officers’ enforcement of the free speech area, Plaintiffs must show under Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), that (1) “a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity”; (2) “the individual who committed the constitutional tort was an official with final policy-making authority”; or (3) “an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it.” See Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.1992) (internal citations and quotation marks omitted). Plaintiffs “must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Board of County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

Here, Plaintiffs’ complaint does not contain any allegations suggesting that any viewpoint discrimination against them was committed or ratified by an official with final policy-making authority, thus leaving only the first potential basis for Monell liability. Pursuant to the first prong of Monell liability, Plaintiffs only identify two potential policies as the basis for the City’s Monell liability—section 7.08(d) and section 7.15—and do not identify any longstanding practice or custom of viewpoint discrimination.

Regardless of whether section 7.08(d) or section 7.15 undergirds its analysis, the Court cannot find an allegation of a policy, as identified by Plaintiffs, resulting in any unlawful viewpoint discrimination. To succeed in their viewpoint discrimination claim under Monell, Plaintiffs must demonstrate that either ordinance was the “moving force” behind such viewpoint discrimination. However, the crux of Plaintiffs’ viewpoint discrimination claim is that their treatment was “motivated by the desire to suppress a particular viewpoint.” Moss II, 675 F.3d at 1224. Plaintiffs have not alleged facts from which it can be inferred that either section 7.08(d) or section 7.15, which are neutral on their face, were the moving force behind a desire to suppress Plaintiffs’ viewpoint. Cf. Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1238 (9th Cir.1994) (where one of multiple municipal decision-makers acts on account of unconstitutional motive, insufficient to confer municipal liability if other decision-makers not so motivated); Valentino v. Village of South Chicago Heights, 575 F.3d 664, 675 (7th Cir.2009) (where official, using discretion conferred, acts based on unconstitutional motive, no municipal custom). Thus, Plaintiffs have not set forth a basis for holding the City liable for viewpoint discrimination.

(c) Qualified Immunity

Qualified immunity shields government officials from personal liability when they have not violated a "clearly established" constitutional right. Camreta v. Greene, — U.S. —, 131 S.Ct. 2020, 2030-31, 179 L.Ed.2d 1118 (2011). In determining whether qualified immunity applies at the motion to dismiss stage, courts consider (1) "whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right"; and (2) "whether the right at issue was `clearly established’ at the time of defendant’s alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The second inquiry contains its own two-part inquiry, asking whether (1) "the law governing the state official’s conduct [was] clearly established"; and (2) "[u]nder that law [] a reasonable state official [could] have believed his conduct was lawful." Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir.2002). As for whether the law was clearly established, a case directly on point is not required if existing precedent places the statutory or constitutional question of the particular right at issue beyond debate. Ashcroft v. Al-Kidd, — U.S. —, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011).

Relevant to consideration of whether the official’s conduct was “reasonable,” qualified immunity protects an officer from enforcing an unconstitutional ordinance when that ordinance has been “duly promulgate by the city council and it [is] not so obviously unconstitutional as to require a reasonable officer not to enforce it.” Acosta v. City of Costa Mesa, 694 F.3d 960, 980 (9th Cir.2012) (quotation marks and citation omitted). However, an officer may nevertheless be liable for enforcement of an unconstitutional ordinance where it is “patently violative of fundamental constitutional principles” or where the officer “unlawfully enforces an ordinance in a particularly egregious manner, or in a manner which a reasonable officer would recognize exceeds the bounds of the ordinance, ... even if there is no clear case law declaring the ordinance or the officer’s particular. conduct unconstitutional.” Grossman v. City of Portland, 33 F.3d 1200, 1209-10 (9th Cir.1994).

Here, regardless of whether the Officers were acting pursuant to section 7.08(d) and section 7.15 in targeting Plaintiffs because of their viewpoint, “it is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Moss II, 675 F.3d at 1228 (quotation marks, alteration, and citation omitted). As discussed above, Plaintiffs have made various allegations that the Officers “singl[ed] out Plaintiffs because of their viewpoints and the perceived content of their expression” and provided specific examples of past collusion between Ringling Bros. and other municipalities to target Plaintiffs because of their viewpoints. See FAC ¶¶ 50, 59, 71-73, 75, 80-81, 89, 92. Regardless of whether a case is directly on point, “[i]t is beyond debate that, particularly in a public forum, government officials may not disadvantage speakers based on their viewpoint.” Moss II, 675 F.3d at 1228. Thus, Plaintiffs have alleged sufficient facts to overcome qualified immunity on the part of the Officers. “After discovery or trial, the evidence could demonstrate that the [Officers] did not, in fact, act with viewpoint discriminatory intent or that, notwithstanding some discriminatory motivation, they acted with [a constitutionally valid] primary intent ... and therefore would have taken the same actions absent any discriminatory motive. In that case, they are, of course, free to renew their qualified immunity motion.” Id. at 1228-29. At this juncture, however, qualified immunity does not prevent the claim of viewpoint discrimination from proceeding.

