Oxane Taub v. City & County of San Francisco , 696 F. App'x 181 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OXANE TAUB, "Gypsy"; GEORGE No. 15-16415
DAVIS,
D.C. No. 3:12-cv-05841-EMC
Plaintiffs-Appellants,
v. MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO POLICE
DEPARTMENT,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted May 18, 2017**
San Francisco, California
Before: TALLMAN and IKUTA, Circuit Judges, and OLIVER,*** Chief District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Solomon Oliver, Jr., United States Chief District
Judge for the Northern District of Ohio, sitting by designation.
Plaintiffs Oxane “Gypsy” Taub and George Davis (collectively,
“Plaintiffs”), self-described body freedom advocates, appeal the dismissal of their
claims under 42 U.S.C. § 1983 against the City and County of San Francisco and
the San Francisco Police Department (collectively, “Defendants”). Plaintiffs allege
that Defendants violated their First Amendment rights by enforcing San
Francisco’s public nudity ordinance, S.F., Cal., Police Code art. 2, § 154. We
review de novo the district court’s order granting Defendants’ motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Starr v. Baca, 652
F.3d 1202, 1205 (9th Cir. 2011). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. Public nudity is not inherently expressive, but it may in some circumstances
constitute expressive conduct protected under the First Amendment. City of Erie v.
Pap’s A.M., 529 U.S. 277, 289 (2000) (O’Connor, J.) (plurality opinion). Even if
Plaintiffs’ public nudity at political rallies was entitled to First Amendment
protection, however, we hold that the challenged ordinance is a valid, content-
neutral regulation as applied to Plaintiffs’ expressive conduct under United States
v. O’Brien, 391 U.S. 367 (1968). O’Brien is the applicable test here because the
ordinance is aimed at “the conduct itself, rather than at the message conveyed by
that conduct.” United States v. Swisher, 811 F.3d 299, 312 (9th Cir. 2016) (en
banc).
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The challenged ordinance satisfies each of the four O’Brien factors. See
O’Brien, 391 U.S. at 377. First, restricting public nudity falls within San
Francisco’s traditional police powers. Pap’s A.M., 529 U.S. at 296 (O’Connor, J.)
(plurality opinion). Second, the ordinance furthers San Francisco’s important and
substantial interests in protecting individuals “who are unwillingly or unexpectedly
exposed” to public nudity and preventing “distractions, obstructions, and crowds
that interfere with the safety and free flow of pedestrian and vehicular traffic.”
S.F., Cal., Police Code art. 2, § 154(a); see also Pap’s A.M., 529 U.S. at 296(O’Connor, J.) (plurality opinion) (describing the governmental interest in
regulating public nudity and its secondary effects as “undeniably important”);
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1024 (9th
Cir. 2009) (recognizing that cities have a substantial interest in “regulating streets
to protect and insure the safety, comfort, or convenience of the public” (internal
quotation marks omitted)). Third, San Francisco’s interest is unrelated to the
suppression of free expression, because the ordinance regulates public nudity
whether or not it is expressive. See Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 299 (1984). Fourth, “the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that
interest.” O’Brien, 391 U.S. at 377. The ordinance prohibits only exposure of
one’s “genitals, perineum, or anal region,” during daily activities in the streets of
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San Francisco, S.F., Cal., Police Code art. 2, § 154(b)–(c), which is essential to
meet the City’s goals of preventing distraction and offense to citizens not
expecting to be confronted with such private parts of other persons’ anatomy. See
O’Brien, 391 U.S. at 377.
For these reasons, we find that the challenged ordinance is a valid restriction
under the test set forth in O’Brien, and we affirm the district court’s dismissal of
Plaintiffs’ claims arising out of Defendants’ enforcement of the ordinance.
2. Plaintiffs’ claim that the public nudity ordinance constitutes an unlawful
prior restraint also fails. Assuming arguendo that Plaintiffs’ nudity at Bay to
Breakers and the Haight Street Fair in 2014 was expressive conduct, Plaintiffs
were issued citations after their allegedly expressive conduct had already occurred.
See Alexander v. United States, 509 U.S. 544, 550 (1993). Moreover, the
procedural requirements imposed on prior restraints do not apply to “a content-
neutral permit scheme regulating speech in a public forum,” Thomas v. Chi. Park
Dist., 534 U.S. 316, 322 (2002), much less to a content-neutral ordinance aimed at
conduct.
Nor did the Defendants’ denials of (or failure to respond to) Plaintiffs’
parade permit applications violate Plaintiffs’ First Amendment rights. Although a
content-neutral permit requirement may be invalid under the First Amendment if
the ordinance “delegates overly broad discretion to the decisionmaker,” Forsyth
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County v. Nationalist Movement, 505 U.S. 123, 129 (1992), here the permitting
ordinance “contain[s] adequate standards to guide [officials’] discretion,” and
Plaintiffs have not otherwise presented “evidence of a pattern of abuse” to suggest
that the Defendants favored some permit applicants over others, S. Or. Barter Fair
v. Jackson County, 372 F.3d 1128, 1139–40 (9th Cir. 2004) (internal quotation
mark omitted) (quoting Thomas, 534 U.S. at 323).
3. The district court did not abuse its discretion in refusing to grant Plaintiffs
leave to further amend their complaint. Plaintiffs request leave to amend the
Second Amended Complaint in order to plead additional facts relating to the
expressiveness of their nude rallies and demonstrations. Because we conclude that
San Francisco’s public nudity ordinance is a valid regulation under the O’Brien
test, even if we assume that more of Plaintiffs’ conduct was likely to communicate
a message to those who saw it, Plaintiffs’ complaint would not be saved through
further amendment.
The district court’s dismissal of Plaintiffs’ complaint is AFFIRMED. Each
party shall bear their own costs of this appeal.
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