2. Content-Neutral Time, Place, or Manner Restriction

In addition to viewpoint discrimination, Plaintiffs further assert Defendants’ actions constituted enforcement of unreasonable time, place, or manner restrictions. In this regard, for purposes of this motion, the Court construes the complaint as alleging the Officers’ actions in enforcing sections 7.08(d) and 7.15 without subjective intent to discriminate on the basis of viewpoint.

The First Amendment permits content-neutral regulation of speech in the form of “time, place, or manner” restrictions. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Courts employ a three-part test for determining the legality of time, place, or manner restrictions, asking whether (1) the restrictions are justified without reference to the content of the regulated speech; (2) the restrictions are narrowly tailored to serve a significant government interest; and (3) the restrictions leave open ample alternative channels for communication of the information. Id. (citations omitted). It is the government’s burden to justify a time, place, or manner restriction after a plaintiff demonstrates it impinges on First Amendment interests. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

For example, in Kuba v. 1-A Agr. Ass’n, 387 F.3d 850, 852 (9th Cir.2004), the Ninth Circuit squarely considered a ban on demonstrating outside the entrance to a public facility save in certain designated “free expression zones,” none of which was near an entrance to the building. While deciding the case under California law, it noted that both the California Constitution and the First Amendment require that “permissible restrictions on expression in public fora must be content-neutral, be narrowly tailored to serve an important government interest, and leave open ample alternative channels for the communication of the message,” and thus considered the “free expression zones” in light of federal First Amendment precedent. Id. at 856, 858-63 (quotation marks and citation omitted). In considering the significance of the stated government interest of preventing congestion, the court noted that “the actual experience at the [facility] indicating how many protesters have shown up in the past is pertinent to judging the likely impact of allowing communication activity in the future,” ultimately ruling that there was insufficient support in the record for this allegation. Id. at 859-60. Next, considering the specific orientation and use of the facility, the court determined that the restriction was not narrowly tailored. Id. at 861-63.

(a) Threats of Arrest and Citation for Demonstrating Outside the Free Speech Area

First, Plaintiffs allege that Officer Yu threatened them with arrest and citation for demonstrating outside of the free speech area. See FAC ¶¶ 33, 39.

(i) Underlying Violation

Applying the analysis set forth in Kuba, the 20-by-20 foot free speech area clearly impinges on First Amendment interests, as it allowed demonstration on only 0.4% of the total acreage of Union Square and, to further isolate it, was surrounded by bicycle racks. See FAC, Docket No. 52, ¶¶ 24, 31. By way of contrast, section 7.08(d) allowed demonstration on the entire eastern half of Union Square, constituting 50% of the total acreage. Thus, Defendants shoulder the burden of demonstrating that the free speech area meets the three-part test for evaluating time, place, or manner restrictions. See Clark, 468 U.S. at 293 n. 5, 104 S.Ct. 3065. Viewing the complaint in Plaintiffs’ favor, the restriction imposed on Plaintiffs was neither narrowly tailored nor did it leave open ample alternative channels for communication of information. The enforcement of such a free speech zone was not narrowly tailored, as it restricted Plaintiffs to 0.4% of the total plaza. It did not leave open ample alternative channels for the communication of information, as Plaintiffs were effectively sequestered from the vast majority of event spectators to whom they wished to communicate. Thus, under Kuba, and viewing the facts in Plaintiffs’ favor, Plaintiffs have stated a claim that the restriction was not a reasonable time, place or manner restriction.

(ii) City Liability

As discussed above, in order to hold the City liable for the Officers’ enforcement of the free speech area, Plaintiffs must show under Monell that (1) “a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity”; (2) “the individual who committed the constitutional tort was an official with final policy-making authority”; or (3) “an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it.” See Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.1992) (internal citations and quotation marks omitted). Plaintiffs “must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Board of County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

As for the pleading standard for municipal liability, traditionally the rule in the Ninth Circuit was that "a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss `even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice.’" Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)). However, following the Supreme Court’s decisions in Twombly and Iqbal, courts in this circuit have moved from such a lax standard, instead requiring that plaintiffs plead facts showing a plausible claim for municipal liability. See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir.2012) (suggesting that longstanding rule may have changed post-Iqbal); see, e.g., Mateos-Sandoval v. County of Sonoma, No. C-11-5817 TEH, 942 F.Supp.2d 890, 898-99, 2013 WL 415600, at *4 (N.D.Cal. Jan. 31, 2013) ("Karim-Panahi has not been overruled, but the Ninth Circuit has recognized that, under the Supreme Court’s recent pleading jurisprudence, it is no longer clear that, without more, an allegation that an officer’s conduct `conformed to official policy, custom, or practice’ continues to be sufficient to state a claim under Monell."); Mirabal v. Smith, No. C-12-3075 SI, 2012 WL 5425407, at *2 (N.D.Cal. Nov. 6, 2012) ("It is not enough to allege simply that a policy, custom, or practice exists that caused the constitutional violations."). The precise parameters of what must be alleged are not well-defined, however.

In Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011), the Ninth Circuit set forth a pleading standard that appears to modify the traditional rule for stating a claim of municipal liability, requiring that “to be entitled to the presumption of truth, allegations in a complaint ... may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively” and “the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” See also AE ex rel. Hernandez, 666 F.3d at 637 (quoting Starr, 652 F.3d at 1216).

Here, Plaintiffs do not argue that the constitutional violations were committed by or ratified by an official with final policy-making authority, leaving only the policy basis for Monell liability. See Pls.’ Opp’n 22-24. Plaintiffs’ conclusory allegation that it was the “policy and/or custom” of the City to restrict Plaintiffs to a free speech area is insufficient. See Starr, 652 F.3d at 1216. The complaint must set forth some factual allegations that “plausibly suggest an entitlement to relief’ against the City. Here, the 20 feet by 20 feet restriction imposed by Officer Yu was in contravention of section 7.08(d). Nothing suggests the limit imposed by Officer Yu was a matter of city policy. See Gillette, 979 F.2d at 1346. Indeed, Plaintiffs allege that “San Francisco Police Sergeant Ed Garcia ... confirmed that the Code did allow them to demonstrate on the Eastern half of the square, not just in the Southeastern corner.” FAC, Docket No. 52, ¶ 57. To the extent Plaintiffs were at some point confined to the “free speech area,” that confinement was not sanctioned by (and indeed was in contravention of) section 7.08(d) and was quickly disavowed by Sergeant Garcia. There is no allegation the restriction has been imposed on a regular basis at Union Square.

For section 7.15, however, the analysis is more complicated. First, unlike with section 7.08(d) or the alleged general policy of creating a free speech area for Plaintiffs, Plaintiffs allege specific enforcement of the free speech area was based on section 7.15. Specifically, the complaint alleges that Officer Yu directly invoked section 7.15 when threatening Plaintiffs with citation for demonstrating outside of the free speech area. See FAC ¶ 33. Construing the facts alleged in the light most favorable to Plaintiffs, section 7.15 could thus and might be considered a moving force behind enforcement of the free speech area.

The question is whether the Officers’ putative enforcement of section 7.15 can be deemed pursuant to municipal policy. In this regard, it is necessary to compare the proper scope of section 7.15 with the actions taken by the Officers.

The interpretation of section 7.15 must be assessed in light of Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Department, 533 F.3d 780 (9th Cir.2008). In that case, the plaintiffs presented an as-applied challenge to California Penal Code section 626.8 (“section 626.8”), which provided that:

(a) Any person who comes into any school building or upon any school ground, or street, sidewalk or public way adjacent thereto, without lawful business thereon, and whose presence or acts interfere with the peaceful conduct of the activities of the school or disrupt the school or its pupils or school activities, is guilty of a misdemeanor if he or she does any of the following:

(1)Remains there after being asked to leave by the chief administrative official of that school or his or her designated representative, or by a ... sheriff or deputy sheriff ....

(2) Reenters or comes upon that place within seven days of being asked to leave by a person specified in paragraph (1).

(3) Has otherwise established a continued pattern of unauthorized entry.

This section shall not be utilized to impinge upon the lawful exercise of constitutionally protected rights of freedom of speech or assembly.

533 F.3d at 791. The court noted that if an ordinance “would allow or disallow speech depending on the reaction of the audience, then the ordinance would run afoul of an independent species of prohibitions on content-restrictive regulations, often described as a First Amendment-based ban on the ‘heckler’s veto.’” Id. at 787 (citations omitted). However, “[a] statute that restricts speech only when it is disruptive because of its manner, not its content, is an example of content-neutral regulation that has been affirmed time and again.” Id. at 790. Construing section 626.8 narrowly in order to preserve its constitutionality, as provided for under Supreme Court precedent, California case law, and the language of the statute itself, the court determined that section 626.8 was “intended to apply to manner rather than content of speech,” noting that its use of the terms “presence,” “acts,” “interfere,” and “disrupt” indicated that the statute was concerned with the physical aspects of the speaker’s behavior, not the content of her speech. Id. at 792. The Ninth Circuit did not determine whether section 626.8 was unconstitutional as applied, finding that, based on the facts on the record, it had been misapplied by the individual defendants in the case based on the content of the plaintiffs’ speech, which was outside the scope of the court’s narrow construction of section 626.8. See id. at 786, 793.

As discussed above, section 7.15 contains essentially two independent restrictions, providing that (1) it is “unlawful for any person to refuse to leave an area or facility which has been reserved by a valid permit when asked to do so” and (2) “no person shall in any manner disturb or interfere with any person or party occupying the area under such a permit, nor with the belongings of such person or party.” RJN Ex. A. The second restriction mirrors closely the statute at issue in Center for Bio-Ethical Reform, in that it includes the language “interfere” and “disturb,” which can and should be construed pursuant to Center for Bio-Ethical Reform as applying only to the physical aspects of the speaker’s behavior, not the content. So construed, the Court finds that the second restriction in section 7.15 is a lawful time, place, or manner restriction. To establish an unconstitutional municipal policy, Plaintiffs must show there was a practice of police in misconstruing section 7.15 and that the City was deliberately indifferent to the fact that it was being repeatedly employed to restrict demonstrators to unconstitutionally restrictive free speech areas. See 533 F.3d at 786, 793. Plaintiffs have not done so. No Monell claim lies to the extent enforcement was based on the second provision of section 7.15.

On the other hand, unlike the statute at issue in Center for Bio-Ethical Reform, the first restriction in section 7.15, stating that it is “unlawful for any person to refuse to leave an area or facility which has been reserved by a valid permit when asked to do so,” cannot be construed to address only the manner of speech. It does not contain words like “presence,” “acts,” “interfere,” and “disrupt” which are capable of being construed as aimed at conduct rather than the content of speech. See Center for Bio-Ethical Reform, 533 F.3d at 792. The first restriction instead is akin to the heckler’s veto discussed in Center for Bio-Ethical Reform, in that it “would allow or disallow speech depending on the reaction of the audience.” 533 F.3d at 787. The first provision of section 7.15 effectively gives unfettered discretion to the permit holder and law enforcement to banish others’ speech because it is disfavored by the permit holder. A heckler’s veto is presumptively unconstitutional. See, e.g., Bachellar v. Md., 397 U.S. 564, 567, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970) (“the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers or simply because bystanders object to peaceful and orderly demonstrations”) (quotation marks and citations omitted).

While many cases discussing similar heckler’s vetoes find them to be unconstitutional precisely because they enable content-based discrimination, the Ninth Circuit has found them to be unconstitutional even when applied as content-neutral time, place, or manner restrictions. In Gathright v. City of Portland, 439 F.3d 573, 575 (9th Cir.2006), the court held unconstitutional a substantially similar city ordinance providing that “it is unlawful for any person unreasonably to interfere with a permittee’s use of a Park” and related policy allowing permittees to “order a person to leave an open event when that person ‘unreasonably' interferes with the permittee’s use of the licensed space.” Assuming the limitation was a content-neutral restriction on speech, the court nevertheless concluded that “the policy of allowing permittees unfettered discretion to exclude private citizens on any (or no) basis is not narrowly tailored to the City’s legitimate interest in protecting its permittees’ right [to not be forced to include the words of a speaker expressing a message not of their choosing].” Id. at 577 (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 579, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)).

Like the ordinance in Gathright, the first restriction in section 7.15 “allows permittees unfettered discretion to exclude private citizens on any (or no) basis.” 439 F.3d at 577. It similarly contains no limitation on the discretion of the permittees, police officers, or RPD employees to exclude individuals. Thus, like the ordinance in Gathright, the restriction in section 7.15 providing that it is “unlawful for any person to refuse to leave an area or facility which has been reserved by a valid permit when asked to do so” permits an unconstitutional heckler’s veto. Here, as discussed above in the section on standing, Plaintiffs have sufficiently alleged that the first restriction in section 7.15 was the moving force behind Defendant Yu’s threat of citation, as Defendant Yu invoked section 7.15 in his threat. Thus, Plaintiffs have pled sufficient facts to proceed under Monell against the City based on Defendant Yu’s threat of citation to the extent that threat was based on the first provision of section 7.15.

(in) Officer Liability

Next, the Court must consider whether Officers Yu and Mitra may be held liable for threatening to cite Plaintiffs with violation of section 7.15 for demonstrating outside the free speech area. Plaintiffs only allege that Officer Yu threatened them with citation and arrest for demonstrating outside the free speech area. No such allegation is made against Officer Mitra, and thus Officer Mitra may not be held liable for such threats. As discussed above, Pl